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Opinion of the Court.

which should be preferred, and how far either should be made subservient to the other.

These cases illustrate the general doctrine, now fully recognized, that the commercial power of Congress is exclusive of State authority only when the subjects upon which it is exerted are national in their character and admit and require uniformity of regulations affecting alike all the States; and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the States may pro vide for their regulation and management, until Congress intervenes and supersedes their action.

The complainant, however, contends that Congress has intervened and expressed its will on this subject by a clause in the act of September 9, 1850, 9 Stat. 452, admitting California as a State into the Union, which declares that all the navigable waters within the said State shall be common highways and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor." 9 Stat. 453. This declaration is similar to that contained in the ordinance of 1787. for the government of the territory of the United States northwest of the Ohio River, so far as the latter relates to the navigable waters flowing into the Mississippi and the St. Lawrence. And in Escanaba Co. v. Chicago we beld, with respect to the State of Illinois, that the clause was superseded by her admission into the Union, for she then became entitled to, and possessed of all the rights of domain and sovereignty which belonged to the original States. The language of the resolution admitting her declared, that it was on “an equal footing with the original States in all re spects whatever ; " so that, after her admission, she possessed the same power over rivers within her limits that Delaware exercised over Blackbird Creek and Pennsylvania over Schuylkill River.

The act enabling the people of Wisconsin Territory to form a Constitution and State government, and for admission into the Union, contains a similar clause. And yet, in Pound v. Turck, which was before this court at October Term, 1877, it was held, that a statute of that State which authorized the

Opinion of the Court.

erection of a dam across a navigable river within her limits, was not unconstitutional, in the absence of other legislation by Congress bearing on the case. The court does not seem to have considered the question as affected by the clause in the enabling act. That clause is not, it is true, commented on in the opinion, but the section containing it is referred to, and the declaration, that navigable streams within the State are to be common highways, must have been in the mind of the court. It beld, however, that the case was governed by the decisions in the Delaware and Pennsylvania cases, observing that there were in the State of Wisconsin, and other States, many small streams navigable for short distances from their mouths in one of the great rivers of the country, by steamboats, but whose greatest value, in water carriage, was as outlets to saw-logs and lumber, coal and salt, and that, in order to develop their greatest utility in that regard, it was often essential that dams, booms and piers should be used, which are substantial obstructions to general navigation, and more or less so to rafts and barges; but that to the legislature of the State the authority is most properly confided to authorize these structures where their use will do more good than harm, and to impose such regulations and limitatiors in their construction and use as will best reconcile and accommodate the interests of all concerned. And the court added that the exercise of this limited power may all the more safely be confided to the local legislatures as the right of Congress is recognized to interfere and control the matter whenever deemed necessary.

The clause, therefore, in the act admitting California, quoted above, upon which the complainant relies, must be considered, according to these decisions, as in no way impairing the power which the State could exercise over the subject if the clause had no existence. But independently of this consideration, we do not think the clause itself requires the construction which the court below placed upon it, and which counsel urges so earnestly for our consideration. That court held that the clause contains two provisions, one that the navigable waters shall be a common highway to the inhabitants of the State as well as to citizens of the United States; and the other, that

Opinion of the Court.

they shall be forever free from any tax, impost, or duty therefor; that these provisions are separate and distinct, and that one is not an adjunct or amplification of the other. Possibly some support is given to that view by language used in the opinion in Escanaba Co. v. Chicago. In that case all the bridges over the Chicago River had draws for the passage of vessels, and we there held that a bridge constructed with a draw could not be regarded within the ordinance of 1787 as an obstruction to the navigation of the stream. We were not required to express any further opinion as to the meaning of the ordinance. But upon the mature and careful consideration, which we have given in this case to the language of the clause in the act admitting California, we are of opinion that, if we treat the clause as divisible into two provisions, they must be construed together as having but one object, namely, to insure a highway equally open to all without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplated no other restriction upon the power of the State in authorizing the construction of bridges over them whenever such construction would promote the convenience of the public. The act admitting California declares that she is “admitted into the Union on an equal footing with the original States in all respects whatever.She was not, therefore, shorn by the clause as to navigable waters within her limits of any of the powers which the original States possessed over such waters within their limits.

Decree affirmed.

Opinion of the Court.




Argued January 15, 1885.-Decided January 26, 1885.

The doctrine that the use of one of the elements of a combination does not

infringe a patent for a combination reasserted. Patent No. 89,646 granted May 4, 1863, to C. J. Fisher, for an improved neck.

pad for horses was not infringed by the device used by the appellant for the same purpose.

This was a suit in equity brought by Charles J. Fisher, the appellee, against Willibald Voss, the appellant, to restrain the infringement by the latter of letters patent granted to Fisher, dated May 4, 1869, “ for an improved neck-pad for horses."

The answer denied infringement and denied that Fisher was the first inventor of the patented improvement.

Upon final hearing on the pleadings and evidence the Circuit Court rendered a decree in favor of the complainant, and the defendant appealed.

Mr. E. A. West and Mr. L. L. Bond for appellant.

Mr. Edward Taggart for appellee.

MR. JUSTICE Woods delivered the opinion of the court. He recited the facts, as above stated, and continued :

Neck-pads for horses, to which the letters-patent relate, were made of various kinds and used long before application for the patent was filed. They were attached to the horse-collar at its upper end immediately below the point where the two arms of the collar are buckled together. They rested on the neck of the horse, and their object was to prevent the galling of the horse's neck by the upper part of the collar. The improvement in neck-pads covered by the letters patent of the appellee was described as follows in the specification :

Opinion of the Court.


“This invention relates to a new device for protecting the necks of horses between the upper ends of the collar to prevent galling. For this purpose pieces of leather, cloth, or otþer material have heretofore been used, but without the desired

Pads could not be made, as their inner faces could not be kept clear from wrinkles or protuberances, which are more injurious than the omission of a protecting device.

"“ My invention consists in producing a pad which may be attached to the collar, and which is perfectly smooth on the under side, the leather used on the under side being crimped in order to obtain the desired shape.

[The pad] is so shaped that it fits a horse's neck between the arms of the collar, it being thick on top and tapering toward the ends. The under side of the pad is formed by a sheet of leather,

which is crimped in order to have its ends turned up without producing wrinkles; the stuffing in the pad is of hay, or any other suitable material. On the outer side of the pad, near the ends of the same, are straps

which are fitted around the collar : to prevent longitudinal displace ment of the pad.” The claim was as follows: "The neck-pad having an inner lining of crimped leather, and provided with straps

to allow its being fastened to the collar as herein shown and described for the purpose specified.”

The thing made and sold by the appellant, which was charged to be an infringement of the appellee's patent, was a single piece of crimped leather having a piece of sheet metal so shaped as to fit it riveted to its upper side, in order to stiffen it and preserve its crimped form, and provided with straps to fasten it to the collar.

The specification of appellant's patent describes a stuffed pad. The drawing by which it is illustrated shows a stuffed paủ, and the certified model of the invention from the Patent Office, exhibited at the hearing, is a stuffed pad.

It is clear, that if the patent is to be construed as a combination consisting of a stuffed pad, having an inner lining of crimped leather and straps to fasten the pad to the collar, the appellant does not infringe, for he does not use one of the elements of the combination, namely, the stuffed pad, nor its equiv


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