Vol. IV.] GRAND RAPIDS, ETC. R. R. v. GRAND RAPIDS AND IND. R. R. [No. 4. peal of the law under which the corporation was organized would not vest the title to its property in the public. In so far as the corporation is a common carrier, the legislature has undoubted power to control and regulate it; but in so far as its property is concerned, -property taken by it for use in the building and operating its road, so long at least as such property is used by the corporation for such purposes, it is as sacredly guarded and protected under our Constitution, and is as much beyond the reach or power of the legislature, as is the property of an individual. Whatever the right or title of the corporation may be in such lands,— whether a mere easement or something greater, whether it may by some be considered public property and by others private, call it by what name we will, practically, in order for the company to fully enjoy its rights therein, the case must not only be permanent in its nature, at least so long as the road is operated, but it must be exclusive. From the very nature of the construction and operation of railroads, the public cannot use their road in the usual or ordinary manner of using a common public highway. Neither the state nor any of its departments or municipalities have or claim any interest in the property or franchises of the company, they neither pay nor contribute towards the purchase of the right of way or to keeping it in proper repair afterwards; all this is done by the company itself, and through its efforts, and the right thus acquired and paid for by the company is as much its property, and of value to it, as would be a like right or interest if owned by an individual. In justice, therefore, the corporation should have as clear a right to compensation for an injury, sustained in consequence of an appropriation or use of its property by another without its consent, as an individual would.

The theory that land taken under the power of eminent domain is taken for the public use, has really caused much mischief. The term "public use,' or "public purpose," is misleading. An object may be public for one purpose, while for others it would not be. Corporations have frequently, in order to accomplish their purposes, sought to give this term its broadest meaning, and then, using it as a foundation to erect structures thereon wholly at variance with all well-known legal principles. In this they have derived encouragement and support from the courts, in holding that property thus taken and held by a private corporation is taken for a public purpose in order to find some ground upon which to authorize its being taken in invitum.

Now while railroads in one sense are for the use and accommodation of the public, and to this extent may be considered as used for public purposes, the mistake in this case consists in assuming that the property by them acquired, having been taken for a public purpose, may be used and appropriated by any other corporation for a similar public purpose, without making compensation therefor, that property public for one purpose shall be public for all. But is this true? In the case of a common public highway every one has an equal right of passage over it; but if it is sought to appropriate it to some essentially different public use, as a railroad, it is now generally conceded that the owner of the soil would be entitled to additional compensation. A turnpike is also a public highway which the public have a right to use upon paying toll; if it is appropriated to some other public use, the turnpike company would be entitled to com11

VOL. IV.

GRAND RAPIDS, ETC. R. R. v. GRAND RAPIDS AND IND. R. R.

[No. 4.

Vol. IV.] pensation, and if the new use was essentially different from the old, the owner of the reversion would also be entitled to compensation. In the one case the public have the right to the free use of the road, in the other to the use upon paying toll, but in neither event are their rights considered in case of the road being appropriated to a different purpose.

If lands are taken for a site for a light-house or a fort, although clearly taken for public purposes, yet the public as such are excluded therefrom. The use for which it is designed is one that is inconsistent with individual rights either separate or collectively. In some cases where property is required for public use a mere temporary use or easement is required, while in others an apparently perpetual and exclusive occupation is required. In the former class whenever the public easement is relinquished or vacated, the owner of the reversion is restored to his original rights; while in the latter class it would not follow that he would have any rights whatever upon a relinquishment of the uses for which the property was acquired. It is apparent therefore that it will not do to say that property taken for a particular public use thereby becomes public for all purposes. The public may have the right to use it for certain purposes, and yet individuals or private corporations have rights therein at the same time. These rights may be considered as private rights, separate and distinct from the rights of the public. Wherever such private rights exist, they are entitled to protection and can only be devested in the same manner and under the same laws that individual rights may be.

Our conclusion upon this branch of the case is that the franchises or property of one railroad may be taken for the construction of another, in all cases where the property of an individual might be upon making compensation therefor.

We refer to the following authorities, and while perhaps none of the cases cited cover the entire ground here gone over, yet we think they fully support the view taken: Cooley Const. Lim. 523 et seq.; 1 Redfield on Railways, 229 et seq.; West River Bridge Co v. Dix, 6 How. 529; Richmond, &c. Ry. v. Louisiana, &c. Ry. 13 How. 81; Newcastle, &c. Ry. v. P. & I. Ry. 3 Ind. 464; Springfield v. Conn. R. R. 4 Cush. 63; Northern Ry. v. Concord, &c. R. R. 7 Fost. 183. Peoria, &c. R. R. v. Peoria & Springfield R. R. 66 Ill. 174; Enfield Toll Bridge Co. v. Hartford, &c. R. R. 17 Conn. 40; Matter of Kerr, 42 Barb. 119; Boston Water Power Co. v. Boston, &c. R. R. 23 Pick. 360; Central Bridge Co. v. Lowell, 4 Gray, 482; People v. Salem, 20 Mich. 452; Bench & Bar, July 1871, p. 97.

It follows that the decree must be

Affirmed with costs.

Vol. IV.]

LORILLARD v. MCDOWELL.

[No. 4.

SUPREME COURT OF THE UNITED STATES. - EASTERN DISTRICT OF PENNSYLVANIA.

[FEBRUARY, 1877.]

PATENT.

CONSTRUCTION OF CLAIM.

INFRINGEMENT.

LORILLARD & CO. v. MCDOWELL.

The formal expression as shown and described" is not to be taken to limit a claim to the exact construction shown and described. Hence where the claim of the patent was for a plug of tobacco having a hard label pressed into one of its faces as specified," the description setting forth that the label was to be applied underneath the wrapper, and it appeared that defendant applied his label outside of the wrapper, it was held that the claim was infringed and a preliminary injunction was granted.

THE facts are sufficiently stated in the opinion.

George Harding, for complainant.

Leonard Myers, contra.

MCKENNON, J. This is a motion for an interlocutory injunction, to restrain infringement of the patent set up in the complainant's bill.

An original patent was granted Charles Seidler, on the 12th of January, 1875, which was surrendered and reissued to him October 24, 1876. The invention is thus described: "I have discovered and successfully developed in practice, a means of marking and distinguishing tobacco in plugs. I prepare labels or distinguishing pieces of separate material, and impress them into the body of the plugs, one label into each plug, preferably putting the label under the outside wrapper, and giving it a character by raised letters or analogous device, which is recognizable through the flexible covering. The material of which these labels are composed is preferably sheet iron tinned, cut into a circular form, and having points or prongs bent backward from their edges, and with raised or sunken letters or marks upon their upper face to indicate the quality, origin, or trade-mark. Before the plug of tobacco is subjected to its final pressure, one of these labels is placed upon it in proper position, and, by powerful pressure, the prongs of the label are sunk into the tobacco so that its face is about flush with the outer surface of the plug, and adheres firmly to it. An outer leaf of properly dampened tobacco is then wrapped around the plug, which is subjected to a powerful pressure, and the label is seen beneath this wrapper, and is rendered thereby difficult of removal. The invention is therefore claimed under five heads, the first and third of which are:

"1. A plug of tobacco having a hard label pressed into one of its faces as specified.

"3. A plug of tobacco having letters or other decorative or distinguishing marks produced on a hard metallic surface, and pressed as specified.' These claims the respondents are alleged to have infringed, and construing them, as I think they must be construed, to indicate the impressment of a hard or metallic label upon either the inner or outer face of a plug of tobacco, the fact of infringement is clearly made out, both by the

Vol. IV.]

LORILLARD V. MCDOWELL.

[No. 4.

affidavits read in support of the motion and by an inspection of the tobacco manufactured and sold by the respondents.

This construction of the patent has been very earnestly contested upon the ground that the specification describes only the mode of applying the label to the plug underneath the outer covering, and that the words "as specified" limit the scope of the claims to that particular mode; but the patentee must be understood as merely describing what he regards as the best mode of practising his invention, as the law requires him to do, and not as excluding a method different from it only in a single detail, which produces the same result and is distinctly within its object. He claims to have discovered a new method of identifying tobacco, which consists in the attachment of a hard label to each plug by pressing into it the points or prongs which project from the under surface of the label, and thus the fundamental object of his invention is fully effectuated. When this is done the outside wrapper is applied; but the label is thus placed underneath the wrapper, not as auxiliary in any way to the specific office of the label, but avowedly only to render it more difficult of removal. It is obvious then that to dispense with the additional safeguard, and to apply the label outside of the wrapper, does not differentiate the devices, nor does it vary the method of attaching them to the plug in any essential degree.

Of the objections to the validity of the patent, but little need be said at this stage of the case. The first of these is to the novelty of the invention, or rather that it is a double use of an old device. But it is not shown to have been used for any purpose analogous to that contemplated by the patentee, or even remotely suggestive of such use. It was the result of considerable thought and of careful and repeated experiments, and supplied a perfect means of distinguishing the quality and origin of plug tobacco, which had not before been furnished to either the manufacturer or consumer.

Nor does the denial of its patentability seem to me to have any firmer foothold. Simple as it is, it nevertheless involved reflection and experiment to bring it to practical maturity; and its evident utility, indicated by its prompt displacement of other identifying devices, and its very extensive use even by the respondents, strongly attests its patentable merit.

The remaining objection, that the reissue is void as not being for the same invention described in the original patent, is clearly untenable. The drawings in both are the same, and the specifications of both are substantially the same. They both describe, as the invention, a hard or metallic label, applied to a plug of tobacco before it is subjected to its final pressure, with characters impressed upon it, indicating its quality, origin, or trade-mark, while in the original patent the claim is limited to tobaccos to which the label is applied underneath the wrapper. To remedy this restriction, inadvertively imposed, as the commissioner of patents has conclusively found, the reissue was properly granted, with an expanded claim to secure to the patentee the full benefit of the invention described, but not claimed in the original.

The motion for a preliminary injunction must therefore be allowed.

Vol. IV.]

MUNN V. THe People.

SUPREME COURT OF THE UNITED STATES.

[FEBRUARY, 1877.]

[No. 4.

CONSTITUTIONAL LAW.

OF THE POWER OF THE STATES TO FIX BY LAW THE CHARGES FOR STORAGE OF GRAIN IN WAREHOUSES.

MUNN v. THE PEOPLE.

.

It is within the power of a state to fix by law the maximum of charges for the storage of grain in warehouses in the state, although the grain is stored in bulk in such manner that the identity of different lots is not preserved.

66

...

A statute fixing such maximum is not repugnant to any of the provisions of the Constitution of the United States. 1. It does not "regulate commerce," within the meaning of section 8, article I. 2. It does not give a preference. to the ports of one state," within the meaning of section 9, article I. 3. It is not contrary to that part of the XIVth Amendment which provides that no state shall "deprive any person of life, liberty, or property, without due process of law."

IN error to the supreme court of the State of Illinois.

Mr. Chief Justice WAITE delivered the opinion of the court.

The question to be determined in this case is whether the general assembly of Illinois can, under the limitations upon the legislative power of the states imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in warehouses at Chicago and other places in the state having not less than one hundred thousand inhabitants," in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved."

It is claimed that such a law is repugnant

1. To that part of sec. 8, art. I. of the Constitution of the United States which confers upon Congress the power "to regulate commerce with foreign nations and among the several states;

2. To that part of sec. 9 of the same article, which provides that " no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another;" and

3. To that part of Amendment XIV. which ordains that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

We will consider the last of these objections first.

Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional unless it is clearly so. If there is doubt the expressed will of the legislature should be sustained.

The Constitution contains no definition of the word "deprive," as used in the fourteenth amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it when employed in the same or a like connection.

While this provision of the amendment is new in the Constitution of the United States, as a limitation upon the powers of the states, it is old