Vol. I.]

WARD v. FLOOD.

[No. 5.

in fine that of seeking and obtaining their safety and happiness. Article 6. No man nor corporation or association of men have any other title to obtain advantages or particular and exclusive privileges distinct from those of the community than what arise from consideration of services rendered to the public."

It will be seen that the language of the Massachusetts constitution prohibiting "particular and exclusive privileges" was fully as significant, to say the least, in its bearings on the general question in hand as is that of the fourteenth amendment of the federal Constitution securing "the equal protection of the laws."

The argument of the counsel for the plaintiff in the Massachusetts case, much like that of the counsel for the petitioner here, was that the separation of the races for educational purposes "is the occasion of inconveniences to colored children, to which they would not be exposed if they had access to the nearest public schools; it inflicts upon them the stigma of caste ; and although the matters taught in the two schools may be precisely the same, a school exclusively devoted to one class must differ essentially, in its spirit and character, from that public school known to the law, where all classes meet together in equality."

The opinion of the court, delivered by Mr. Chief Justice Shaw, maintained the rightful authority of the school committee to separate the colored children from the white children in the public schools of the city of Boston, and in the course of the opinion the learned chief justice remarked as follows: "It will be considered that this is a question of power, or of the legal authority of the committee intrusted by the city with this department of public instruction; because, if they have the legal authority, the expediency of exercising it in any particular way is exclusively with them. The great principle advanced by the learned and eloquent advocate of the plaintiff is, that by the constitution and laws of Massachusetts all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. This, as a broad, general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our Constitution of free government. But when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are equally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security. What those rights are, to which individuals in the infinite variety of circumstances by which they are surrounded in society are entitled, must depend on laws adapted to their respective relations and conditions.

66

Conceding, therefore, in the fullest manner, that colored persons, the descendants of Africans, are entitled by law, in this Commonwealth, to equal rights, constitutional and political, civil and social, the question then arises whether the regulation in question, which provides separate schools for colored children, is a violation of any of these rights.

"Legal rights must, after all, depend upon the provisions of law; cer

WARD V. FLOOD.

Vol. I.]

[No. 5.

tainly all those rights of individuals which can be asserted and maintained in any judicial tribunal. The proper province of a declaration of rights and constitution of government, after directing its form, regulating its organization, and the distribution of its powers, is to declare great principles and fundamental truths, to influence and direct the judgment and conscience of legislators in making laws, rather than to limit and control them, by directing what precise laws they shall make. The provision that it shall be the duty of legislatures and magistrates to cherish the interests of literature and the sciences, especially the University of Cambridge, public schools and grammar schools in the towns, is precisely of this character. Had the legislature failed to comply with this injunction, and neglected to provide public schools in the towns, or should they so far fail in their duty as to repeal all laws on the subject, and leave all education to depend on private means, strong and explicit as the direction of the Constitution is, it would afford no remedy or redress to the thousands of the rising generation, who now depend on these schools to afford them a most valuable education and an introduction to useful life. . . . . The power of general superintendence vests a plenary authority in the committee to arrange, classify, and distribute pupils, in such a manner as they think best adapted to their general proficiency and welfare. If it is thought expedient to provide for very young children, it may be that such schools may be kept exclusively by female teachers, quite adequate to their instruction, and yet, whose services may be obtained at a cost much lower than that of more highly qualified male instructors. So, if they should judge it expedient to have a grade of schools for children from seven to ten, and another for those from ten to fourteen, it would seem to be within their authority to establish such schools. So, to separate male and female pupils into different schools. It has been found necessary, that is to say, highly expedient, at times, to establish special schools for poor and neglected children, who have passed the age of seven and have become too old to attend the primary school, and yet have not acquired the rudiments of learning to enable them to enter the ordinary schools. If a class of youth, of one or both sexes, is found in that condition, and it is expedient to organize them into a separate school, to receive the special training adapted to their condition, it seems to be within the power of the superintending committee to provide for the organization of such special school. . . . . In the absence of special legislation on the subject, the law has vested the power in the committee to regulate the system of distribution and classification; and when this power is reasonably exercised, without being abused or perverted by colorable pretences, the decision of the committee must be deemed conclusive. The committee, apparently upon great deliberation, have come to the conclusion that the good of both classes of schools will be best promoted by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt that this is the honest result of their experience and judgment. It is urged that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded on a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and

Vol. I.]

COOLEDGE v. McCone.

[No. 5.

feelings of the community, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper question for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say that their decision upon it is not founded upon just grounds of reason and experience, and is the result of a discriminating and honest judgment.

We concur in these views, and they are decisive of the present controversy. In order to prevent possible misapprehension, however, we think proper to add that in our opinion, and as the result of the views here announced, the exclusion of colored children from schools where white children attend as pupils cannot be supported except under the conditions appearing in the present case, that is, except where separate schools are actually maintained for the education of colored children; and that unless such separate schools be in fact maintained, all children of the school district, whether white or colored, have an equal right to become pupils at any common school organized under the laws of the State, and have a right to registration and admission as pupils in the order of their registration, pursuant to the provisions of subdivision 14, of section 1617, of the Political Code. Writ of mandamus denied.

MCKINSTRY, J. I concur in the judgment on the ground first considered in the opinion of the chief justice. February 24.

CIRCUIT COURT OF THE UNITED STATES. NINTH JUDICIAL CIRCUIT, DISTRICT OF CALIFORNIA.

[MARCH, 1874.]

PATENT: USE OF PART OF COMBINATION.

USELESS PARTS REJECTED.

C. C. COOLEDGE v. JOHN MCCONE.

A combination of three distinct parts is not infringed by the making and sale of two of the parts to be used without the third.

When the invention claimed and patented is a combination of three distinct parts, it is no infringement to make and use two of the parts, even though the third is useless.

BEFORE Sawyer and Hillyer, JJ.

The plaintiff is assignee of a patent issued to one Belknap, for a combination of certain shoes and dies, and bevelled bars, used in amalgamating pans for the amalgamation of silver ores. The defendant, a foundryman, is charged with making and selling the invention in violation of plaintiff's rights. It appeared in the testimony that some time in 1866, before the assignment under which plaintiff claims, the patentee, Belknap, brought the patterns of his shoes and dies to defendant's foundry, and

[No. 5.

procured him to cast shoes and dies from those patterns, which the patentee himself put into the pans of certain mills in the neighborhood without charge, for the purpose of introducing them. But the defendant made no "bevelled bars,' to go with the shoes and dies. These could be made of wood as well as of iron, and Belknap himself made the bevelled bars for those mills wherein he had introduced his invention the defendant casting from the patterns furnished only the shoes and dies. Afterwards, between 1867 and the commencement of this suit, and after the assignment of Belknap's patent to plaintiff, the defendant cast and furnished to various mill-owners shoes and dies of the same kind. Mill-owners would bring to defendant their own patterns in such form as they desired the castings to be made, and the defendant would cast the shoes and dies from the patterns so furnished, and the parties for whom they were cast would take them away, put them into the pans in their mills themselves, and there use them. They sometimes obtained dies without the shoes, and used them with other kinds of shoes; and sometimes obtained shoes without the dies, and used them with other kinds of dies. The shoes and dies were not necessarily used together; as the Belknap shoe could be, and sometimes was, used with other kinds of dies, and the Belknap die with other shoes. Defendant never inquired what use was to be made of the shoes and dies cast by him, but he simply cast and furnished them from patterns brought by his customers. There was no testimony tending to show that he ever cast or furnished any of the "bevelled bars," either with or without the shoes and dies. On the contrary, the testimony showed affirmatively that he never did cast or furnish any bevelled bars. There was, also, no testimony tending to show that the parties using the shoes and dies cast and furnished by defendant ever procured from other sources, or used in connection with the shoes and dies furnished by him, any of the "bevelled bars" mentioned in the plaintiff's patent, or any mechanical substitute therefor, except in those instances where the patentee himself furnished them as aforesaid, in his efforts to introduce his invention. The casting and furnishing of shoes and dies as before stated to parties, other than Belknap, are the acts complained of as constituting an infringement of plaintiff's rights.

At the close of plaintiff's testimony, counsel for the defendant moved the court to advise the jury to find a verdict for the defendant, on the ground, that there was no testimony tending to show that the defendant had manufactured or sold the plaintiff's invention, the invention claimed and patented being, as defendant insisted, a combination of shoes, dies, and the "bevelled bars ;" and as the "bevelled bars" had not been made or sold, or even used in connection with the shoes and dies furnished by defendant, the whole combination had not been made or sold; and that there is no infringement by making and using a part only of the combination.

After argument of the motion, and consultation between the judges, SAWYER, Circuit Judge, delivered the opinion of the court as follows:We have examined the specifications annexed to the patent very carefully, and it is very plain to our minds, that the patent is for a combination of several elements, or parts. The petitioner commences by describing the drawings, and then states as follows:

Vol. I.]

COOLEDGE v. MCCONE.

[No. 5.

"The nature of my invention consists in the arranging of shoes and dies having grooves or channels, cut obliquely from the circumference to the centre, terminating in a line of a radius to the centre or axis. My invention also relates to bevelled bars placed between each die, and partially filling the grooves, for the purpose of keeping the ore near the same as they pass each other." Then he describes how the dies are fixed to the disks, and tells us how other dies have been used in a different arrangement; points out how the bevelled bars are arranged in connection with the other parts; describes their operation, and concludes with the claim, which is in the following words:

"I do not claim broadly the use of shoes and dies for the purpose of reducing amalgamating ores, for these are well known and used. What I do claim, however, and desire to secure by letters patent, is, constructing and placing the shoes and dies upon upper and nether disks obliquely at about the angle as described, together with the bevelled bars B. B. B., &c. ; substantially as described, and for the purposes set forth."

The claim is for a combination. There is no claim that the dies are new; that the direction of the grooves is new, or that the bars are new. But what he does claim is the arrangement of these together.

Placing the shoes on upper and nether disks about the angles described, together with the bevelled bars B. B. B., substantially as described, and for the purposes set forth." These shoes and dies, arranged as described, "together with;" that is to say, united with, in conjunction with, in combination with the bevelled bars, substantially as described. Now, it may be that this claim is not made in such a way as to be so advantageous to the patentee, as he was entitled to make it. It may be that he has arranged his dies in connection with the disks in such a way as to be an improvement by itself, and which may entitle him to a patent for that arrangement, unconnected with the bevelled bars; and that he might have put in a claim and obtained a patent for such arrangement, independent of the bevelled bars. It may be that, having obtained a patent for such arrangement, he could, also, have obtained a patent for a further combination of that arrangement in connection with the bevelled bars. If that was the object intended to be covered by this patent, the claimant has failed to express it. It is for the arrangement of the dies and shoes together with, that is to say, in combination with, the bars that is patented. The claim to the whole is made as one indivisible claim — as an entirety and the entire combination must be made and sold or used, in order to constitute an infringement. If the patentee failed to get all he desires; or failed to get his patent in such a form that any part could not be used without an infringement, he has only done what, perhaps, a majority of patentees before him in the first instance have done. It may be necessary to surrender the patent, and procure a reissue in order to secure the full benefit of his invention. However this may be, he has made his claim in his own way, and the patent on that claim is, for this one, single, indivisible combination of all the elements as an entirety, in manner substantially as described, and for the purposes indicated; that is to cut the pulp like shears, and throw it up to the cutters by means of the bars.

to say,

The charge in this complaint is, that the defendant has made and sold