cess or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." It is urged by counsel for plaintiff, in his painstaking and forceful brief, that Judge Maxey's construction of the word "only" is too narrow; but, without reference to the lexicographers, the word has a plain, ordinary, common-sense meaning equivalent to "solely," and so interpreted there can be no doubt, if plaintiff's cause of action is based on Act April 22, 1908, there is no jurisdiction, or rather venue, in this court. Furthermore, the question cannot be considered open. See McCormick v. Walthers, 134 U. S. 41, 10 Sup. Ct. 485, 33 L. Ed. 833. Plaintiff's petition alleges, substantially, that defendant is engaged in the railroad business as a common carrier in interstate commerce; that plaintiff was employed by defendant, and while in the actual discharge of his duties and employed in such commerce he was injured through the negligence of defendant. He specifies that his injury was caused by the incompetence and negligent acts of a certain track crew also employed by defendant, and by the defective condition of defendant's engine, because certain brake beams and shoes were missing. Plaintiff contends and ingeniously argues that the only allegation of his petition under which his cause of action might be construed to be based on the federal statutes is the one showing defendant to be engaged in interstate commerce; that for the purpose of passing on the exception this allegation should be treated as surplusage, and not considered; that if this is done he still has his action under the state law, and, jurisdiction being then based on diversity of citizenship only, the venue would lie in this district. I cannot agree with this theory. Conceding the act of Congress to be .constitutional, in the courts of the United States, at least, it is superior to and supersedes any state law or jurisprudence on the same subject. It is well settled that plaintiff need not base his cause of action on the federal statute specifically. If his petition alleges facts which bring the case within the purview of that law it is enough. That it does so is, to my mind, clear. Undoubtedly there is also jurisdiction by diversity of citizenship, and the defendant's domicile is not in this district. These views, if correct, demonstrate that the suit is cognizable in the Circuit Court on two distinct grounds of jurisdiction, therefore not "only" because of diversity of citizenship, and must be brought in the district of which the defendant is a resident. It may be that the most convenient place of trial, for defendant as well as plaintiff, is in this district, where the accident occurred. However, defendant has not seen fit to waive its rights, as it might have done, and, on the contrary, insists on trial at its domicile. No doubt it will be a hardship on plaintiff to be required to transport his witnesses to the domicile of defendant, or submit to the alternative of taking their testimony out of the hearing of the jury; but I can only enforce the law as I understand it. The exception of defendant will be maintained, and the suit dismissed. BANCEL v. UNITED STATES. (Circuit Court, S. D. New York. November 10, 1909.) No. 5,512. CUSTOMS DUTIES (§ 43*)-CLASSIFICATION-MODELING CLAY-PLASTILINA-SIMILITUDE "CLAY." Plastilina, or modeling clay, an article not containing clay, is not dutiable as "clay," either directly or by similitude, under Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 93, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1632), but as an "unenumerated manufacture," under section 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693). [Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 43.*] On Application for Review of a Decision by the Board of United States General Appraisers. In this case the importer sought to reverse a decision by the Board of Appraisers that had affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported under the tariff act of 1897. The Board's opinion, by Waite, General Appraiser, reads in part as follows: "The commodity is known as modeling clay. It is used by artists and others engaged in plastic work, for making busts and models. The chemist reports that it contains 60.36 per cent of sulphur and 31.12 per cent of fatty anhydrides, with a small amount of each of the following ingredients: Unsaponifiable oil, zinc oxide combined, zinc oxide free, insoluable siliceous matter, and color. The report further states that the presence of clay cannot be demonstrated. * The fact that the substance is very high in price would indicate that it is not properly classifiable as 'clay.' * * The testimony and invoices show that the cost in the country from which it is exported is over $150 per ton." Kammerlohr & Duffy (Joseph G. Kammerlohr, of counsel), for im porter. D. Frank Lloyd, Deputy Asst. Atty. Gen. (William A. Robertson, of counsel), for the United States. MARTIN, District Judge. The merchandise in question is invoiced as modeling clay, and is also sometimes called plastilina. It was assessed for duty at 20 per cent. ad valorem under Tariff Act July 24, 1897, c. 11, § 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), as a manufactured article, unenumerated. The particular claim of the importer relied upon on the argument was that said merchandise should be assessed as "clay" under section 1, Schedule B, par. 93, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1632), either directly or by application of the similitude clause of section 7, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693). The Board of General Appraisers affirmed the assessment of the collector. The question presented here seems to be solely one of fact. The Board properly classified the importation upon the facts as it found them. I see nothing in the record to justify the court in changing the Board's findings. Decision affirmed. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes AMERICAN TELEPHONE & TELEGRAPH CO. OF ALABAMA v. TOWN (Circuit Court, N. D. Alabama, N. D. January 27, 1910.) 1. COURTS (§ 282*)-JURISDICTION OF FEDERAL COURTS-FEDERAL QUESTION. Where jurisdiction of a federal court is predicated on the ground that the obligation of a contract has been impaired by a state, the questions to be considered are (1) the existence or not of the contract, (2) the obligation arising under it, and (3) whether there has been state legislation impairing the contract obligation. [Ed. Note. For other cases, see Courts, Cent. Dig. § 821; Dec. Dig. § 282.*] 2. CONSTITUTIONAL LAW (§ 115*)-OBLIGATION OF CONTRACTS-IMPAIRMENT BY STATE. Impairment by a state of the obligation of a contract must be by legislation subsequent to the making of the contract enacted either directly by the Legislature of the state or, through delegation, by one of its municipalities. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 274– 278; Dec. Dig. § 115.*] 3. CONSTITUTIONAL LAW (§ 115*)-OBLIGATION OF CONTRACTS-IMPAIRMENT BY STATE-MUNICIPAL ACTION. If an ordinance of a municipality is relied on as constituting an impairment of the obligation of a contract, it must be shown to have been enacted pursuant to, or under color of, legislative authority from the state, granted either subsequent to the contract or, if prior, of continuing effect. [Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 115.*] 4 CONSTITUTIONAL LAW (§ 115*)-OBLIGATION OF CONTRACTS-IMPAIRMENT BY STATE-MUNICIPAL ACTION-"ACT OF THE STATE." General and implied powers arising out of the charter of a municipal corporation do not constitute such legislative authority for an ordinance passed by the municipality repealing or repudiating a prior ordinance by which it entered into a contract as to render it an "act of the state" within the contract clause of the federal Constitution. [Ed. Note. For other cases, see Constitutional Law, Dec. Dig. § 115.*] 5. CONSTITUTIONAL LAW (§ 115*)-OBLIGATION OF CONTRACTS-IMPAIRMENT BY STATE-MUNICIPAL ACTION-IMPAIRMENT OF OBLIGATION.' A mere repudiation of a contract by a municipal corporation or a denial of liability thereon, whether by ordinance or otherwise, is not an "impairment of the obligation" of the contract within the contract clause of the federal Constitution. [Ed. Note. For other cases, see Constitutional Law, Dec. Dig. § 115.* For other definitions, see Words and Phrases, vol. 4, pp. 3412-3417.] 6. COURTS (§ 282*)-JURISDICTION OF FEDERAL COURTS-FEDERAL QUESTION. The passage by a municipal council of an ordinance and resolutions repealing a prior ordinance granting a franchise to a telephone company, ordering it to remove its poles and wires from the streets as a nuisance. and in the event of its failure to do so directing suit against it to compel such removal, does not constitute laws impairing the obligation of the contract made by the franchise ordinance so as to confer upon a federal court jurisdiction of a suit to enjoin their enforcement. [Ed. Note. For other cases, see Courts, Cent. Dig. § 821; Dec. Dig. § 282.* Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C. A. 7.] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes In Equity. Suit by the American Telephone & Telegraph Company against the Town of New Decatur. On motion for preliminary injunction. Motion denied for want of jurisdic.ion. Callahan & Harris, John C. Eyster, and Knox, Acker & Blackmon (Charles D. M. Cole, of counsel), for plaintiff. W. T. Lowe, A. F. Fite, and Tyson, Wilson & Martin, for defendant. GRUBB, District Judge. This was a bill in equity, the purpose of which was to enjoin the defendant from interfering with the plaintiff's telephone system, consisting of lines of poles and wires, as constructed in the town of New Decatur, Ala., and from instituting legal proceedings in the state courts to enjoin the plaintiff from operating, maintaining, and managing its telephone system in that town. Jurisdiction in the federal court is claimed solely because the controversy is claimed to be one arising under the Constitution of the United States. Diversity of citizenship does not exist between the parties. The action of the defendant, complained of in and sought to be restrained by the bill of complaint, is contended to be in violation of article 1, § 10, of the Constitution, and of the due process clause of the fourteenth amendment thereto, and the jurisdiction of this court depends upon whether the bill of complaint shows that such claim is made out by the facts alleged in it. The bill avers a grant to plaintiff by defendant on June 7, 1898, by ordinance, of a franchise to occupy with its poles and wires the highways of the town, subject to supervision and regulation under the police power of the municipality; the acceptance of the grant by plaintiff; and the construction of its poles and wires in the highways, pursuant to said grant, and the use of said highways thereunder for a period of about six years. It further avers that on March 14, 1904, the town of New Decatur adopted an ordinance, the legal effect of which was to repeal the former ordinance granting the franchise; that on May 3, 1904, the defendant adopted another ordinance, providing (1) for the removal from the highways of plaintiff's poles and wires by plaintiff; (2) in the event of plaintiff's failure to effect such removal in 30 days, for the removal thereof by the town officers; and (3) declaring the maintenance of said poles and wires thereafter by plaintiff a nuisance, for which plaintiff's employés and officers were made responsible. It further avers the passage of two resolutions by defendant, the first on May 3, 1904, and the second on May 11, 1904, directing the attorneys of the defendant to institute legal proceedings in the state courts for the purpose of (1) restraining the plaintiff from engaging in and carrying on the telephone business in the town of New Decatur, after the expiration of its existing license, and forbidding the town clerk to reissue a license to it for that purpose, and (2) compelling it to remove its poles and wires from the highways of the town and to cease using them in its telephone business. It further avers that, in pursuance of the said ordinances and resolutions, the authorities intend. to take steps to force plaintiff to remove its poles and wires from the highways and cease using and operating them. Where jurisdiction is predicated upon the ground that the obligation of a contract has been impaired by a state, the questions to be considered are (1) the existence or not of the contract, (2) the obligation, arising under it, and (3) whether there has been state legislation impairing the contract obligations. If the conclusion is reached by the court in this case that the bill of complaint fails to show state legislation impairing contract obligations, then the bill should be dismissed for want of jurisdiction, though the ordinance of June 7, 1898, created a valid contract between plaintiff and defendant to permit the use of its highways for plaintiff's poles and wires without limit as to time. Impairment by a state of the obligations of a contract must be by legislation subsequent to the making of the contract, enacted either directly by the Legislature of the state, or, through delegation, by one of its municipalities. McCullough v. Virginia, 172 U. S. 102-116, 19 Sup. Ct. 134, 43 L. Ed. 382; Oshkosh Water Co. v. Oshkosh, 187 U. S. 437-446, 23 Sup. Ct. 234, 47 L. Ed. 349. If the ordinance of a municipality is relied upon as constituting such impairment, it must be shown to have been enacted pursuant to or under color of legislative authority from the state. In the case of Hamilton Gas Light Co. v. Hamilton City, 146 U. S. 258, 266, 13 Sup. Ct. 90, 92, 36 L. Ed. 963, the court said: "The jurisdiction of that court (Circuit Court of the United States) can be sustained only upon the theory that the suit is one arising under the Constitution of the United States. But the suit would not be of that character, if regarded as one in which the plaintiff merely sought protection against the violation of an alleged contract by an ordinance to which the state has not in any form given or attempted to give the force of law. A municipal ordinance, not passed under supposed legislative authority, cannot be regarded as a law of the state within the meaning of the constitutional prohibition against state laws impairing the obligations of contracts. Murray v. Charleston, 96 U. S. 432-440 [24 L. Ed. 760]; Williams v. Bruffy, 96 U. S. 176-183 [24 L. Ed. 716]; Lehigh v. Easton, 121 U. S. 388-392 [7 Sup. Ct. 916, 30 L. Ed. 1059]; N. O. Waterworks v. Louisiana Sugar Co., 125 U. S. 18, 31, 38 [8 Sup. Ct. 741, 31 L. Ed. 607]. A suit to prevent the enforcement of such an ordinance would not, therefore, be one arising under the Constitution of the United States." In the case of Dawson v. Columbia Trust Co., 197 U. S. 178, 182, 25 Sup. Ct. 420, 422, 49 L. Ed. 713, the court said: "In the case before us, there was no legislation subsequent to the contract and it is not even shown that there was a color of previous legislation for the city's acts. These acts are alleged to be unlawful, and the allegation would be maintained by showing that they were not warranted by the laws of the state." The rule to be derived from these cases is that a municipal ordinance to constitute a basis of legislation impairing the obligation of a contract must be enacted under color of an act of the Legislature, either of subsequent enactment, or, if prior, then of continuing effect in the sense that it operates as a subsequent delegation to the municipality of authority to enact the ordinance complained of. The cases relied on by plaintiff's counsel do not conflict with this rule. In each the ordinance was authorized by express specific legislation, generally enacted after the accrual of the contract rights alleged to have been impaired, or, ast in the case of Cleveland v. Cleveland City Ry. Co., 194 U. S. 517, 24 Sup. Ct. 756, 48 L. Ed. 1102, by legislation, enacted before the making of the contract, but which was construed as being of continuing force |