spokeless, shaftless and open-ended drum, a frame in which the drums are mounted, and a covering upon the framework inclosing the outer drum with the exception of a feed aperture, substantially as described, and for the purpose set forth. (5) A machine for hulling green peas from the vines. comprising the combination of a revoluble outer drum and an inner revoluble beater carrying drum, the inner drum being prolonged beyond the discharge end of the outer drum, a supporting framework, and rollers pivoted on the said framework under each end of the outer drum, substantially as described, and for the purpose set forth. (6) In a machine for hulling and cleaning green peas, the combination of an endless traversing apron, revolving reels supporting the said apron, transverse cleats secured to the said apron and extending from edge to edge thereon, fixed convex-faced guide pieces in general line with the apron on each side thereof and having their convex surfaces toward the respective edges of the said apron, substantially as described, and for the purpose set forth."

These improvements plainly related to mere details of mechanism to better the working of the prior pea-hulling machines. They introduced no new principle of action. No devices in themselves new are disclosed here. At the most, easily perceived remedies were applied to manifest defects. Thus more convenient means for feeding and discharging the mass of vines were provided. An open-ended outer drum and a prolonged inner drum were obvious expedients. They were well-known devices for analogous purposes. All the improvements, changes, and additions here in question were obvious to mere mechanical skill. None of them involved invention in a patentable sense. Upon the proofs we have no hesitation in holding that the above-cited six claims of patent No. 500,299 lack patentable novelty, and are invalid. Aron v. Railroad Co., 132 U. S. 84, 10 Sup. Ct. 24, 33 L. Ed. 272; Iron Works v. Fraser, 153 U. S. 332, 14 Sup. Ct. 883, 38 L. Ed. 734; American Road Mach. Co. v. Pennock & Sharp Co., 164 U. S. 26, 17 Sup. Ct. 1, 41 L. Ed. 337; Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 20 Sup. Ct. 708, 44 L. Ed. 856.

The cross appeal of Charles P. Chisholm, John A. Chisholm, and Robert P. Scott involves only claim 5 of patent numbered 387,318, dated August 7, 1888, granted to Robert P. Scott, upon an application filed November 7, 1887, for "improvement in machines for hulling and separating green peas. The court sustained the claim, but held that it was not infringed by the defendant. The claim is as follows:

"(5) In a machine for hulling and separating green peas, an endless inclined separating apron provided with transverse slats arranged on the inside thereof, in combination with the rollers and the vertical side boards arranged at the sides or edges of said apron and operating to keep the same straight upon said rollers, substantially as described."

The specification describes hinged and overlapping slats, and says: "These slats, although overlapping at their adjacent ends, serve the same purpose as would solid slats, so far as guiding or keeping the apron straight is concerned; but at the same time, owing to their peculiar construction and arrangement, they will bend out of a straight line, but not sufficiently to prevent their ends from forcibly pushing against the side boards. This bending or hinging action of the slats at their ends also permits the apron to be raised at its sides or edges, so as to roll the peas toward its center, and also it allows said apron to receive a greater vertical throw or toss than

would be incident to the use of solid or unjointed slats running its entire width, since, were the latter used, their solid ends would rest upon the inclined guide flanges of the side boards, and thus prevent the full drop of the apron, and diminish its vibration."

In the machine used by the defendant there are straight transverse slats on the inner side of the apron extending in continuous pieces from edge to edge. They do not overlap, and are not hinged, but solid. Now, if this claim, in view of the prior art, is sustainable at all, it must be construed very narrowly. The specification virtually disclaims solid slats. The court below undoubtedly was right in holding that there was no infringement of this claim by the defendant.

The decree of the circuit court is reversed (except in respect to claim 5 of patent No. 387,318, as to which alone it is affirmed), and the cause is remanded to that court, with direction to enter a decree dismissing the complainants' bill, with costs to the defendant.

GRAY, Circuit Judge. I dissent from so much of the foregoing opinion of the majority of the court as relates in patent No. 421,244, granted to Chisholms, for an improvement in the method of hulling peas, and commonly called the "podder process." I am of opinion that this patent should be sustained as a true invention of a patentable process Its usefulness cannot be disputed, nor do I think its validity is open to attack. A careful examination of the Faure machine convinces me that it cannot be sustained as an anticipation of the invention of the patent here in suit. I do not find, either in the original patent of Madame Faure nor in the specification and claims of the first addition thereto, any hint of the method of hulling peas by impact. I admit that the drawings of the Faure machine and the arguments of counsel, make it probable that a large portion of the peas that went through it were hulled by impact, but that is an inference only from an examination of the machine itself. It does not appear in evidence that the thought of hulling by impact had ever occurred. to her, and the machine of her patent was built to act in a different way; that was, to hull peas by attrition and abrasion. "One who accomplishes a result by a process which is only partially or not at all understood by him, has invented nothing, and cannot deprive another, who afterwards discovers and proclaims the true principle of the operation, of the right of an inventor." In other respects, I am in accord with the majority of the court.

(115 Fed. 304.)

BOARD OF MAYOR, ETC., OF CITY OF MORRISTOWN, TENN., v. EAST TENNESSEE TELEPHONE CO.

(Circuit Court of Appeals, Sixth Circuit. April 8, 1902.)

No. 1,019.

1. MUNICIPAL CORPORATIONS-GRANT OF FRANCHISES IN STREETS-MODE OF EXERCISING POWER.

Power conferred on a city by its charter to grant privileges and franchises in the use of its streets "by ordinance" cannot be exercised by a mere resolution, nor can an ordinance of the city making such a grant be amended in respect to any of its terms or conditions by a resolution.

2. SAME-ACCEPTANCE OF GRANT-VALIDITY AND EFFECT.

An ordinance passed by a city, under power given by its charter, granting to a telephone company the right to erect and maintain its poles and wires in the streets. on certain conditions, when accepted by the company creates an irrevocable contract, unless the power to alter or revoke it is reserved, and an acceptance of such an ordinance as amended by a subsequent resolution created a valid and binding contract as against the city, which it could not repeal by a subsequent ordinance, although the resolution was in fact void and inoperative to change the terms of the original grant, where the company took no steps to withdraw its acceptance on that ground, but proceeded to avail itself of the grant, even though while doing so it continued to insist on the validity of the resolution as an amendment.

Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.

The East Tennessee Telephone Company is a corporation organized under the law of Kentucky, which is engaged in the operation of telephone systems in various towns of Tennessee. Prior to the controversy as to its right to do a local business and conduct an exchange at Morristown, it seems to have been conducting, in Morristown, a long-distance telephone station, by which the town was connected with other towns in the vicinity in which it was doing a local business. Prior to September, 1899, the local business and exchange at Morristown was done by a local Tennessee corporation called the Morristown Telephone Company. On September 1, 1899, the council of Morristown passed an ordinance giving to the East Tennessee Telephone Company the right to erect poles and string wires over the streets and alleys of the city for the purpose of conducting a local telephone exchange. This ordinance fixed the maximum rate of charges, and required that the city should be given the free use of two telephones, and the right to use the company's poles for stringing a fire alarm system. September 25, 1899, a resolution was passed by the Morristown city council giving to the telephone company the right to increase its maximum charges in respect to one class of telephones. On the day following, the company, in writing, accepted the terms of the ordinance as thus amended. In pursuance of the consent thus given, the company took some steps toward the enlargement of its local facilities, and incurred some expense in preparing for further more considerable extensions. There seems to have been some popular discontent with the resolution allowing an increased charge for service under the action of the city council last taken, which led to the repeal on November 17, 1899, of the ordinance of September 1st. Pending the matters stated, the local company seems to have been in the hands of a receiver appointed by the circuit court of the United States upon a creditors' bill. Under this creditors' proceeding the entire property and franchises of the Morristown Telephone Company were brought to a judicial sale. At this sale the property

2. Rights of telegraph and telephone companies to use of streets, see note to Southern Bell Telephone & Telegraph Co. v. City of Richmond, 44 C. C. A.

and franchises of the company were purchased by the East Tennessee Telephone Company, and the sale confirmed and title vested February 28, 1900. From this time the last-named company claimed to exercise all the rights and franchises which pertained to the old Morristown Telephone Company as well as such rights and franchises as had been granted to it by virtue of the ordinance and resolution heretofore mentioned. The municipal authorities, upon the other hand, denied the validity of the ordinance under which the Morristown Telephone Company had been maintaining its poles and wires upon the streets, and denied the authority of the East Tennessee Telephone Company as a foreign corporation engaged in a competitive business to acquire the rights and franchises of the Morristown Telephone Company. The Morristown authorities also denied that the East Tennessee Telephone Company had acquired any street rights by virtue of the ordinance of September 1, 1899, or the resolution of September 15, 1899. In short, the position of the municipal authorities was that the East Tennessee Telephone Company had no authority from any source to erect or maintain a local telephone system by using the streets or alleys of the town for their posts and wires, and was therefore a trespasser upon the streets. Acting upon this line, the agents and officers of the East Tennessee Telephone Company were prevented by the municipal police from erecting poles or stringing wires for the purpose of prosecuting the business of a local telephone company. This interference is charged to have been destructive to the franchises claimed, and a remedy by injunction was therefore sought. Upon the pleadings and proof the court below granted a perpetual injunction as prayed. From this decree the municipality of Morristown has appealed, and assigned error.

W. N. Hickey and Robt. E. L. Mountcastle, for appellant.
Edward T. Sanford, for appellee.

Before LURTON and DAY, Circuit Judges, and WANTY, District Judge.

LURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court.

The power of the city of Morristown, prior to the amendment of its charter by the act of April 21, 1899, to grant any street rights to the Morristown Telephone Company, is denied, and an ordinance passed February 22, 1896, giving to that company the right to erect poles and string wires on the streets and alleys of the town, subject to certain limitations, is claimed to have been an ultra vires act. Morristown is incorporated under a special legislative charter passed. November 21, 1867. Priv. Acts Tenn. 1867-68, p. 18. Curiously enough, that charter does not, in express terms, deal with the question of the grant of privileges or franchises in the streets. Neither does it, as is usually the case, provide in so many words that the corporation shall have general "control" over its streets and alleys. Upon this rests the case against the validity of the ordinance under which the Morristown Telephone Company erected its poles on the streets of the town, and for years conducted a local telephone business without let or hindrance from the municipal authorities.

That no telegraph or telephone company can lawfully occupy the streets or alleys of a town with their poles and wires without legislative authority granted directly by the legislature, or by the municipal authority in pursuance of power delegated, is a plain and obvious proposition. That the authority to consent to the use of the streets

of a town by a railway, telegraph, or telephone company resides primarily in the legislature of the state is well settled also, though usually delegated to the municipality directly concerned. City of Knoxville v. África, 23 C. C. A. 252, 77 Fed. 501, 507. That the power to grant a right of way to street railways through the streets of a town, when its motive power is animal or electricity, may be implied from a grant of general control over the streets, we had occasion to decide in Detroit Citizens' St. Ry. Co. v. City of Detroit, 12 C. C. A. 365, 64 Fed. 628, 636, 26 L. R. Á. 667. The court below held that while the charter of Morristown did not, in express terms, delegate to the municipality general control over its streets and alleys, the powers in reference to streets and alleys were so numerous and sweeping as to be equivalent to general control. We are not prepared to disagree with this conclusion, but find it unnecessary to determine the validity of the ordinance under which the Morristown Telephone Company established its poles and wires on the streets of the town.

By the Tennessee act of April 21, 1899, the charter of Morristown was so amended as to include within the powers which might be exercised by ordinance the power to grant privileges and franchises in the use of the streets. This act removed all doubt as to the power of the city, and after its enactment, and on September 1, 1899, an ordinance was duly passed giving to the East Tennessee Telephone Company the right to erect poles and string wires on the streets and alleys of the city, "in such a way and manner as not to obstruct the streets and alleys, and to erect their poles in such a way as to be the least inconvenient to the public travel, as may be agreed by the street committee." The ordinance prescribed the maximum charges to be made, and required the company to give to the city two telephones free of charge, and to allow their poles to be used for the purpose of stringing a fire-alarm system. On the 25th of September, following, the city, on application of the East Tennessee Telephone Company, amended this ordinance by a resolution increasing the maximum rate chargeable by the company for one class of telephone service. On September 26, 1899, the telephone company wrote and signed on the foot of this original resolution an acceptance in these words:

"In consideration of this resolution, together with an ordinance heretofore passed, we accept both as taken together as a contract between the East Tennessee Telephone Company and the city of Morristown."

For some unexplained reason, the city council at a meeting held October 6, 1899, passed a resolution reciting the above clause as having been "added" to the resolution without authority, and ordering that the minutes of the former meeting be corrected by striking out the clause of acceptance above quoted. November 17, 1899, the council formally repealed the ordinance of September 1, 1899, under the claim that the city had the right to repeal or withdraw its consent to the use of the streets, as provided by that ordinance, at any time before the ordinance had been legally accepted. The argument that the repeal occurred before acceptance is based upon two propositions: First, that the resolution of September 26th was a void thing,