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with regard to this froth is that, although the very light and easily destructible air bubbles are covered with a heavy mineral, yet the froth is stable and utterly different from any froth known before, being so permanent in character that I have personally seen it stand for twenty-four hours with

simplicity of the operation, as compared with the prior attempts, is startling. All that has to be done is to add a minute quantity of oil to the pulp, to which acid may or may not be added, agitate for from two and one half to ten minutes, and then, after a few seconds, collect from the surface the froth, which will contain a large percentage of the minerals present in the ore."

lated and interpreted. It was while pursuing a comprehensive investigation of this character, having, as the evidence shows, the special purpose in mind at the time to trace the effect on the results of the process of a reduction to the vanishing point of the quantity of oil used, that the discovery embodied in the patent in suit was made.out any change having taken place. The The experimenters were working on the Cattermole "metal sinking process" as a basis when it was discovered that the granulation on which the process depended practically ceased when the oleic acid (oil) was reduced to about of 1 per cent "on the ore." It was observed, however, that, as the amount of oleic acid was further reduced and the granulation diminished, there was an increase in the amount of "float froth," which collected on the surface of the mass, and that the production of this froth reached its maximum when about fo of 1 per cent or slightly less "on the ore" of oleic acid was used. This froth, on collection, was found to consist of air bubbles modified by the presence of the minute amount of oil used, and holding in mechanical suspension between 70 per cent and 80 per cent of the total mineral content of the mass treated. It was promptly recognized by the patentees that this froth was not due to the liber-is to be found, chiefly, in the buoyancy of ation of gas in the mass treated by the action of the dilute acid used, and its formation was at once attributed in large part to the presence of the air introduced into the mixture by the agitation which had been resorted to to mix the oil with the particles of crushed ore, which air, in bubbles, attached itself to the mineral particles, slightly coated as they were with what was necessarily an infinitesimal amount of oil, and floated them to the surface. The extent of the agitation of the mass had been increased as the experiments proceeded until the "series of Gabbett mixers, fitted with the usual baffles, were speeded at from 1,000 to 1,100 revolutions per minute."

A careful consideration of the record in this case convinces us that the facts with respect to the process of the patent in suit are not overstated by the plaintiffs' witness, Adolph Liebmann, an expert of learning and experience, when he says in sub

stance:

"The present invention differs essentially from all previous results. It is true that oil is one of the substances used, but it is used in quantities much smaller than was ever heard of, and it produces a result never obtained before. The minerals are obtained in a froth of a peculiar character, consist ing of air bubbles which, in their covering film, have the minerals embedded in such manner that they form a complete surface all over the bubbles. A remarkable fact

|

It is not necessary for us to go into a detailed examination of the process in suit to distinguish it from the processes of the patents relied on as anticipations, convinced as we are that the small amount of oil used makes it clear that the lifting force which separates the metallic particles of the pulp from the other substances of it is not to be found principally in the buoyancy of the oil used, as was the case in prior processes, but that this force

the air bubbles introduced into the mixture by an agitation greater than and different from that which had been resorted to before, and that this advance on the prior art and the resulting froth concentrate so different from the product of other processes make of it a patentable discovery as new and original as it has proved useful and economical. It results without more discussion, that we fully agree with the decision of the House of Lords, arrived at upon a different record and with different witnesses, but when dealing with the equiv alent of the patent in suit, in Minerals Separations v. British Ore Concentration Syndicate, 27 R. P. C. 33. In this decision Lord Shaw, speaking for the court and distinguishing the process there in suit especially from the Elmore oil flotation process, which had gone before, but which was

typical of the then prior art, said: "They

(the patentees of the agitation froth process of the patent in suit) are not promot. ing a method of separation which had be fore been described, but they are engaged upon a new method of separation. Instead of relying upon the lesser specific gravity of oil in bulk, they rely upon the production of a froth by means of an agitation which not only assists the process of the minute quantities of oil reaching the minute particles of metal, but forms a multitude of air cells, the buoyancy of which air cells, form

tent of agitation necessary in order to obtain the best results. Such variation of treatment must be within the scope of the claims, and the certainty which the law requires in patents is not greater than is reasonable, having regard to their subject matter. The composition of ores varies infinitely, each one presenting its special problem, and it is obviously impossible to specify in a patent the precise treatment which would be most successful and economical in each case. The process is one for dealing with a large class of substances and the range of treatment within the terms of the claims, while leaving something to the skill of persons applying the invention, is clearly sufficiently definite to guide those

tion, as the evidence abundantly shows. This satisfies the law. Mowry v. Whitney, 14 Wall. 620, 20 L. ed. 860; Ives v. Hamilton, 92 U. S. 426, 23 L. ed. 494; and Car

ing around single particles of the metal, floats them to the surface of the liquid." And Lord Atkinson said: "In their process this mysterious affinity of oil for the metallic particles of the ore is availed of, yet the oil is used in such relatively infinitesimal quantities that the metallic particles are only coated with a thin film of it, and the lifting force is found not in the natural buoyancy of the mass of added oil, but in the buoyancy of air bubbles, which, introduced into the mixture by the more or less violent agitation of it, envelop or become attached to, the thinly oiled metallic particles, and raise them to the surface, where they are maintained by what is styled the surface tension of the water." The record shows not only that the proc-skilled in the art to its successful applicaess in suit was promptly considered by the patentees as an original and important discovery, but that it was immediately generally accepted as so great an advance over any process known before that, without puff-negie Steel Co. v. Cambria Iron Co. 185 U. ing or other business exploitation, it promptly came into extensive use for the concentration of ores in most, if not all, of the principal mining countries of the world, notably in the United States, Australia, Sweden, Chile, and Cuba, and that, because of its economy and simplicity, it has large ly replaced all earlier processes. This, of itself, is persuasive evidence of that invention which it is the purpose of the patent laws to reward and protect. Diamond Rub-entees came into it, and it was while enber Co. v. Consolidated Rubber Tire Co. 220 U. S. 428, 55 L. ed. 527, 31 Sup. Ct. Rep. 444; Carnegie Steel Co. v. Cambria Iron Co. 185 U. S. 403, 429, 430, 46 L. ed. 968, 983, 22 Sup. Ct. Rep. 698; Barbed Wire Patent (Washburn & M. Mfg. Co. v. Beat Em All Barbed Wire Co.) 143 U. S. 275, 36 L. ed. 154, 12 Sup. Ct. Rep. 443, 450; Smith v. Goodyear Dental Vulcanite Co. 93 U. S. 486, 23 L. ed. 952.

The claim that the patentees of the patent in suit are not the original discoverers of the process patented because an employee of theirs happened to make the analyses and observations which resulted immediately in the discovery cannot be allowed. The record shows very clearly that the patentees planned the experiments in progress when the discovery was made; that they directed the investigations day by day, conducting them in large part personally, and that they interpreted the results. Agawam Woolen Co. v. Jordan, 7 Wall, 583-603, 19 L. ed. 177-182, rules this claim against the defendant.

Equally untenable is the claim that the patent is invalid for the reason that the evidence shows that when different ores are treated preliminary tests must be made to determine the amount of oil and the ex

S. 403, 436, 437, 46 L. ed. 968, 985, 986, 22 Sup. Ct. Rep. 698.

The evidence of infringement is clear. While we thus find in favor of the validity of the patent, we cannot agree with the district court in regarding it valid as to . all of the claims in suit. As we have pointed out in this opinion, there were many investigators at work in this field to which the process in suit relates when the pat

gaged in study of prior kindred processes that their discovery was made. While the evidence in the case makes it clear that they discovered the final step which converted experiment into solution, "turned failure into success" (Barbed Wire Patent [Washburn & M. Mfg. Co. v. Beat Em All Barbed Wire Co.] 143 U. S. 275, 36 L. ed. 154, 12 Sup. Ct. Rep. 443, 450), yet the investigations preceding were so informing that this final step was not a long one, and the patent must be confined to the results obtained by the use of oil within the proportions often described in the testimony and in the claims of the patent as "critical proportions," "amounting to a fraction of 1 per cent on the ore," and therefore the decree of this court will be that the patent is valid as to claims No. 1, 2, 3, 5, 6, 7, and 12, and that the defendant infringed these claims, but that it is invalid as to claims 9, 10, and 11. Claims No. 4, 8, and 13 were not considered in the decrees of the two lower courts and are not in issue in this proceeding.

The decision of the Circuit Court of Appeals will be reversed, and the decision of the District Court, modified to conform to the conclusions expressed in this opinion, will be affirmed.

(242 U. S. 238)

DETROIT UNITED RAILWAY, Plff. in | paired by the effect given to the Detroit annexation acts (Mich. Acts of June 16, 1905, June 19, 1907, and October 24, 1907)

Err.,

V.

PEOPLE OF THE STATE OF MICHIGAN. by a decision of the highest state court re

(No. 1.)

quiring reduced fares to be put in force in such annexed territory on these suburban lines on the theory that the terms of said

DETROIT UNITED RAILWAY, Plff. in village and township grants had been modi

Err.,

V.

CITY OF DETROIT. (No. 4.)

Courts 394(9)-ERROR TO STATE COURT
-FEDERAL QUESTION - IMPAIRING CON-
TRACT OBLIGATIONS-DECISION ON NON-
FEDERAL GROUND,

fied by the assent of the predecessors of the Detroit United Railway to city ordinances for the extension of their respective lines in certain other previously annexed territory, which contain stipulations for single

fares and reduced rates over the "entire route" or "any of its lines in said city," and by the subsequent acquisition of these lines by the Detroit United Railway, followed by its acquisition of the suburban lines in question.

[Ed. Note. For other cases, see Constitutional

Law, Cent. Dig. §§ 380-387; Dec. Dig. 135.] [Nos. 1 and 4.]

I

ber 11, 1916.

1. A decision of the highest court of the state that reduced street railway fares must be given in the territory annexed to Detroit by Mich. Acts of June 16, 1905 (Loc. Acts 1905, No. 655) June 19, 1907 (Loc. Acts 1907, No. 665) and October 24, 1907 (Acts [Ex. Sess.] No. 1) on lines operated there under village and township franchises which had theretofore been acquired by the Detroit Argued October 20, 1916. Decided DecemUnited Railway, under the authority of Mich. Comp. Laws 1897, § 6448, necessarily gives effect to the annexation acts so as to sustain a writ of error from the Federal Supreme Court, where the Detroit United Railway contends that it had a right, under such village and township franchises, protected by the contract clause of the Federal Constitution, to charge a higher fare, although the state court rests its decision upon the theory that the terms of such franchises had been modi-| fied by the assent of the predecessors of the Detroit United Railway to city ordinances for the extension of their lines in certain other previously annexed territory, which contain stipulations for a single fare and reduced rates over "the entire route," or over "any of its lines in said city," and by the subsequent acquisition of these lines by the Detroit United Railway, followed by its acquisition of the suburban lines in question.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 1055; Dec. Dig. 391(9).]

N ERROR to the Supreme Court of the State of Michigan to review a judgment which affirmed a conviction of a street railway company in the Recorder's Court for the City of Detroit of having failed to accept workmen's tickets on its lines within certain annexed territory. Reversed and remanded for further proceedings. Also State of Michigan to review a judgment IN ERROR to the Supreme Court of the which affirmed a judgment of the Circuit Court of Wayne County, in that state, awarding a mandamus to compel a street railway company to observe the provisions of the Detroit ordinances respecting fares upon its lines in certain annexed territory. Reversed and remanded for further proceedings.

Sce same case below in No. 1, 162 Mich. COURTS 399(1)-ERROR TO STATE COURT 460, 139 Am. St. Rep. 582, 125 N. W. 700,

-SCOPE OF REVIEW

TRACT OBLIGATIONS.

IMPAIRING CON

127 N. W. 748; in No. 4, 173 Mich. 314, 139 N. W. 56.

Henry L. Lyster for plaintiff in error.

2. When the Federal Supreme Court is called upon, in the exercise of its appellate The facts are stated in the opinion. jurisdiction over state courts, to decide Messrs. Elihu Root, John C. Donnelly, whether state legislation impairs the obliga-William L. Carpenter, Fred A. Baker, and tion of a contract, it is required to deter mine upon its independent judgment (1) Was there a contract? (2) If so, what obligation arose from it? (3) Has that obligation been impaired by subsequent legislation?

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 1089; Dec. Dig. 399(1).] CONSTITUTIONAL LAW 135-IMPAIRING CONTRACT OBLIGATIONS STREET RAIL

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WAY FARE IN ANNEXED TERRITORY.

3. Contract obligations of the Detroit United Railway, which, under the authority of Mich. Comp. Laws 1897, § 6448, had ac

Messrs. P. J. M. Hally and Harry J. Dingeman for defendants in error.

Mr. Justice Pitney delivered the opinion of the court:

These two cases involve identical questions, were argued together, and may be disposed of in a single opinion. They concern the rates of fare that may be charged by plaintiff in error upon certain street quired, with all their "rights, privileges, railway lines within the present limits of and franchises," certain suburban lines the city of Detroit, and in both cases it is operating under village and township grants insisted that the state court of last resort contractual in their nature, fixing the fares has given such an effect to statutes enacted to be charged, were unconstitutionally im- in the years 1905 and 1907 for extending For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the corporate limits as to impair the obli-, for a single fare upon tickets sold at the gation of the contracts contained in fran- rate of eight for 25 cents, with specified chises theretofore granted by the governing transfer rights. authorities of the annexed territory to the In 1891 the city limits were further expredecessors in title of plaintiff in error. tended along Jefferson avenue to Hurlburt Plaintiff in error was incorporated Decem- | avenue, which was the easterly line of the ber 28, 1900, under the Street Railway township of Hamtramck. The railroad on Act of 1867 and amendments thereto (1 Jefferson avenue in the territory covered by Mich. Laws 1867, p. 46; Comp. Laws 1897 this extension was constructed under franchap. 168), for the purpose, as its corpo- chises granted by the authorities of that rate name indicates, of acquiring, maintain- township, respecting which no question is ing, and operating various lines theretofore now raised. constructed by other companies. Section 15 of the Act (Comp. Laws, § 6448) provides that any street railway company may purchase and acquire any street railway in any city, village, or township owned by another corporation, together with the rights, privileges, and franchises thereof, "and may use and enjoy the rights, privileges, and franchises of such company, the same, and upon the same terms as the company whose road and franchises were so acquired might have done." Under this authority it shortly thereafter acquired and united under one organization certain lines previously constructed and operated independently throughout the city and its suburbs under different and distinct franchises, of which the following is a summary:

From Hurlburt avenue eastwardly to the Country Club in the township of Grosse Point-a distance of about 4 miles-the railroad on Jefferson avenue was constructed under several grants made by the township and village of Grosse Point and the village of Fairview, in the years 1891, 1893, and 1895, and further powers were conferred upon plaintiff in error, after its acquisition of these lines, by ordinance of the village of Fairview, passed May 16, 1905. These several village and township grants were for terms that have not yet expired, and contain provisions for 5-cent fares within the territory covered by them.

The Jefferson avenue lines are operated together as a single system in connection with lines leading from the city northwestIn November, 1862, the city, by ordinance, wardly on Grand River avenue to and begranted to the incorporators of the Detroit yond the city limits, constructed under City Railway the right to construct rail-rights derived by predecessors in title of ways in certain streets, including Jefferson plaintiff in error, as follows: avenue, which extends from the center of the city in a northeasterly direction to and beyond the city limits. All the lines authorized were to commence at Campus Martius, and run thence on their several courses to the city limits, and the route along Jefferson avenue to the eastern limits was to be completed within six months after March 31, 1863. In 1873 a section was added authorizing the construction of a second track along Jefferson avenue. In 1862 the city limits on Jefferson avenue were at Mt. Elliott avenue. In 1885 they were extended to a point 200 feet east of Baldwin avenue, and while they remained as thus fixed, and in the year 1889, a supplemental ordinance was passed granting to the Detroit City Railway, among other things, the right to extend its double track along Jefferson avenue from its then present easterly terminus to the easterly city limits, and fixing a time within which the same should be constructed. There was a provision that the additional lines should be operated in connection with and as parts of the then present system of the Detroit City Railway, and that the company should agree, among other things, to make arrangements for carrying passengers between the hours of 5:30 and 7:00 a. M., and between 5:15 and 6:15 P. M., over any of its lines in the city

By ordinance of May 1, 1868, the city granted to the incorporators of the Grand River Street Railway Company the right to construct lines on certain streets, including Grand River avenue to its intersection with the Michigan Central Railway at or near the then present city limits, with the right to build a second track within five years after the completion of the first. By § 8 this line was to be completed to a specified point contemporaneously with the paving of the street, and thence to the western city limits whenever public necessity, as determined by the common council, should require. By Acts of 1875 and 1885 the limits were extended from the railroad intersection to a point just beyond the Boulevard. By ordinance of August 3, 1888, there was granted the right to construct single tracks on Grand River avenue from its then present terminus to the westerly city limits, and by ordinance of January 3, 1889, the city granted the right, among others, to construct a double track railway on Grand River avenue from Woodward avenue to the city limits, and under this authority tracks were built to the lim its just beyond the Boulevard. The latter ordinance required the company to stipulate that it would sell tickets, eight for 25 cents, good over the entire route of the company,

when offered during the morning and after- | 162 Mich. 460, 139 Am. St. Rep. 582, 125 noon hours specified in the ordinance passed N. W. 700, 127 N. W. 748.

on the same date respecting the Detroit City lines and already referred to.

In No. 4, the court sustained a judgment awarding a mandamus requiring plaintiff in error to observe the provisions of the ordinances of 1889 upon the entire Jefferson

as included within the city limits as extended in 1907. 173 Mich. 314, 139 N. W. 56.

In 1897 the township of Greenfield granted to the incorporators of the Grand River Electric Railway (a different corporation | avenue,-Grand River avenue route, so far from that last mentioned) a franchise for tracks along the Grand River road from the westerly line of the township to the then present city limits of Detroit, with a right to charge not exceeding 5 cents as the fare for any distance in Greenfield, or six tickets for 25 cents, with school tickets at ten for 30 cents. Under this franchise a railroad was built along the Grand River road from the then city limits near the Boulevard throughout the township of Greenfield. As already indicated, all of these lines of railway, with the appurtenant rights, privileges, and franchises, were acquired by plaintiff in error shortly after its incorporation, under the authority of § 15 of the Act of 1867.

In each case plaintiff in error seasonably and expressly insisted that the several township and village grants above referred to were subsisting and valid contracts at and before the legislature of Michigan passed the acts extending the city limits, and that those acts, if so construed or applied as to affect or modify the contracts, were in conflict with § 10 of article 1 of the Constitution of the United States. And it is upon the overruling of these contentions that the cases are brought here, under § 237, Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214].

uted to the ordinances of January 3, 1889, without reference to any subsequent legislation.

Afterwards, by an act of the legislature Defendants in error challenge our jurisapproved October 24, 1907 (Mich. Laws, diction, upon the ground that the judgEx. Sess. 1907, p. 55), a part of the former ments of the state court of last resort were village of Fairview, including Jefferson ave-based solely upon the meaning that it attribnue for a distance of about 12,500 feet northeastwardly from Hurlburt avenue, was annexed to the city of Detroit. And by Acts of June 16, 1905, and June 19, 1907 (Mich. Local Acts 1905, p. 1144; Local Acts 1907, p. 940), the city limits were extended northwestwardly along Grand River avenue for a distance of about one-half mile in territory previously part of Greenfield township. Each of these acts provided | that the annexed territory should be subject to all the laws of the state applicable to the city, and to all the ordinances and regulations of the city, with exceptions not now material.

It is the contention of defendants in error that the provisions respecting fares in the two ordinances of January 3, 1889, assented to by the predecessors of plaintiff in error in the ownership of the city lines on Jefferson and Grand River avenues, were intended to be applicable throughout the city as it might from time to time be enlarged, and that plaintiff in error is bound by the limitations of those ordinances as to all its lines within the city, not only as its limits existed in 1889, but also including the territory annexed in 1905 and 1907. In case No. 1, the supreme court of the state sustained the imposition of a fine for failure to accept workingmen's tickets, so called, within the hours prescribed by the ordinance of 1889 upon the Jefferson avenue line within the territory formerly part of the village of Fairview, but annexed to the city by the Act of October 24, 1907.

It is true, as this court has many times decided, that the "contract clause" of the Constitution is not addressed to such impairment of contract obligations, if any, as may arise by mere judicial decisions in the state courts without action by the legis lative authority of the state. Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 639, 56 L. ed. 924, 928, 32 Sup. Ct. Rep. 577; Frank v. Mangum, 237 U. S. 309, 344, 59 L. ed. 969, 987, 35 Sup. Ct. Rep. 582.

But in this case there were state laws passed subsequent to the making of the alleged contracts in question, in the form of the legislation of 1905 and 1907 extending the corporate limits of the city. And it is not correct to say that the decisions of the state court turned upon the mere meaning of the contracts without reference to these subsequent laws. Assuming what in effect is conceded, that the village and township franchises constituted contracts within the protection of the Federal Constitution, the force of the decisions was to abrogate the rights acquired by plaintiff in error through its acquisition of the suburban lines, not merely because of the assent of the owners of the city lines to the ordinances of January 3, 1889, but because of the combined effect of those ordinances and the acts of the legislature of Michigan that thereafter extended the city limits. It is

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