We can see no substantial diversity between that apparatus and the alleged invention of the appellee. In the former, as in the apparatus of the appellee, "the freezing mixture" has "no contact with the atmosphere" of the chamber where the work is to be done. If the freezer be full and the preserving chamber be full, there would be room but for little air in either. If either were only partially full, the vacuum would be filled with that substance. The cold is generated by the same materials and applied under the same circumstances. If the cream were taken out of the freezer and fish put in, there would be, in all substantial respects, the same apparatus, process and result. If the preserving chamber were as tight as the freezer, either might be convertibly used for the purpose of the other.

"The preservative effect of cold, and especially of dry cold, is well known and exemplified in the keeping of meat and fruit in ice-houses. Animals have been found undecomposed in the ice of Siberia which belong to extinct species, and which must have been embalmed in ice for ages." Tit. "Antiseptic," 1 Amer. Encyclo. 570.

Artificial freezing is usually applied to water and articles of food. "There are two general methods of effecting it, viz.: By liquefaction and by vaporization and expansion. The method by liquefaction is performed by freezing mixtures which are formed by mixing together two or more bodies, one or all of which may be solid. They are used together in vessels having three or more concentric apartments—an inner one, containing the article to be frozen; one eccentric to this, containing the freezing mixture, provided with some contrivance for agitation; one, again, outside of this, filled with a nonconductor of heat, as powdered charcoal, gypsum or cotton wool; and sometimes one between them for holding water." Tit. "Freezing," 7 Amer. Encyclo. 474.

Here the principle and substance of the appellee's claim are set forth as belonging to the general domain of knowledge and science. It is known that Lord Bacon applied snow to poultry to preserve it. He said the process succeeded "excellently well." The experiment was made in his old age, imprudently, and brought on his last illness.

Examined by the light of these considerations, we think this patent was void on its face and that the court might have stopped short at that instrument and, without looking beyond it into the answers and testimony, sua sponte, if the objection were not taken by counsel, well have adjudged in favor of the defendant.

These views render it unnecessary to consider the exceptions to the master's report. The decree of the Circuit Court is reversed and the cause will be remanded, with directions to dismiss the bill.

PEYROUX et al. v. HOWARD & VARION.

(Supreme Court of the United States, 1833. 7 Pet. 324, 8 L. Ed. 700.)

8

Mr. Justice THOMPSON delivered the opinion of the court:

This case comes up from the District Court of the United States for the Eastern District of Louisiana. The proceedings in the court below were in rem against the steamboat Planter, to recover compensation for repairs made upon the boat.

The libel states that Howard and Varion, shipwrights, residing in the city of New Orleans, had found materials and performed certain work on the steamboat Planter, for which the said steamboat and her owners were justly indebted to them in the sum of two thousand one hundred and ninety-three dollars and thirty-five cents; and alleges that by the admiralty law, and the laws of the state of Louisiana, they have a lien and privilege upon the boat, her tackle, apparel and furniture for the payment of the same; and prays admiralty process against the boat, and that the usual monition may issue.

The appellants afterwards appeared in court and filed their claim and plea, alleging that they are citizens of Louisiana, and residing in the city of New Orleans, and that they are the sole and lawful owners of the steamboat Planter, and alleging further that the libelants are also citizens of the same state, and that the court had no jurisdiction of the case.

The plea to the jurisdiction of the court was overruled, and a supplemented and amended claim and answer filed, denying all and singular the facts set forth in the libel; and by consent of parties an order of court was entered that the testimony of the witnesses for the respective parties be taken before the clerk of the court, and read in evidence upon the trial, subject to all legal exceptions; and upon the hearing of the cause the court decreed that the claimants should pay to the libelants two thousand one hundred and ninety-three dollars and thirty-five cents, and costs of suit. An appeal to this court was prayed and allowed.

Upon the argument here, the following points have been made: 1. It does not appear upon the proceedings that the court below had jurisdiction of the case.

2. That the libelants had waived any privilege or lien upon the steamboat under the law of Louisiana, and therefore proceedings in rem were improper.

3. If the court had jurisdiction, the decree is erroneous on the merits.

8 The statement of the case, the arguments of counsel, and a portion of the opinion are omitted.

The want of jurisdiction in the District Court is not put on the ground set up in the plea in the court below, that all the parties were citizens of the same state. This has been very properly abandoned here, as entirely inapplicable to admiralty proceedings in the District Court. But it is said that it does not appear upon the face of the proceedings that the cause of action properly belonged to admiralty jurisdiction. There can be no doubt that it must appear from the proceedings that the court had jurisdiction of the case. *

It is said, however, that the place where these services were performed was not within the jurisdiction of the admiralty. The services in this case were performed in the port of New Orleans, and whether this was within the jurisdiction of the court or not, will depend upon the fact whether the tide in the Mississippi ebbs and flows as high up the river as New Orleans.

This is a question of fact, and it is not undeserving of notice that although there was a plea to the jurisdiction of the court interposed, the objection was not set up. Had it been put in issue, the evidence would probably have removed all doubt upon that question; not having been set up, it affords an inference that the objection could not have been sustained by proof.

But we think we are authorized judicially to notice the situation of New Orleans, for the purpose of determining whether the tide ebbs and flows as high up the river as that place. In the case of The Apollon, 9 Wheat. 374, 6 L. Ed. 111, it is said by this court that it has been very justly observed at the bar that the court is bound to take notice of public facts and geographical positions; and in the case of the steamboat Thomas Jefferson, the libel claimed wages earned on a voyage from Shippingport in the state of Kentucky, up the river Missouri, and back again to the port of departure. And the court say that the voyage, not only in its commencement and termination, but in all its intermediate progress, was several hundred miles above the ebb and flow of the tide, and, therefore, in no just sense can the wages be considered as earned in a maritime employment. It is fairly to be inferred that the court judicially noticed the fact that the tide did not ebb and flow within the range of voyage upon which the services were rendered, as there is no intimation of any evidence before the court to establish the fact.

It cannot certainly be laid down as a universal, or even as a general proposition, that the court can judicially notice matters of fact. Yet it cannot be doubted that there are many facts, particularly with respect to geographical positions, of such public notoriety, and the knowledge of which is to be derived from other sources than parol proof, which the court may judicially notice. Thus in the case of United States v. La Vengeance, 3 Dall. 297, 1 L. Ed. 610, 1 Peter's Cond. Rep. 132, the court judicially noticed the geographical position of Sandy Hook. And it may certainly take notice judicially of like

notorious facts, as that the bay of New York, for instance, is within the ebb and flow of the tide.

The appellants' counsel has referred the court to Stoddard's Louisiana (164) for the purpose of showing that the tide does not ebb and flow at New Orleans; but we think it affords a contrary conclusion. The author says: "The tides have little effect upon the water at New Orleans. They sometimes cause it to swell but never to slacken its current." No distinction has ever been attempted in settling the line between the admiralty and common law jurisdiction, growing out of the greater or less influence of the tide. So far as that admiralty jurisdiction depends upon locality, it is bounded by the ebb and flow of the tide; and if the influence of the tide is at all felt, it must determine the question. No other certain and fixed rule can be adopted; and in determining this, we must look at the ordinary state of the water, uninfluenced by any extraordinary freshets.

The authority of Mr. Stoddard goes to show that the tides have some effect upon the water at New Orleans; they cause it to swell, but not so much as to slacken the current. In the case of Rex v. Smith et al., 2 Doug. 441, it became a question whether the sea could properly be said to flow above London Bridge. It was contended that the tide beyond that limit was occasioned by the pressure and accumulation backwards of the river water. Lord Mansfield said a distinction between the case of the tide occasioned by the flux of sea-water or by the pressure backwards of the fresh water of a river, seemed entirely new.

We think that although the current in the Mississippi at New Orleans may be so strong as not to be turned backwards by the tide, yet if the effect of the tide upon the current is so great as to occasion a regular rise and fall of the water, it may properly be said to be within the ebb and flow of the tide.

It has been argued on the part of the appellant that the evidence shows that this steamboat was to be employed in navigating waters beyond the ebb and flow of the tide, and therefore not employed in the maritime service. In the case of the steamboat Thomas Jefferson, 10 Wheat. 428, 6 L. Ed. 358, the court said, there is no doubt the jurisdiction exists, although the commencement or termination of the voyage may happen to be some place beyond the reach of the tide. The material consideration is, whether the service is essentially a maritime service, and to be performed substantially on the sea or on tide-water. All the service in the case now before the court was at New Orleans; and the first voyage, at all events, was to commence from that port. The objection, therefore, to the jurisdiction of the court cannot be sustained.

(C) Articles Injurious to Health

AUSTIN v. STATE.

(Supreme Court of Tennessee, 1898. 101 Tenn. 563, 48 S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703.)

Appeal from Circuit Court, Monroe County; J. G. Parks, Judge. W. B. Austin was convicted of selling cigarettes, and he appeals. Affirmed.

CALDWELL, J. W. B. Austin prosecutes this appeal in error from the judgment of the circuit court of Monroe county, whereby he was sentenced to pay a fine of $50 and costs of suit, for unlawfully selling cigarettes. He admits the sale, but denies that it was unlawful. Austin, who was a citizen and merchant of Monroe county, Tenn., purchased from the American Tobacco Company, a New Jersey corporation, at its factory in Durham, N. C., a lot of cigarettes in packages of 10 cigarettes each, which it shipped thence, by express, to him at his place of business in this state; and there he sold one of these packages without breaking, to W. G. Brown, an adult citizen of the same county. The statute under which the conviction was had unconditionally prohibits all sales of cigarettes, whether manufactured in this state or elsewhere. It provides "that it shall be a misdemeanor for any person, firm, or corporation to sell, offer to sell, or bring into the state for the purpose of selling, giving away, or otherwise disposing of, any cigarettes, cigarette paper, or substitute for the same; and a violation of any of the provisions of this act shall be a misdemeanor, punishable by a fine of not less than fifty dollars." Acts 1897, c. 30, § 1. Austin concedes that his sale to Brown was clearly within the prohibition of this act; yet he says it was lawful nevertheless. The substance of his contention is that his sale of an imported, commercial article in the original package, and that the statutory prohibition, as applied to such a sale, is obnoxious to the com-. merce clause of the federal Constitution, and therefore null and void. In considering this contention, we raise two vital inquiries-whether or not cigarettes are legitimate articles of commerce, and whether or not the sale shown in this case was of an "original package," in the true commercial sense.

1. Are cigarettes legitimate articles of commerce? We think they are not, because wholly noxious and deleterious to health. Their use is always harmful, never beneficial. They possess no virtue, but are inherently bad, and bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond question, their every tendency is towards the impairemnt of physical health and mental vigor.