have been issued with a full opportunity for knowledge, on the part of the applicants, of the infringement upon Gray's invention. The application of Gray was improperly jected. This seems to be admitted on all hands. It may further be stated, as part of the history of their case, that the invention of Gray has been finally patented; the Supreme Court of the District of Columbia, having reversed the decision of the Patent Office, which rejected it on the ground of laches. dia-rubber or India-rubber and some other material which will increase the erasive properties of the head." Drawings were attached to his specre-ifications which, as was said, exhibited "the elastic head, so made as to cover the end, as well as to extend around the cylindrical sides, of the pencil: But, "It was added," it is evident that the contour of the said head may be varied to suit the fancy or the taste of an artist or other person, and I do not limit my invention to the precise forms shown in the drawing, as it may have such or any other, convenient for the purpose, so long as it is made so as to encompass the pencil, and present an erasive surface about the sides of the same. A head made in my improved manner and applied to a pencil as above set forth, is of great practical utility to book-keepers, accountants and various other persons. The pointed form of the head will be very useful to draughtsmen, in erasing lines from their drawings when it may be desirable not to erase other lines in close proximity to that which it is desirable to erase. The elastic or rubber pencil head, made as above set forth, may be applied, not only to lead pencils, but to ink erasers, and other articles of like character." The next defense on the question of novelty is the existence and use of articles of rubber which, although not designed for tips for pencils, were yet substantially similar to Blair's tip, and could have been and were in fact occasionally used for the same purpose. These articles are rubber nipples. They are shown in exhibits and in the Hancock Book, published in 1857. The witness Oelzner, without attempt at contradiction, testifies to the public use and sale of these articles, at least from 1855 downwards, and that they were used by him and others for the erasing of pencil marks. As we have already seen, the Blair heads do not vary substantially because of thickness, size or shape, nor is the patent limited to any thickness, size or shape. These nipples were, therefore, directly within it and anticipatory of it. It makes no difference whether the nipples were, in fact, used as erasers, before Blair's application of 1859 or not; they were capable of such use, and the Blair patent cannot be sustained as a new use of an old article. The question which naturally presents itself for consideration at the outset of this inquiry is, whether the new article of manufacture, claimed as an invention, was patentable as such. If not, there is an end of the case and we need not go further. A patent may be obtained for a new or useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof. In this case, as has been seen, Blair's Mr. Chief Justice Waite delivered the opin-patent was for "a new manufacture," being a ion of the court: new article of manufacture, and determine what it is, and whether it was properly the subject of a patent. could not have been patented. Rubber had long been known, and so had rubber combined with other substances to increase its natural erasive qualities. new and useful rubber head for lead pencils. It On the 23d of July, 1867, James E. Blair, was not for the combination of the head with claiming to be the original or first inventor or the pencil, but for a head to be attached to a discoverer of a new and useful rubber head pencil or something else of like character. It for lead pencils,” received a patent for his in- becomes necessary, therefore, to examine the vention. He claimed "as a new article of man-description which the patentee has given of his ufacture, an elastic, erasive pencil head, made substantially as in the manner described." In his specification, he stated that he had "invented a new and useful cap or rubber head, It is to be made of rubber or rubber and some to be applied to lead pencils, etc., for the pur- other material which will increase its erasive pose of rubbing out pencil marks." The "nat-properties. This part of the invention alone ure of his invention," he said, was "To be found in a new and useful or improved rubber or erasive head for lead pencils, etc., and consists in making the said head of any convenient external form, and forming a socket longitud- It is to be of any convenient external form. inally in the same, to receive one end of a lead It may have a flat top surface, or its top may pencil, or a tenon extending from it." "The be of a semi-circular or conical shape, or any said head," he goes on to say," may have a flat other that may be desirable. This would seem top surface, or its top may be of a semi-circular to indicate clearly that the external form was or conical shape, or any other that may be de- not a part of the invention. It was, however, sirable. Within one end of the said head I form urged upon the argument, that the invention a cylindrical or other proper shaped cavity. This did consist in the projecting surfaces extendsocket I usually make about two thirds through ing out from the head, and which appear, as is the head, and axially thereof; but if desirable, claimed, in the drawings attached to the specthe socket or bore may extend entirely through ifications. It is true, that in two out of the three the said head. The diameter of the socket drawings projecting surfaces are indicated, but should be a very little smaller than that of the such is not beyond question the case with the pencil to be inserted in it. The elastic erasive third. The shape there shown is conical, exhead so made, is to fit upon a lead pencil at or tending to a point, and evidently intended to near one end thereof, and to be so made as to represent the form mentioned as specially surround the part on which it is to be placed, adapted to the use of draughtsmen in erasing and be held thereon by the inherent elasticity lines from their drawings. It was the end of of the material of which the head may be com- such a pencil, not the sides, that was to furnish posed. The said head is to be composed of In- | the particular advantage of form. But although drawings do accompany the specification and are referred to, it is evident that this reference is for the purpose of illustration only because the patentee is careful to say that "he does not limit his invention to the precise forms shown, as it may have such or any other convenient for the purpose, so long as it is made so as to encompass the pencil and present an erasive surface upon the sides of the same." Certainly words could hardly have been chosen to indicate more clearly that a patent was not asked for the external form, and it is very evident that the essential element of the invention as understood by the patentee was the facility provided for attaching the head to the pencil. | The prominent idea in the mind of the inventor clearly was the form of the attachment, not of the head. If additional proof of this is required, it may be found in the further statement in the specifications, which locates the head for use at or near the end of the pencil, and so made as to surround the part on which it is to be placed and be held thereon by the inherent elasticity of the material of which it is to be composed. If intended for use at any other place than on the end of the pencil, the projections could not be essential, as any form that would surround the part would present the requisite erasive surface. ful, was not new. Consequently he took nothing by his patent. The decree of the Circuit Court is affirmed. Cited-92 U. S., 353, 357; 105 U. S., 572; 111 U. S., 608: 16 Blatchf., 138. JOHN S. ATCHISON ET AL., Appts., v. PETER PETERSON ET AL. (See S. C.. 20 Wall., 507-516.) Rights to running waters in mineral lands—invasion and impairment of right—injunction, when proper. *1. On the mineral lands of the public domains in the Pacific States and Territories, the doctrines of the common law declaratory of the rights of riparian proprietors respecting the use of running waters, are inapplicable,or applicable only to a very limited extent, to the necessities of miners, and inadequate for their protection. Their prior appropriation gives the better right to running waters, to the extent in quantity and quality necessary for the uses to which the water is applied. 2. What diminution of quantity or deterioration in quality will constitute an evasion of the rights cial circumstances of each case; and in controverof the first appropriator, will depend upon the spesies between him and parties subsequently claimAgain; the head is to have in it longitudi- ing the water, the question for determination is: nally, a socket to receive one end of a lead pencil extent of the original appropriation has been imwhether his use and enjoyment of the water to the or a tenon extending from it. This socket is to paired by the acts of the other parties. be cylindrical or of any other proper shape. the prior rights of the first appropriator have been 3. Whether, upon a petition or bill asserting that Usually, the inventor says, he made it so as to invaded, a court of equity will interfere to restrain extend part way through the head, but if desir- the acts of the party complained of, will depend able, it might be extended entirely through. It upon the character and extent of the injury alleged: must be within one end, but any particular lowhether it be irremediable in its nature; whether an action at law would afford adequate remedy; cation at the end is not made essential. This, whether the parties are able to respond for the clearly, is no more than providing that the piece damages resulting from the injury, and other conof rubber to be used must have an opening lead-equity in the exercise of its preventive process of siderations which ordinarily govern a court of ing from one end into or through it. This open- injunction. ing may be of any form and of any extent longitudinally. The form, therefore, of the inside cavity is no more the subject of the patent than the external shape. Any piece of rubber [No. 45.] Argued Oct. 28, 1874. Decided Dec. 21, 1874. APPEAL from the Supreme Court of the Territory of Montana. with a hole in it is all that is required thus far to meet the calls of the specifications, and thus The complaint in this case was filed in a Disfar there is nothing new, therefore, in the in-trict Court of Montana in Lewis and Clarke vention. Both the outside and inside may be alleged wrongful use by the defendants of a cerCounty, asking for an injunction against the made of any form which will accommodate the tain stream of water. Judgment having been parties desiring the use. given for the defendants, and affirmed, upon appeal, by the Supreme Court of Montana, the plaintiffs appealed to this court. But the cavity must be made smaller than the pencil and so constructed as to encompass its sides and be held thereon by the inherent elasticity of the rubber. This adds nothing to the patentable character of the invention. Everybody knew, when the patent was applied for, that if a solid substance was inserted into a cavity in a piece of rubber smaller than itself, the rubber would cling to it. The small opening in the piece of rubber, not limited in form or shape, was not patentable; neither was the elasticity of the rubber. What, therefore, is left for this patentee but the idea that if a pencil is inserted into a cavity in a piece of rubber smaller than itself the rubber will attach itself to the pencil, and when so attached become convenient for use as an eraser? An idea of itself is not patentable, but a new device by which it may be made practically useful is. The idea of this patentee was a good one, but his device to give it effect, though use The case is fully stated by the court. *Head notes by Mr. Justice FIELD. NOTE. Title to water by appropriation, common law rule; rule of mining States. rian proprietor, confers no exclusive right to the use of it as against another riparian proprietor unless the latter's rights are impaired by grant or adversely for more than twenty years, or the comlicense, or the prior appropriation has continued mon law has been modified by local usage or by statutory enactment. Palmer v. Mulligan, 3 Caines, 307; S. Č., 2 Am. Dec., 270; Platt v. Johnson, 15 Johns., 213; S. C., 8 Am. Dec. 233; Martin v. Bigelow, 2 Aikens, 184: S. C., 16 Am. Dec., 696; Hoy v. Sterrett, 2 Watts, 327; S. C., 27 Am. Dec., 313; Stout Davis v. Fuller, 12 Vt., 178; S. C., 86 Am. Dec., 334; v. McAdams, 2 Scam., 67; S. C., 33 Am. Dec., 441; Evans v. Merriweather, 3 Scam., 492; S. C., 38 Am. Prior appropriation of water of stream by a ripa Mr. Justice Field delivered the opinion of 'he court: This is a suit for an injunction to restrain the defendants from carrying on certain mining op erations on a creek in the County of Clarke and Lewis, in the Territory of Montana, known as the Ten Mile Creek, by which it is alleged that the water diverted by the plaintiffs from the stream for mining purposes is deteriorated in quality and value. It appears from the evidence that the plaintiffs are the owners of two ditches or canals known respectively as the Helena Water Ditch and the Yaw-Yaw Ditch, by which the creek mentioned is tapped, and the water diverted and conveyed a distance of about eighteen miles, to certain mining localities known as the Last Chance and Dry Gulches, and there sold to miners. The parties through whom the plaintiffs derive their interest, asserted a claim to the waters of the creek in November, 1864, and during that year commenced the construction of the ditches, and continued work there on until August, 1866. The work was then suspended, for want of means by the parties to continue it, until the following year, when it was resumed; and in 1867 the ditches were completed and put into operation. Their cost was $117,000. Whilst this work was progressing, and in the summer of 1865, there was some mining on the Ten Mile Creek, about fifteen miles above the point where the ditches of the plaintiffs tapped the stream, but there was no continued mining at that place until 1867. From that period until the present time, the defendants have been working, and are still working mining ground, situated at that point on the creek. In that work they, in some places, wash down the earth from the side of the hills bordering on the stream; in other places they excavate the earth and throw such portions as are supposed to con tain gold into sluices, upon which the water is turned. The earth from the washing on the hillsides and from the sluices designated in the vocabulary of miners as "tailings," and the water mixed with it, is carried into the creek and affects its whole current, which at that point has a volume of only about two hundred inches, according to the measurement of miners, filling the water with sand and sediment, and impairing its value at that point for further mining. Dec., 107; Hartzall v. Sill, 12 Pa. St., 248; Bliss v. Kennedy, 43 Ill., 67: Rudd v. Williams, 43 Ill., 385; Gilman v. Tilton, 5 N. H., 231; Cowles v. Kidder, 24| N. H., 378; Stillman v. W. R., &c., Co., 3 Wood. & M., 550; Parker v.Hotchkiss, 25 Conn., 321; Keeney,etc.,, Mfg. Co. v. Union Mfg. Co., 39 Conn.. 576; Tyler v. Wilkinson, 4 Mason, 397; Pugh v. Wheeler, 2 Dev. & B., 55: Blanchard v. Baker, 3 Greenl., 504; S. C., 23 Am. Dec., 504; Wadsworth v. Tillitson, 15 Conn., 366; S. C., 39 Am., Dec, 391. The common law doctrine does not prevail in California and some other of the mining States and Territories. In those States property in a stream of water on the public lands may be acquired by mere appropriation for mining or other useful purposes, as for irrigation or for the operation of mills, and the first appropriator is, to the extent of his appropriation, the owner as against all the world except the government. Lobdell v. Simpson, 2 Nev., 274; Ophir Silver Mining Co. v. Carpenter, 4 Nev., 534; Barnes v. Sabron, 10 Nev., 217; Strait v. Brown, 16 Nev., 317; S. C., 40 Am. Rep., 497; Hill v. Newnian, 5 Cal., 445; Kelly v. Natoma Water Co., 6 Cal., 107; Hoffman v. Stone, 7 Cal., 46; Hill v. King, 8 Cal., 336; Bear Riv., etc., Co. v. N. Y. Mining Co., 8 Cal., 327; McDonald v. Bear Riv., etc., Co., 13 Cal., The plaintiffs, in substance, alleged that the "tailings" thus thrown into the current are carried down the stream into their ditches, thereby obstructing the flow of the water through them, and deteriorating it in quality and value; and they insist that, as prior appropriators of the waters of the stream, they are entitled to its use without such deterioration; and for the protection of their rights they ask an injunction to restrain the defendants from the further commission of the alleged grievance. By the custom which has obtained among miners in the Pacific States and Territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in placers, veins or lodes, or of waters in the streams on such lands for mining purposes, is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law declaratory of the rights of riparian owners were, at an early day. after the discovery of gold, found to be inapplicable or applicable only in a very limited extent to the necessities of miners, and inadequate to their protection. By the common law, the riparian owner on a stream not navigable, takes the land to the center of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate. And as all such owners on the same stream have an equality of right to the use of the water, as it naturally flows, in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him. "It is wholly immaterial," says Mr. Justice Story, in Tyler v. Wilkinson, 4 Mas., 379, "whether the party be a proprietor above or below in the course of the river; the right being common to all the pro 220; Kidd v. Laird, 15 Cal., 161; Ortman v. Dixon, 13 Cal., 33; Phoenix Water Co. v. Fletcher, 23 Cal., 481; Wixon v. Bear Riv., etc., Co., 24 Cal., 367; Hill v. Smith, 27 Cal., 480; Parks Can., etc., Co. v. Hoyt, 57 Cal., 44; Crane v. Winsor, 2 Utah, 248; Schilling v. Rominger, 4 Colorado, 100. Such rights have been confirmed by Congress. Act of July 26th, 1866. This Act is held by this court to be a confirmation of pre-existing rights which the government has by its policy heretofore recognized. Broder v. Natoma Water, etc., Co., 101 U.S.,247; Jennison v. Kirk, 98 U. S., 453. This doctrine applies only to public lands. No such right can be acquired where the title to the lands upon which the stream is has passed from the government, but the owner of the land is the owner of the stream and the common law rule prevails. Union M., etc., Co. v. Ferris, 2 Sawy., 176; Vansickle v. Haines, 7 Nev., 249; Crandall v. Woods, 8 Cal., 136; Leigh v. Independent Ditch Co., 8 Cal., 323. Where this right by appropriation is once vested, a subsequent grantee from the government takes subject to it. Broder v. Natoma Water, etc., Co., 101 U. S., 247; Barnes v. Sabron, 10 Nev., 217; Osgood v. Eldorado, etc., Co., 56 Cal., 571. prietors on the river, no one has a right to di minish the quantity which will, according to the natural current, flow to the proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all." "Every proprietor of lands on the banks of a river," says Kent, "has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of the water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above without a grant or an unin terrupted enjoyment of twenty years which is evidence of it. This is the clear and settled doctrine on the subject, and all the difficulty which arises consists in the application." 3 Kent, Com., 439 (marg.) This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the govern ment being the sole proprietor of all the public lands, whether bordering on streams or other wise, there was no occasion for the application of the common law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acquiescence, assented to the general occupation of the public lands for mining, and to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general explora tion, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific States and Territories by their customs, usages and regulations every where recognized the inherent justice of this principle; and the principle itself was at an early period recognized by legislation and enforced by the courts in those States and Territories. In Irwin v. Phillips, 5 Cal., 140, a case decided by the Supreme Court of Califor nia in January, 1855, this subject was considered. After stating that a system of rules had been permitted to grow up with respect to mining on the public lands by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region had been tacitly assented to by the Federal Government, and heartily encouraged by the expressed legislative policy of the State, the court said: "If there are, as must be admitted, many things connected with this system which are crude and undigested, and subject to fluctuation and dispute, there are still some which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res judicata. Among these the most important are the rights of miners to be protected in their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines to supply the necessities of gold diggers and without which the most important interests of the mineral region would remain without development. So fully recognized have become these rights, that without any specific legislation conferring or confirming them, they are alluded to and spoken of in various Acts of the Legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law-makers." This doctrine of right by prior appropriation, was recognized by the legislation of Congress in 1866. The Act granting the right of way to ditch and canal owners over the public lands, and for other purposes, passed on the 26th of July of that year, in its 9th section declares "That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same." 14 Stat. at L., 253. The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is limited in every case, in quantity and quality, by the uses for which the appropriation is made. A different use of the water subsequently does not affect the right; that is subject to the same limitations, whatever the use. The appropriation does not confer such an absolute right to the body of the water diverted that the owner can allow it, after its diversion, to run to waste and prevent others from using it for mining or other legitimate purposes; nor does it confer such a right that he can insist upon the flow of the water without deterioration in quality, where such deterioration does not defeat nor impair the uses to which the water is applied. Such was the purport of the ruling of the Supreme Court of California in Can. Co. v. Vaughn, 11 Cal., 143, where it was held that the first appropriator had only the right to insist that the water should be subject to his use and enjoyment to the extent of his original appropriation, and that its quality should not be impaired so as to defeat the purpose of that appropriation. To this extent, said the court, his rights go and no further; and that, in subordination to them, subsequent appropriators may use the channel and waters of the stream, and mingle with its waters other waters, and divert them as often as they choose; that whilst enjoying his original rights the first appropriator had no cause of complaint. In the subsequent case of Ortman v. Dixon, 13 Cal., 33, the same court held to the same purport, that the measure of the right of the first appropriator of the water 1874. CANNON V. NEW ORLEANS. as to extent follows the nature of the appropria-tained, and which is only to a limited extent attion or the uses for which it is taken. See,also, tributable to the mining of the defendants, if at all, is hardly appreciable in comparison with Lobdell v. Simpson, 2 Nev., 274. the damage which would result to the defendants from the indefinite suspension of work on their valuable mining claims. The defendants are also responsible parties, capable, according to the evidence, of answering for any damages which their mining produces, if any, to the plaintiffs. Under these circumstances we think there was no error in the refusal of the court below to interfere by injunction to restrain their operations, and in leaving the plaintiffs to their remedy, if any, by an action at law. With respect to the water diverted by the What diminution of quantity, or deterioration in quality, will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case, considered with reference to the uses to which the water is applied. A slight deterioration in quality might render the water unfit for drink or domestic purposes, whilst it would not sensibly impair its value for mining or irrigation. In all controversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the ex-Yaw-Yaw ditch, it is shown that its deterioratent of his original appropriation have been impaired by the acts of the defendant. This is substantially the rule laid down in Hill v. Smith, 27 Cal., 483; Yale, Mines, 194. But whether, upon a petition or bill asserting that his prior rights have been thus invaded, a court of equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged; whether it be irremediable in its nature; whether an action at law would afford adequate remedy; whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction. If, now, we apply the principles thus stated to the present case, the question involved will be of easy solution. It appears from the evidence that there is at the point where the defendants work their mining claims only about two hundred inches of water in the creek, according to miners' measurement; that between that point and the point where the Helena ditch taps the creek, the distance is about fifteen miles; and that between those points the creek is supplied by several tributary streams of clear water, so that at the point where the water is diverted its volume amounts to about fifteen hundred inches Of this water the Helena ditch diverts five hundred inches, and conveys it nearly eighteen miles to the localities where it is sold. Running water has a tendency to clear itself, and that result is often produced by a flow of a few miles. But in this case the evidence shows that the water as it enters the Helena ditch is muddied and to some extent is affected by sand. At the same time there is a great preponderance in the evidence to the effect that the deterioration in quality from this circumstance is very slight and does not render the water to any appreciable extent less useful or salable for mining purposes at the localities to which it is conveyed; and that no additional labor is required on the ditch on account of the muddied condition of the water. There is also much doubt left by the evidence whether the sand carried into the ditch does not to a very great extent come from the hillsides lying between it and the mining of the defendants, or lying along the course of the ditch. A sand-gate at the head of the ditch is necessary, whether there is or is not mining on the stream above; and the accumulation of sand from all sources, from the hillsides as well as from the mining of the defendants, only requires the additional labor of one person for a few minutes each day. The injury thus sus tion, so far as the deterioration exceeds that of the water in the Helena ditch, is caused by sand and sediment brought by a tributary which enters the creek below the head of the Helena ditch. The decree is affirmed. Cited-20 Wall., 681; 101 U. S., 276; 110 U. S., 374. JOHN W. CANNON, Piff. in Err., 0. CITY OF NEW ORLEANS. (See S. C., 20 Wall., 577-583.) Tonnage tax, cannot be imposed by city-compensation for use of wharves, etc., when may be required-unlawful city ordinance. *1. An ordinance of the City of New Orleans, which demanded of all steamboats which shall moor or land in any part of the Port of New Orleans, a sum measured by the tonnage of the vessel, is a tonnage tax within the meaning of the Federal Constitution and, therefore, void. 2. It is a tax for the privilege of stopping in the Port of New Orleans, and cannot be justified under the plea that it is intended as a compensation for the use of the wharves built by the City. 3. For the use of wharves, piers and similar structures, whether owned by individuals or by the City, or other corporation, a reasonable compensation may be charged to the vessel, to be regulated in the interest of the public by the State Legislature or City Council. 4. But in the exercise of this right, care must be taken that it is not made to cover a violation of the Federal Constitution, which prohibits the State to lay any duty of tonnage. 5. Any duty or tax, or burden imposed under the authority of the States, which is in its essence a contribution claimed for the privilege of arriving which is assessed on a vessel according to its carryand departing from a port of the United States, and ing capacity is a violation of that provision, unless the consent of Congress be obtained. [No. 450.] Submitted Nov. 24, 1874. Decided Dec. 14, 1874. N ERROR to the Supreme Court of the State of Louisiana. In this case a petition was filed in the Eighth District Court for the Parish of Orleans for an injunction against the collection of certain wharf taxes or dues. Judgment having been given for the defendant and affirmed upon appeal by the Supreme Court of the State, the pe titioner sued out this writ of error. The case is fully stated by the court. The question is as to the constitutionality of 417 |