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tain, and operate dams, canals, reservoirs, payment into the treasury of the state the and the appurtenances necessary or useful for the purpose of developing water power and electrical energy, at such point or points adjacent to the south shore of the St. Lawrence river, and in and upon the river bed near Long Sault island or Barnhart's island, as may be selected by the company; to erect and maintain power houses and electrical transmission appliances; and to construct a bridge or bridges across the river, in connection with the dam authorized, and to charge tolls for passage thereon.

These important rights are declared to be granted upon various specified conditions, the most important of which is "that the rights hereby granted shall never be so used aз to impair or obstruct the navigation of the Saint Lawrence river, but, on the contrary, that such navigation shall be preserved in as good condition as, if not better than, the same is at present, regard being always had to the amount of the natural flow of water in said river as affecting its navigability from time to time." [Section 3.]

sum of $25,000, as a sum due and payable on February 1st, 1913, for the year 1912, under the provisions of the Act of 1907, which sum had theretofore been tendered to the treasurer and had been by him refused, for the reason, it is alleged, that he had been advised by the attorney general of the state that said act was unconstitutional and void. The application of the petitioner for a writ of mandamus was denied by the supreme court, and this decision was affirmed by the appellate division and by the court of appeals, which ordered the record in the case remitted to the supreme court, to be proceeded upon according to law.

Up to this time there is nothing in the record before us to indicate that any question was presented to the state courts, excepting the single one as to whether or not the Act of 1907 was valid under the Constitution of the state of New York.

More than a month later, on the 14th day of July, 1914, the court of appeals, on motion of the plaintiff, requested the supreme court to return the remittitur to the court of appeals, which court then amended the same by incorporating therein the statement that "upon the argument of the appeal in this cause before the court of appeals" there was submitted a brief, con

"Point III." alone counsel for the plaintiff for the first time, and then only by way of argument, attempt to present a Federal question by claiming that if the repealing act is to be regarded as an attempted condemnation of the special franchises claimed by the plaintiff, it "would be unconstitutional in that such franchises were not taken by the state for public use," in violation of the 14th Amendment to the Constitution of the United States.

The act further provides that, after the Congress of the United States shall authorize the construction of the proposed dams, locks, and canals, and after the payment of certain sums of money into the state treas-taining five specified points. Of these in ury, then the Commissioners of the Land Office shall, upon application of said corpo ration, "grant unto it the title and interest of the people of the state in and to lands under the waters of the Saint Lawrence river to be covered or occupied by said works and locks and power houses." [Section 4.] The payments to be made, after the year 1911, shall be not less than $25,000 for each year. The petition alleges that the river at Long Sault rapids is now practically unnavigable, being navigated only by light draft passenger vessels down stream during the summer tourist season, and that all other traffic up and down the river passes around the rapids by way of the Cornwall canal, on the Canadian side of the river. The plaintiff was duly organized as a corporation, and expended a large sum of money in preparing to utilize the grants of the act.

By an act which became a law on the 8th day of May, 1913, the legislature of the state in terms repealed this Act of 1907, under which the plaintiff in error is claiming.

Almost three months before this repealing act was passed, this suit was commenced by the filing of a petition in the supreme court of New York, praying for a writ of mandamus, to be directed to the treasurer of that state, requiring him to receive as a

It is significant to note that the court of appeals, in its decision, rendered before the remittitur was thus amended, did not treat or regard the repealing act as "an attempted condemnation of the special franchises claimed by the plaintiff," nor did it afterwards so treat it.

Upon the record thus described the plaintiff in error comes into this court, claiming that the act of the legislature of the state of New York of 1907 is a valid, constitutional law, and that, it having been accepted and acted upon by the plaintiff, contract and other property rights resulted which, under the decision of the court of appeals, have been impaired or taken away by the repealing act of 1913, in violation of the Constitution of the United States and of the 14th Amendment thereto, and it therefore prays for a reversal of the judgment of

the supreme court, entered pursuant to the 614, 617; New Orleans v. Benjamin, 153 U. decision of the court of appeals.

The defendant in error meets this claim of the plaintiff by a denial of the jurisdiction of this court, for the claimed reason that the court of appeals reached the conclusion that the Act of 1907 was unconstitutional and void without reference to, and without giving any effect to, the subsequent repealing statute.

The grants of the Act of 1907 are such that, if it was a valid law, upon their being accepted, they constituted property or contract rights, of which the plaintiff could not be deprived, and which could not be impaired, by subsequent legislation, and, therefore, the denial by the defendant in error of the jurisdiction of this court renders it necessary for us to determine whether the court of appeals, in its decision, gave any effect to the repealing act. If it did not give effect to that act, either expressly or by implication, this court is without jurisdiction to review its decision, for the reason that the provisions of the Constitution of the United States for the protection of contract rights are directed only against the impairment of them by constitutions or laws adopted or passed subsequent to the date of the contract from which such rights spring, and do not reach decisions of courts construing constitutions or laws which were in effect when the contract was entered into, as has been held by a long line of decisions extending from Knox v. Exchange Bank, 12 Wall. 379, 20 L. ed. 414, to Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 56 L. ed. 924, 32 Sup. Ct. Rep. 577.

In deciding this question, this court is not limited to the mere consideration of the language of the opinion of the state court, but will consider the substance and effect of the decision, and will for itself determine what effect, if any, was given by it to the repealing act. Fisher v. New Orleans, 218 U. S. 438, 54 L. ed. 1099, 31 Sup. Ct. Rep. 57; Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 56 L. ed. 924, 32 Sup. Ct. Rep. 577, and Louisiana R. & Nav. Co. v. Behrman, 235 U. S. 164, 59 L. ed. 175, 35 Sup. Ct. Rep. 62. While this court will exercise independent judgment as to the scope of the decision of the state court, it will give to that decision that respectful and sympathetic attention which is always due to the highest court of a state (Fisher v. New Orleans, supra), with the presumption always in mind that the state courts will do what the Constitution and laws of the United States require. Neal v. Dela ware, 103 U. S. 370, 389, 26 L. ed. 567, 571; Chicago & A. R. Co. v. Wiggins Ferry Co. 108 U. S. 18, 27 L. ed. 636, 1 Sup. Ct. Rep. 37 S. C.-6.

S. 411, 38 L. ed. 764, 14 Sup. Ct. Rep. 905, and Defiance Water Co. v. Defiance, 191 U. S. 184, 48 L. ed. 140, 24 Sup. Ct. Rep. 63.

An examination of the opinion of the court of appeals shows that the court, in its consideration of the repealing act of 1913, not only did not give to it an effect which would impair any contract relation springing from the Act of 1907, but that, on the contrary, it concluded that the repeal "could not operate to confiscate any valid franchise or property right which the Long Sault Development Company had previously acquired under the act repealed," and that this conclusion made it necessary for the court to "consider and determine whether the legislature possessed the constitutional power to convey away the state control over the navigation of the St. Lawrence river to the extent attempted by the Act of 1907." [212 N. Y. 8, 105 N. E. 849, Ann. Cas. 1915D, 56.]

And then, addressing itself to the constitutional problem thus stated, the court proceeds, upon principle and authority, to decide: That, under the Constitution of the state of New York, the power of the legislature of that state to grant lands under navigable waters to private persons or corporations is limited to purposes which may be useful, convenient, or necessary to the public; that it has no power to so part with the title to such lands that the state may not in the future improve navigation over them, if the public interest shall so require; and that they are held by the state on such a trust for the public use that the legislature has no power to authorize the conveyance of them to a private corporation to maintain navigation thereover "in as good condition as . . . at present," thereby parting for all time with its power to improve such navigation.

The court finds its principal authority for these legal positions in the decision of this court in Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110, in which it was decided: That the title which a state holds to land under navigable waters is different in character from that which it holds in land intended for sale and occupation; in the former case it being held in trust for the people of the state, in order that they may enjoy the navigation of the waters and carry on commerce over them, free from obstruction or interference by private parties; that this trust devolving upon the state in the public interest is one which cannot be relinquished by a transfer of the property; that a state can no more abdicate its trust over such property, in

which the whole people are interested, so as to leave it under the control of private parties, than it can abdicate its police powers in the administration of government and the preservation of the peace, and that the trust under which such lands are held is governmental, so that they cannot be alienated, except to be used for the improvement of the public use in them.

This was a pioneer decision upon the subject at the time it was rendered by a divided court, but the principles upon which it proceeds have been frequently approved by this court. Morris v. United States, 174 U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep. 649; United States v. Mission Rock Co. 189 U. S. 391, 406, 47 L. ed. 865, 869, 23 Sup. Ct. Rep. 606; Kean v. Calumet Canal & Improv. Co. 190 U. S. 452, 481, 47 L. ed. 1134, 1145, 23 Sup. Ct. Rep. 651; and they have been very widely approved by many of the highest courts of the states of the Union. Rose's Notes on U. S. Reports, vol. 12, p. 270; Supp. 3, p. 291; Supp. 5, p. 369. Having arrived at these conclusions of law, the court of appeals proceeds to make application of them to the Act of 1907, and concludes that that act, in terms, virtually turns over to the corporation the entire control of the navigation of the Long Sault rapids (provided that the consent of Congress to the grant could be obtained), requiring only that the company shall pay certain stipulated sums of money, and that it shall preserve the navigation of the river "in as good condition as the same

thority, the court arrived at the conclusion that the Act of 1907 was unconstitutional and void; and therefore it results that this case does not present any question for decision under the Federal Constitution, and that, for want of jurisdiction, the writ of error must be dismissed.

Mr. Justice McKenna and Mr. Justice Pitney dissent upon the ground that chapter 355 of the Laws of 1907 of the state of New York, creating the Long Sault Development Company and conferring upon it certain rights and franchises, when accepted, as it was, by the company, constituted a contract between the state and the company; that the repealing act and accompanying legislation passed in 1913 (chaps. 452 and 453) had the effect of impairing the obligation of that contract, in contravention of § 10 of article 1 of the Federal Constitu tion; and that effect was given to the latter legislation by the decision under review.

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1. The process of oil concentration of ores, as described in and practised under the is at present," and says that, no matter Sulman-Picard-Ballot patent, No. 835,120, how much the interest of the public might which consists in the use of an amount demand the improvement of the river in the of oil which is "critical" and minute, as compared with the amount used in prior future, the state would be powerless to act, processes, "amounting to a fraction of 1 either directly or by constraint upon the per cent on the ore," and in so impregnating corporation; and for this reason it concludes with air the mass of ore and water used by that the act is, in substance, an abdication agitation as to cause to rise to the surface of the trust upon which the state holds of the mass or pulp a froth peculiarly cocontrol over the St. Lawrence river as navi-herent and persistent, composed of air bubgable water and that, therefore, it is unconstitutional and void. Whether this construction placed upon the act is the one which this court would place upon it if coming to an original interpretation of it, we need not inquire; for, under the authorities hereinbefore cited, the prohibition of the Constitution against the impairing of contracts by state legislation does not reach errors committed by state courts when passing upon the validity and effect of a contract under a constitution or laws existing when it is made.

This discussion of the decision by the court of appeals makes it very clear that that decision does not give any effect whatever to the repealing act of 1913, but that, wholly independent of that act, and proceeding upon sound principle and abundant au

bles with but a trace of oil in them, which carry in mechanical suspension a very high percentage of the metal and metalliferous particles of ore which were contained in the mass of crushed ore subjected to treatment, must be deemed to constitute a new and patentable discovery, prior processes requiring the use of so much oil that they were too expensive to be used on lean ores, to which they were intended to have their chief application, and the new process, because of its economy and simplicity, having largely replaced all the earlier processes.

[Ed. Note.-For other cases, see Patents, Cent. Dig. § 49; Dec. Dig. 42.]

PATENTS 93-WHO ENTITLED TO DIS-
COVERY-EMPLOYER AND EMPLOYEES.

2. Patentees were none the less discoverers of the process patented because an employee happened to make the analyses and observations which resulted imme diately in the discovery, where the patentees

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

planned the experiments in progress when the discovery was made, directed the investigations day by day, conducted them in large part personally, and interpreted the

results.

[Ed. Note.-For other cases, see Patents, Cent. Dig. 125; Dec. Dig. 93.] PATENTS CERTAINTY.

29-DESCRIPTION OF PROCESS

3. The Sulman-Picard-Ballot patent, No. 835,120, for an improved process for oil concentration of ores, is not invalid because

when different ores are treated preliminary
tests must be made to determine the amount
of oil and the extent of agitation necessary
in order to obtain the best results, the range
of treatment within the terms of the claims,
while leaving something to the skill of per-
sons applying the invention, being clearly
sufficiently definite to guide those skilled
in the art to its successful application.
[Ed. Note. For other cases, see Patents, Dec.
Dig. 29.]

PATENTS 170-INVENTION
PRIOR STATE OF ART.

PROCESS

issued on the 6th day of November, 1906, to Henry Livingstone Sulman, Hugh Fitzalis Kirkpatrick-Picard, and John Ballot. The usual injunction, accounting, and damThe district court ages are prayed for. sustained the patent as to claims numbered 1, 2, 3, 5, 6, 7, 9, 10, 11, and 12; found that the defendant had infringed each of these claims, and granted the prayer of the petition. The circuit court of appeals for the ninth circuit reversed the decree of the district court and remanded the case with instructions to dismiss the bill. The case is here on writ of certiorari to review that decision.

As stated in the specification, the claimed discovery of the patent in the suit relates "to improvements in the process for the concentration of ores, the object being to separate metalliferous matter from gangue by means of oils, fatty acids, or other substances which have a preferential affinity for such metalliferous matter over gangue."

4. The prior state of the art requires that the Sulman-Picard-Ballot patent, No. The answer denies all of the allegations 835,120, for an improved process for oil concentration of ores, be sustained only so far of the bill and avers that in twenty-five as it claims the results obtained by the designated United States and five British use of oil within the proportions described patents the process described in suit was therein as "critical proportions," "amount-"fully and clearly described and claimed;" ing to a fraction of 1 per cent on the ore." [Ed. Note. For other cases, see Patents, Cent. Dig. 245; Dec. Dig. 170.]

[No. 46.]

and it also avers that the claimed discovery was invented, known, and used by many persons long prior to the time when the application was made for the patent in suit. Notwithstanding this elaboration of

Argued October 27, 30, 31, and November 1, denial, counsel for the defendant in the 1916. Decided December 11, 1916.

Ο

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit to review a decree which reversed a decree of the District Court for the District of Montana in favor of complainants in a patent infringement suit, and remanded the case with instructions to dismiss the bill. Decree of the Circuit Court of Appeals reversed. Decree of District Court modified, and as modified affirmed. See same case below, 130 C. C. A. 576, 214 Fed. 100.

The facts are stated in the opinion. Messrs. Henry D. Williams, William Houston Kenyon, Lindley M. Garrison, Frederic D. McKenney, John H. Miller, and Odell W. McConnell for petitioners.

Messrs. Walter A. Scott, Thomas F. Sheridan, George L. Wilkinson, K. R. Babbitt, J. Bruce Kremer, and John F. Neary for respondent.

summarized conclusion to their brief rely upon only five of the many patents referred to as showing that the patent in suit was anticipated and is therefore invalid for want of novelty and invention, viz.: Everson (1886), Froment (Italy, 1902; Great Britain, 1903), Glogner (1903), Schwarz (applied for April 19, 1905, issued December 19, 1905), and Kirby (applied for October 17, 1903, issued December 18, 1906). And the defendant, a man obviously experienced in the subject, says that, in his opinion, the whole basis of flotation con

centration was disclosed in the Everson United States patent No. 348,157 and in the Froment British patent.

It is clear that in the prior art, as it is developed in this record, it was well known that oil and oily substances had a selective affinity or attraction for, and would unite mechanically with, the minute particles of metal and metallic compounds found in crushed or powdered ores, but would not so unite with the quartz, or rocky nonme

Mr. Justice Clarke delivered the opinion tallic material, called "gangue." Haynes of the court:

British patent (1860), and United States In this suit the complainants, the first patents, Everson (1885), Robson (1897), named as the owner and the other as gen- and Elmore (1901). It was also well eral licensee, claim an infringement of known that this selective property of oils United States letters patent No. 835,120, and oily substances was increased when ap

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

plied to some ores by the addition of a small amount of acid to the ore and water used in process of concentration. United States patents, Everson (1885), Elmore (1901), and Cattermole (1904).

peculiarly coherent and persistent in character, which is composed of air bubbles with only a trace of oil in them, which carry in mechanical suspension a very high percentage of the metal and metalliferous particles of ore which were contained in the mass of crushed ore subjected to treatment. This froth can be removed and the metal recovered by processes with which the patent is not concerned.

Prior to the date of the patent in suit a number of patents had been granted in this and other countries for processes aiming to make practical use of this property of oil and of oil mixed with acid in the treatment of ores, all of which, speaking broadly, consisted in mixing finely crushed or powdered ore with water and oil, some times with acid added, and then in variously treating the mass-"the pulp"-thus formed so as to separate the oil, when it became impregnated or loaded with the metal and metal-bearing particles, from the valueless gangue. From the resulting concentrate the metals were recovered in vari-discovery. ous ways.

The processes, of this general character, described in the prior patents, may be roughly divided into two classes. The process in the patents of the first class is called in the record the "surface flotation process," and it depends for its usefulness on the oil used being sufficient to collect and hold in mechanical suspension the small particles of metal and metalliferous compounds, and by its buoyancy to carry them to the surface of the mixture of ore, water, and oil, thus making it possible, by methods familiar to persons skilled in the art, to float off the concentrate thus obtained into any desired receptacle. The waste material, or gangue, not being affected by the oil, and being heavier than water, sinks to the bottom of the containing vessel and may be disposed of as desired.

The process of the other class, called in the record the "metal sinking process," reverses the action of the surface flotation process and is illustrated by the Cattermole U. S. patent, No. 777,273, in which oil is used to the extent of 4 per cent to 6 per cent to 10 per cent of the weight of the metalliferous mineral matter, depending on the character of the ore, for the purpose of agglomerating the oil-coated concentrate into granules heavier than water, so that they will sink to the bottom of the containing vessel, permitting the gangue to be carried away by an upward flowing stream of water. The process of the patent in suit, as described and practised, consists in the use of an amount of oil which is "critical," and minute as compared with the amount used in prior processes, "amounting to a fraction of 1 per cent on the ore," and in so impregnating with air the mass of ore and water used, by agitation-"by beating the air into the mass"-as to cause to rise to the surface of the mass, or pulp, a froth,

It is obvious that the process of the patent in suit, as we have described it, is not of the metal sinking class, and while it may, in terms, be described as a surface flotation process, yet it differs so essentially from all prior processes in its character, in its simplicity of operation, and in the resulting concentrate, that we are persuaded that it constitutes a new and patentable

The prior processes which we have described required the use of so much oil that they were too expensive to be used on lean ores, to which they were intended to have their chief application, and the efforts of investigators for several years prior to the discovery of the process in suit had been directed to the search for a means or method of reducing the amount of oil used; and it is clear from the record that approach was being made, slowly, but more and more nearly, to the result which was reached by the patentees of the process in suit in March, 1905. The Froment Great Britain patent (1903) and the Kirby United States patent (applied for in 1903 and granted in 1906) are especially suggestive of the advance which was being made toward the desired result, but the Froment process was little more than a laboratory experiment, and has never proved of value in practice, and the Kirby process, though approaching in some respects more nearly to the end attained by the process of the patent in suit, found its preferred application in the use of an amount of oil solution equal to one fourth to three fourths in weight of the ore treated, which was prohibitive in cost.

Into this field of investigation at this stage of its development came the patentees of the patent in suit. They were experienced metallurgists of London, of inventive genius and with financial resources, and they entered upon an investigation of the processes of oil concentration of ores which was continued through several years, and consisted of a very extended series of experiments in which the quantities of oil, of water, and of acid used and the extent and character of the agitation of the mass under treatment resorted to, were varied to an almost unparalleled extent as to each factor, and the results were carefully tabu

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