(39 Sup.Ct.) See cables having a rated breaking stress of 200 tons. The cables were supported by headblocks or saddles at the tops of the towers, and their ends were carried down and firmly anchored to the counterweighted bases of the towers. "Rigidity of the towers was desired; and in order to secure this and hold the towers rigid against any tendency to tip, tilt, or yield under the stress of the suspended cables and their loads, the platform base at the rear side of canal cut-was counterweighted by a block of each tower-that is, the side farthest from the cement concrete of over 150 tons weight, cast about the structural steel members of the base of the tower and extending along practically the entire length of the base. The entire *weight of each tower, including the tower proper, the trucks upon which it was mounted, and the concrete counterweight, was upward of 500 tons. No question is made but that plaintiff's | cables. The towers were of structural steel coninvention was broadly new, a pioneer in its struction; and taking the duplex cableways for line, and the patent entitled to a broad con- illustration, each tower in vertical cross section struction and the claims to a liberal appli- from front to rear was in the shape of a rightcation of the doctrine of equivalents. angle triangle, with a base of approximately Brothers v. Lidgerwood Mfg. Co., 223 Fed. about 85 feet, and a hypothenuse of about 98 50 feet, a perpendicular or vertical height of 359, 138 C. C. A. 460. It relates to the feet, with a length of about 38 feet longitudinalmethod of erecting and operating a suspen- ly of the canal. The two towers of the cableway sion cable adapted to carrying a traveling stood facing each other, on opposite banks of the crane or the like. Roughly speaking, the canal cut, with their hypothenuse faces toward prior art consisted in supporting such ca- the cut. The cable span across the cut between bles upon rigid and unyielding towers at the tops of the towers was approximately 800 each end, so as to prevent an undue sag-feet. The cables used were 24-inch steel wire ging of the cable under the strain of its load. Claimant's invention consisted in employing a rigid support or abutment at one end of the cable and what is called a "gravity anchor" at the opposite end, consisting of outwardly inclined shears with the cable attached thereto and a weight hung permanently from the shears on the opposite side, which weight, together with the weight of the shears, puts a tension upon the cable varying according to the weight of the structure and counterweight, combined with the degree of inclination of the structure; the operation of the tension device being automatically to take up the slack of the suspended cable when the load approaches the supports, with the result of permitting the load to be moved closer to the supports, with a given exertion of power, than before. There are other advantages not necessary to be specified. The essential feature of the patent is a nonyielding support or anchor at one end of the cable, and a yielding, tilting, or rocking support at the opposite end, consisting of outwardly inclined shears or some equivalent structure held movably at the base, and a counterweight on the outer side. It is to be observed that rigidity of the head tower is a sine qua non, necessary to produce tension of the cable; yielding supports at both ends would be a contradiction of terms, since with such an arrangement there would be no support, and the entire structure would collapse under its own weight. The importance of this will appear. In the construction of the Panama Canal the government installed in the year 1909, and maintained and used continuously thereafter until the expiration of the Brothers patent, one single cableway and six duplex or double cableways which are complained of in this case as infringements. As to the mode of construction, maintenance, and operation of these cableways, the findings of the Court of Claims are as follows: "The single and the duplex cableways were similar in general design and construction except that the towers of the former supported a single cable, while those of the latter supported two cables, parallel to each other, at a distance of 18 feet apart, and each operated independently of the other, the length of the towers longitudinally of the canal cut being of proportionate dimension for the accommodation of the two "To facilitate the shifting or moving of the cableways along the canal cut as the work progressed each tower was mounted upon sets of trucks, similar to the trucks of railway cars, on the front and rear sides of the base of the tower, and the whole structure was mounted upon two standard-gauge railway tracks located on the bank of the canal cut at the proper distance from each other and from the similar tower tracks on the opposite bank of the cut. "The cableways were operated by electrical power from the machinery stations in the head tower of each cableway. "Subsequent to the construction and installation of said cableways they were maintained and operated without change in structural form or method of operation other than that as the height of the walls and other work of the canal increased, beginning about August, 1910, it became necessary, in order to admit of the loads being carried to pass clear of the works and men engaged thereon as the height of the work increased, to take up the slack or decrease the deflection of the cable. The cables were accordingly drawn up for said purpose. This tightenflection increased the effect of the load and ing up of the cables or reduction of their deweight of the cables upon the towers as regards their tendency to yield or tilt. "It was the intent and purpose of the engineer officers of the Canal Commission, by and under whom said cableways were designed, constructed, and operated, that the towers thereof should be rigid and nonyielding to the full extent that rigidity in cable towers was possible; and there was no tilting or yielding of said towers other than such as resulted from a yielding of the roadbed of the tracks supporting them, portions of which roadbed con*sisted of 'fills' of excavated materials upon swampy ground. There is no satisfactory evidence that the towers either yielded or tilted at any time during the period Affirmed. (250 U. S. 94) MACKAY TELEGRAPH & CABLE CO. v. Inasmuch as the findings fully support the of claimant's ownership of said letters patent." judgment of the court below, its judgment [2] Upon the argument here, appellant must be and it is quoted somewhat amply from the evidence taken before the Court of Claims. For the purposes of our review the findings of that court are to be treated like the verdict of a jury, and we are not at liberty to refer to the evidence, any more than to the opinion, for the purpose of eking out, controlling, or modifying their scope. United States v. Smith, 94 U. S. 214, 218, 24 L. Ed. 115; Stone v. United States, 164 U. S. 380, 382, 1. 17 Sup. Ct. 71, 41 L. Ed. 477; District of Columbia v. Barnes, 197 U. S. 146, 150, 25 Sup. Ct. 401, 49 L. Ed. 699; Crocker v. United States, 240 U. S. 74, 78, 36 Sup. Ct. 245, 60 L. Ed. 533; and cases cited. (Submitted, on Motion to Dismiss or Affirm, March 3, 1919. Decided May 19, 1919.) COURTS 394(9)-SUPREME COURT-ERROR No question under the contract clause of the Court cannot revise the decision of the state court on the question of construction of an ordinance as to the poles of a telegraph company on which it imposes a tax. 2. COMMERCE 69-LICENSES-TAX ON TELEGRAPH POLES IN CITY. A reasonable tax on the maintenance of 3. LICENSES ~6(9)—POWER TO TAX-TELEGRAPH POLES IN CITY. A city, so authorized by the state, may impose taxes not merely with respect to special and exclusive occupancy of streets and other public places by poles and other equipment of telegraph company, but by way of compensation for special cost of supervising and regulating the poles and equipment and of issuing the necessary permits; so the fact that a tax is imposed on poles on a railroad right of way, as well as those on streets, cannot be said to be enough to condemn the ordinance, especially where it was found that the telegraph line, as laid along the right of way, crossed a street car line and several turnpikes coming into the city, and that it is necessary that there shall be local governmental supervision of the lines crossing these highways for protection of travelers thereon. [3] We concur in the opinion of the Court of Claims that no infringement of claimant's patent is shown. In the Act of June 25, 1910, under which this suit is brought and under which alone it could be brought, it is expressly provided that there shall be no such suit "based on the use by the Unit-poles and wires erected and maintained by a telegraph company within a city under authored States of any article heretofore owned, ity of ordinance is not an unwarranted burden leased, used by, or in the possession of the on interstate or foreign commerce, or on the United States." In view of this and of the functions of the company as an agency of the fact that the cableways complained of were government, and does not infringe rights contheretofore in the possession of and used by ferred by Act July 24, 1866 (Comp. St. § 10072 the United States, claimant insists that aft- et seq.). er the passage of the act the government materially altered the cableways in such a manner as to make them infringe his patent. The contention is that the cables were tightened up in order to decrease their deflection, and that this tightening, in view of the loads carried by the cables, caused the supporting towers to yield or tilt, and thus to become in essence movable towers like the gravity anchors covered by the claimant's patent. But, as pointed out by the Court of Claims, it is beyond question that, as constructed and used generally, and as intended to be used, the government cableways did not infringe claimant's device. The subsequent tightening of the cables was done in the orderly conduct of the work for the purpose of carrying the loads over and free from the work that was being constructed. So far as this caused a yielding of the tower under the stress of the load, it was an incidental result, affecting or tending to affect the towers on both sides, and It cannot be said that a telegraph company not upon one side to the exclusion of the is subjected to unreasonable discrimination in other. It did not amount to a mechanical taxation of its poles by a city, in contravention equivalent of the claimant's structure; there of the equal protection clause of Fourteenth is no semblance of an outward inclination Amendment, its franchise ordinance imposing of a yielding tower or yielding support, but the same tax applied by a general ordinance to rather a tendency on the part of rigid tow- other companies, though testimony was offered ers to break down or collapse inwardly un- that the other companies were not required to pay tax on poles on railroad right of way; this der an undue stress. And, as we have going no further than to show that the general shown, the rigidity of one support is as es- ordinance had not yet been enforced as it was sential to claimant's structure as is the mov-proposed to enforce the franchise ordinance, and ability of the other. there being no offer to show an arbitrary and 4. CONSTITUTIONAL LAW 230(3)-LICENSES TION IN TAXING POLES OF TELEGRAPH COM- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (39 Sup.Ct.) intentional unfair discrimination, nor likeness in the circumstances of the companies and their lines. of the railway within the limits of the city as they existed at the acceptance of the ordinance, and 35 poles upon an adjacent portion of the right of way which at the accept In Error to the Supreme Court of the State ance of the ordinance was without the city of Arkansas. Action by the City of Little Rock against the Mackay Telegraph & Cable Company. Judgment for plaintiff was affirmed by the Supreme Court of Arkansas (131 Ark. 306, 199 S. W. 90), and defendant brings error. Affirmed. Mr. James W. Mehaffy, of Little Rock, Ark., in support of motion. Mr. J. C. Marshall, of Little Rock, Ark., in opposition to motion. limits but was brought within them a few days thereafter. In the year 1917 the city sued the company in a state court, setting up the above-mentioned ordinance, averring that it was duly accepted by the company and was a contract between the parties, and alleging that pursuant to it the defendant had erected and maintained in the city 205 poles upon which there were due the license taxes or fees at fifty cents per pole for four and a half years, amounting to $461.25. The company by its answer admitted the passage and acceptance Mr. Justice PITNEY delivered the opinion of the ordinance but denied that it was a of the Court. The case was submitted on a motion to dismiss or affirm. The facts are as follows: On March 11, 1912, the city council of Little Rock passed an ordinance granting to the telegraph company the right to construct and maintain telegraph poles, wires, and fixtures and to install underground ducts and manholes along and over certain streets in the city particularly mentioned, including the following: "Also a line of poles and fixtures and the right to string wires or cables thereon, beginning at the intersection of East Second street and Rector avenue and running thence on the west side of Rector avenue to East *Sixth; thence east on the north side of Sixth to the Chicago, Rock Island & Pacific Railway tracks. From this point the pole line will follow on and along the right of way of said railway to the south city limits." Among other things the ordinance provided that the company should pay to the city immediately upon the completion of the line, and annually thereafter, "a license or tax of fifty cents for each pole erected or set up and a license or tax on all conduits constructed to an amount equal to four poles to each block. And said company shall comply with all ordinances hereafter passed in regard to the license or tax on poles, conduits, or wires, either decreasing or increasing the same, that are general and applicable to all telegraph or telephone companies in said city." Other provisions made the location and maintenance of wires, poles, and conduits subject to the approval of the city officials; required the poles to be kept painted, and the wires, poles, conduits, and manholes to be maintained in a first-class condition and so as not to endanger life or limb; permitted the city to use the upper cross-arm of the poles for its fire alarm and police telegraph or telephone wires; and required written acceptance by the company before the ordinance should take effect. The company duly filed its written acceptance, and thereafter constructed its line, placing 66 poles upon city streets, 104 poles upon the right of way contract; alleged that the provision as to license fees did not include the poles placed upon the right of way of the railway company, especially not those that were without the limits of the city at the time of the acceptance of the ordinance; that fifty cents per pole per year was unreasonable and excessive and sought to be imposed not for inspection and regulation of the poles but for revenue purposes only; that said license fee or tax deprived defendant of its property without due process of law and denied to it the equal protection of the laws in violation of the Fourteenth Amendment; that defendant had accepted the restrictions and obligations of the Act of Congress approved July 24, 1866 (chapter 230, 14 Stat. 221; Rev. Stat. § 5263 et seq. [Comp. St. § 10072 et seq.]); that its poles and wires were in use for the transmission of messages for the United States and various departments of the government; and further that defendant was engaged principally in the transmission of telegraphic messages between points in Arkansas and points in other states and in foreign countries, and that the imposition of a fee or tax upon its poles was a burden upon and illegal interference with interstate and foreign commerce and the regulatory power of Congress over the same. At the trial the company offered to pay the license tax upon the 66 poles that were placed upon the city streets, but disputed liability for those placed upon the railroad right of way. It proved acceptance of the act of Congress of 1866, showed that the corporate limits had been extended after acceptance of the ordinance in such manner as to include 35 additional poles along the right of way, showed that the line on the right of way ran through a thinly populated part of the city as compared with the *streets covered by the franchise, being crossed, however, by two important streets and by two turnpikes that lead into the city, and offered to prove that two other telegraph companies maintaining poles and wires in the city were required to pay the tax only upon poles maintained upon the streets and not upon those maintained on | 425, 23 Sup. Ct. 204, 47 L. Ed. 240; Atlantic, railroad rights of way. General ordinances etc., Telegraph Co. v. Philadelphia, 190 U. S. of the city were introduced in evidence, one 160, 164, 23 Sup. Ct. 817, 47 L. Ed. 995; Westof them antedating the franchise ordinance ern Union Telegraph Co. v. Richmond, 224 U. and providing as follows: S. 160, 32 Sup. Ct. 449, 56 L. Ed. 710; Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 39 Sup. Ct. 265, 63 L. Ed. 590. "Each telegraph, telephone, electric light or power company shall pay annually a sum equal to fifty cents for each pole used by them whether such poles are leased, rented, or owned by them." The trial court overruled the contentions of defendant and rendered a judgment against it for the entire amount claimed. This was affirmed by the Supreme Court of the state (131 Ark. 306, 199 S. W. 90), and the case is brought here upon the contention that the taxing provision of the franchise ordinance, as construed and applied, has the effect of depriving the defendant of rights secured to it by the Constitution and laws of the United States. We are unable to see ground for dismissal of the writ of error, and will pass at once to the merits. Notwithstanding that some of the provisions of the ordinance are contractual in form and by its own terms it was to take effect only after written acceptance by the company and such acceptance was in fact formally given, the Supreme Court of the state, as we read its opinion, dealt with the pole fees not as an agreed compensation for the franchise but as a license tax. Conse quently we will-indeed must, for present purposes-so regard it. [1] Plaintiff in error contends that the court erred in construing the ordinance as imposing the tax with respect to the poles standing upon the railroad right of way, and especially as to the 35 poles which at the time of acceptance of the ordinance were without the limits of the city. But as no question is raised here under the contract clause of the Constitution (article 1, § 10, cl. 1), we are not at liberty to revise the decision of the state court upon the question of construction, and can only determine whether as construed and applied the ordinance de prives plaintiff in error of rights secured by other provisions of the Constitution and laws of the United States. [3] These cases establish that a city (supposing, of course, it acts under the authority of the state) may impose such taxes not merely with respect to the special and exclusive occupancy of streets and other public places by poles and other equipment, but by way of compensation for the special cost of supervising and regulating the poles, wifes and other fixtures and of issuing the necessary permits. Hence, in the present case, we cannot hold that the fact that a tax is imposed upon the poles that stand upon the railway right of way, as well as on those that stand upon the streets, is sufficient to condemn the ordinance, especially in view of the finding of the Supreme Court of Arkansas that the telegraph line as laid along the right of way crosses a street car line and several turnpikes coming into the city, and that it is necessary there shall be local governmental supervision of the lines crossing these highways for the protection of travelers upon them. There is no support in the record for the contention that a tax of fifty cents per pole per year is unreasonable in amount, even though it be made to apply to poles standing on private property or upon a railroad right of way as well as to poles erected in the streets. [4] Nor is there ground for holding that plaintiff in error is subjected to unreasonable discrimination, in contravention of the equal protection clause of the Fourteenth Amendment. The case shows that its franchise ordinance imposes the same and no greater tax than that which is applied by a general ordinance to other companies maintaining poles in the city. The offer of testimony to prove that the two other companies were not in fact required to pay the tax upon so many of their poles as stood upon railroad rights of way went no further than to show that the general ordinance had not been enforced against them in the same manner that it was proposed to enforce the franchise or[2] That a reasonable tax upon the main-dinance against plaintiff in error. There was tenance of poles and wires erected and main- no offer to show an arbitrary and intentionaltained by a telegraph company within the ly unfair discrimination in the administralimits of a city pursuant to authority granted tion of the ordinance as in Yick Wo v. Hopby its ordinances is not an unwarranted bur-kins, 118 U. S. 356, 374, 6 Sup. Ct. 1064, 30 den upon interstate or foreign commerce or L. Ed. 220. Peradventure the present action upon the functions of the company as an agency of the government, and does not infringe rights conferred by the Act of Congress, is so thoroughly settled by previous decisions of this court that no further discussion is called for. St. Louis v. Western Union Telegraph Co., 148 U. S. 92, 100, 13 Sup. Ct. 485, 37 L. Ed. 380; Western Union Telegraph Co. v. New Hope, 187 U. S. 419, was a test case to determine whether the license fees were applicable to poles standing elsewhere than on the streets, with the intent, in case of an affirmative answer, to enforce the general ordinance against the other companies in the same sense. Nor was there any offer to show that the circumstances of the several companies and their telegraph lines were so much alike as to render 66+ (39 Sup.Ct.) -WAIVER. any discrimination in the application of the 15. INSURANCE 372-WarranTY IN POLICY pole tax equivalent to a denial of the equal protection of the laws. None of the contentions of plaintiff in error being well founded, the judgment is af firmed. (250 U. S. 2) AMERICAN FIRE INS. CO. v. KING LUM- Warranty of insurance policy for concurrent insurance in a certain company can be subsequently waived. 6. COURTS396(7) FEDERAL QUESTIONQUESTIONS PASSED ON BY STATE COURT. Motion to dismiss error to state court, on the ground that the federal questions raised were not passed on by courts of state, but that they rested their decision on a certain fact, denied; that being a disputed proposition, and the motion so far involving the merits that jus (Argued April 22, 1919. Decided May 19, 1919.) tice will better be served by going into them. No. 308. 1. CONSTITUTIONAL LAW 205(6), 240(2), 296(1) COURTS 8 FULL FAITH AND CREDIT-PRIVILEGES AND IMMUNITIES-DUE PROCESS EQUAL PROTECTION. There is no foundation for contention that full faith was not given to a law of another state, or that there was a violation of the privileges and immunities clause, or the due process and equal protection clauses, by Gen. St. Fla. 1906, §§ 2765, 2777, making the person who solicits insurance and procures applications agent of the party issuing the policy, notwithstanding anything in the policy to the contrary, and the person who receives or receipts for money from insured to be transmitted to in surer agent of the latter, where when such statute was in existence a company of another state, having its permission to underwrite policies on property outside of the state, exercised that right in Florida. In Error to the Supreme Court of the State of Florida. Action by the King Lumber & Manufacturing Company against the American Fire Insurance Company. Judgment for plaintiff was affirmed by the Supreme Court of Florida (77 South. 168), and defendant brings error. Affirmed. Messrs. Gustavus Remak, Jr., of Philadelphia, Pa., and James F. Glen, of Tampa, Fla., for plaintiff in error. Mr. Benjamin Micou, of Washington, D. C., for defendant in error. Mr. Justice McKENNA delivered the opin ion of the Court. Action on two fire insurance policies issued by plaintiff in error, to which we shall refer as the insurance company, to defendant in error, to which we shall refer as the lumber company. Each policy was for the sum of $2,500. There was total insurance on the property described in the policies of $45,750, and it was provided that the insurance company should only be liable for its pro rata share of any loss caused by fire under the provisions of the policies. The loss to the lumber company was $21,028.17 and the insurance company's pro rata share was on each policy $1,149.08. Gen. St. Fla. 1906, §§ 2765, 2777, declaring There is not much dispute about the a person doing certain things relative to insur- facts. There is considerable dispute about ance agent of the insurer, does not attempt to the inferences from them, and facts and inextend the authority of the state beyond its ferences were presented in a maze of pleadlimits, but merely regulates the insurance com-ings which terminated in a demurrer to a pany when it comes to the state to do business with the citizens thereof and their property. 4. INSURANCE 378(3)—WAIVER POWER OF AGENT. The nonapplicability of Gen. St. Fla. 1906, §§ 2765, 2777, making insurance brokers insurer's agents, to cases where the statute is invoked to make such an agent's knowledge of insured's fraud and misrepresentation the knowledge of the company, does not affect the applicability of the statute to give full authority to such agents to waive warranty of concurrent insurance in a certain other company, where they were not derelict, but substituted policies in equally responsible companies for such concurrent insurance, and insured was an innocent party. rejoinder by the insurance company to replications of the lumber company to the pleas of the insurance company to the declaration in the case. The court, in passing upon the demurrer, being of the view that section 2765 of the General Statutes of Florida (infra) was applicable, rendered judgment accordingly for the lumber company on the policies for the sum of $2,298.16, with interest at 8 per cent. from February 16, 1913, and the sum of $300 as a reasonable attorney's fee. The Supreme Court of the state affirmed the judgment. The controversy is not especially complicated of itself, but it is made somewhat so For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |