"Fifth Prayer.

"That the agreement of January, 1892, between Henry Campbell and the Campbell Barrel Company, offered in evidence by the defendant, is no defense to this action, if the court shall find that by the true construction of said agreement the invention and device described in the contract set out in the declaration is not embraced within said agreement. (Granted.)"

And the defendant offered the following two prayers:

"Defendant's First Prayer.

"The defendant asks the court to rule as matter of law that upon the pleadings of the case the burden is upon the plaintiff to prove the delivery of the sealed instrument sued on, and if the court, sitting as a jury, finds that the paper sued on never was delivered, the verdict must be for the defendant. (Granted.)

"Defendant's Second Prayer.

"If the court, sitting as a jury, shall find that when the paper sued on was presented [43] by the plaintiff to the defendant *for the latter's signature, with the request that he would sign it, the defendant declined so to do, as the terms of such papers did not correspond with any agreement made or talked of between the plaintiff and defendant, and that thereupon it was agreed between them that the papers in duplicate should be signed by the defendant, and both kept in his possession, and should not be of any force, and should belong to the defendant until he chose to put them in force, and that in pursuance of this agreement they were then signed by the defendant, and always afterwards kept in his possession until produced at the trial of this cause, on notice, and that at no time after the signing of said papers did the defendant ever exercise his option of putting into force, but, on the contrary, subsequently thereto, exercised his option by declining to recognize them as in force, then the verdict shall be for the defendant. (Granted.)"

The trial judge rendered a general verdict for the defendant, on which judgment was entered for $35,091.65, with interest and costs.

An appeal having been taken to the court of appeals of Maryland by the plaintiff Harrison, the judgment of the court below was affirmed by the said court of appeals on the 17th of June, 1896, for $39,091.65, with interest from the 13th of December, 1894, until paid, and costs.

On September 21, 1896, a writ of error to review this judgment was issued to the court of appeals of Maryland.

There are nine assignments of error.

171 U. S. U. S., BOOK 43.

They

"1. It was error to decide that under the laws of the United States the assignments from Henry Campbell to Walter H. Harrison, dated the 11th day of September, a. d. 1894, and the 26th day of November, 1894, respectively, purporting to convey to the said Harrison the 'entire right, title, and interest in and to the application for patent-serial number, 522,266-and the patent right contained therein and covered thereby,' operated to convey to the plaintiff Harrison merely the equitable title in and to said invention and the patent rights covered by said application.

"2. It was error to decide that the said assignments were not drawn as the laws re- [44] quired and hence did not convey the legal title to the invention in question."

The opinion of the supreme court of Maryland is quite long, necessarily so, as it passes upon all the points which were raised by plaintiffs. The parts of it which concern the case are as follows:

"We think there can be no doubt that the defendant's two prayers were properly granted. By the first the court declared as matter of law that upon the pleadings the burden was upon the plaintiff to prove the delivery of the sealed instrument sued on, and that if the court, sitting as a jury, should find that said paper never was delivered, the verdict must be for the defendant. The second prayer recites the evidence more at length, but asserts the same proposition of law which appears to be well settled in this state. Edelin v. Sanders, 8 Md. 129. We discover no inconsistency between the two prayers. The plaintiff specially excepted to the second on the ground that there was no evidence in the cause legally sufficient to prove the facts therein set forth. It is clear, however, that the testimony of the witnesses Morton and Coale support the facts set forth in this prayer, and we have already held it to be competent and admissible under the issue made by the plea of non est factum.

"We will now consider the prayers of the plaintiff. He offered five, the second having been conceded and the fifth granted.

"The controlling proposition in this part of the case is that contended for by the plaintiff in his first, third, and fourth prayers, namely, that there is no legally sufficient evidence in the case to show that he had any knowledge or notice of the agreement between the inventor, Campbell, and the Campbell Barrel Company.

"The correctness of this contention of the plaintiff depends first, upon the legal effect of the assignments from Campbell to the plaintiff, and, secondly, upon the effect of the contract of Campbell with the Campbell Barrel Company-that is to say, whether said company thereby assigned to said company an equitable title to his invention prior in date to the title he claims to have assigned to [45] the defendant, which latter title the plaintiff claims to be an absolute legal title, and the defendant's contention, on the contrary, is

65

that it is a mere equitable title, subsequent in date and therefore inferior to the title of the barrel company. The plaintiff claims title through two assignments from Campbell, each being for one-half interest in a certain application filed in the Patent Office of the United States, at Washington, D. C., which application is for letters patent covering the invention of a machine for forming and making barrels and kegs.

"It will befound upon an examination of these instruments that they do not contain a request to the Commissioner of Patents to issue letters patent to the plaintiff. Notwithstanding they were recorded in the Patent Office, letters patent were issued in the name of Henry Campbell, the inventor, and the defendant contends that the legal effect of such an assignment, in which the inventor fails to embody a request to the Commissioner of Patents to issue letters to the assignee, is to convey to such assignee only an equitable title. It is conceded that by one of the rules of the Patent Office the Commissioner will not and cannot issue the letters patent to an assignee, unless specially requested so to do by the terms of the assignment. One of the witnesses refers to this rule in his testimony. The patent having been issued to Campbell instead of to the defendant, the witness thus explains: I ascertained that the probable reason why it (the patent) had not been issued to Mr. Morton was this: The original assignment from Mr. Campbell to Mr. Harrison did not contain the request which the rules of the Patent Office required in order that the patent should be issued in the name of the assignee.' Rule 26, Rules of Practice in the United States Patent Office, page 9. Revised April 1, 1892."

After considering authorities, the opinion decides that

"If, therefore, the Campbell Barrel Company acquired an equitable title to the patent, as it undoubtedly did, under its contract with the inventor, before the assignment of the equity to the defendant, the latter took subject to the equitable title in the said company, and the first, third and fourth prayers [46] of the *plaintiff were properly refused, for they all asked the court to say that there was no legally sufficient evidence to show that the plaintiff had knowledge or notice of the agreement between the plaintiff and the barrel company, but, as we have seen, knowledge and notice will be imputed to him, as Ch. J. Gibson said in Chew v. Barnet, supra [11 Serg. & R. 389], 'whether he had notice or not,' holding as he did only an equitable title."

Mr. Justice McKenna delivered the opinion of the court:

It is manifest that the pleadings of the parties presented for decision other questions besides Federal ones, and which could be, independent of the Federal ones, determinative of the controversy. Assuming, therefore, that a Federal question was involved, it does not appear but that the decision was given on the contention of the defendant that the

agreement never became operative for want of delivery. This contention was clearly presented by defendant's prayers, and they contained the only rulings urged upon the court in that way, that is, in the nature of instructions. They were given and the verdict was generally for the defendant. It is therefore natural to presume that the verdict was rendered on account of them and on the ground urged by them. The ruling of the court granting them was sustained by the supreme court of the state. It affirmed the ruling as correct in law and as supported by competent testimony. The supreme court, it is true, passed on other grounds, passed on the one which it is claimed involved a Federal ques- [47] tion, and decided it adversely to plaintiff. But the rule in such cases has been repeatedly declared by this court. It is not necessary to review the decisions. That has been done by Mr. Justice Shiras in Eustis v. Bolles, 150 U. S. 361 [37:1111]. It is sufficient to announce the rule pronounced in the case:

"It is settled law that, to give this court jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, and that it was actually decided adversely to the party claiming a right under the Federal laws or Constitution, or that the judgment as rendered could not have been given without deciding it. Murdock v Memphis, 87 U. S. 20 Wall. 590 [22:429]; Cook County v.

Calumet & Chicago Canal & D. Co. 138 U. S.
635 [34:1110]. It is likewise settled law

that, where the record discloses that if a
question has been raised and decided adverse-
ly to a party claiming the benefit of a pro-
vision of the Constitution or laws of the
United States, another question, not Federal,
has been also raised, and decided against
such party, and the decision of the latter
question is sufficient, notwithstanding the
Federal question, to sustain the judgment,
this court will not review the judgment."
See also Wade v. Lawder, 165 U. S. 624
[41:851].
The writ of error must therefore be dis-
missed.

Messrs. William Pinkney Whyte, Frederic D. McKenney, and Samuel F. Phillips for plaintiff in error.

Messrs. Bernard Carter and Edgar H. Gans for defendant in error.

[48] DETROIT CITIZENS' STREET RAILWAY

COMPANY, Plff. in Err.,

0.

DETROIT RAILWAY and the City of De

troit.

(See S. C. Reporter's ed. 48-55.) Power of common council of Detroit-privilege to build railroads on streets-power to grant easements in public streets.

1. The common council of Detroit had no inherent power to confer the exclusive privi

L. R. A. 33.

As to acquiring right of way; authority to use strects, see note to Adams v. Chicago, B. & N. R. Co. (Minn.) 1 L. R. A. 493.

As to right of street railways to use streets, -see note to People, Third Ave. R. Co., v. New ton (N. Y.) 3 L. R. A. 174.

Street railroads; rights of, in the street; grants to, by municipal corporations; power of such corporations to impose restraints or conditions upon street railways; consents by abutting owners forfeiture of rights.

An irrepealable contract for the use of a street by a street-railway company is not in excess of the powers of a municipal corporation which Is invested with full power to regulate and control the use of streets. Baltimore Trust & G. Co. v. Baltimore, 64 Fed. Rep. 153.

A city of the third class is not prohibited from granting by special ordinance to an electric railway company the right to construct its tracks in the city streets, by Pa. act June 14, 1887, § 32, prohibiting cities of the second class from so doing. McHale v. Easton & B. Transit Co. 169 Pa. 416.

A consent given by the supervisor of a town ship to a street-railway company to construct a line on its highways, upon the consideration that the latter employ him and his son for life at an agreed price per day, does not bind the township, and is void. Lehigh Coal & Nav. Co. v. Inter-County Street R. Co. 167 Pa. 75.

A mere license, and not a franchise, is given to a street-railway company by an ordinance granting the consent of a city to the use of streets for its tracks. Belleville v. Citizens' Horse R. Co. 152 III. 171, 26 L. R. A. 681.

A provision in a city charter, making it un lawful to grant the right to construct a street railroad except to one who will agree to carry passengers thereon at the lowest rate of fare, is superseded by N. Y. Laws 1890, chap. 565, giving every railroad corporation the power to construct its road upon any highway which Its route shall touch, subject to the limitations of such chapter. Adamson v. Nassau Electric R. Co. 89 Hun, 261.

The consent of property holders on a designated street is not necessary to enable a street railway company to make use of the tracks of another company already in operation, under N. Y. Const. art. 3, § 18, providing that no street railway can be constructed or operated without the consent of such owners. Îngersoll v. Nassau Electric R. Co. 89 Hun, 213.

A city council which is authorized to regulate the use of streets and to permit or prohibit any street railroad in any street, but which has "no power to grant" the right to lay down any railroad track in any street except on a specified petition, cannot grant the use of a street for railroad purposes except on the pe tition provided for. North Chicago Street R. Co. v. Cheetham, 58 111. App. 318.

The right of a city to grant or withhold its

not property of the city, so as to constitute a grant thereof for a less price to one party than another is ready to pay a waste of property, within a statute authorizing an action to prevent waste of city property. Adamson v. Nassau Electric R. Co. 89 Hun, 261.

The question of the consent of the municipal authorities to the construction of a street railroad does not necessarily arise on a motion to confirm the appointment of commissioners under N. Y. Laws 1890, chap. 565, § 94, making such appointment depend upon the failure to secure the consent of the property owners. Re Auburn City R. Co. 88 Hun, 603.

The consent of township supervisors to the construction of a street railway upon an ordinary township road is sufficient where such consent is given at a meeting held for the purpose after four meetings to deliberate upon and discuss what their action should be, although no minutes of their proceedings were kept by them. Scranton & P. Traction Co. v. Delaware & H. Canal Co. 1 Pa. Super. Ct. 409.

The consent of the township committee is necessary to legalize the construction of street railroads in any township, under N. J. P. L. 1893, p. 144, prohibiting the construction of any street railroad on the street of any "municipalIty" without the consent of the "governing body" having the control of the streets in such municipality. West Jersey Traction Co. V. Camden Horse R. Co. 53 N. J. Eq. 163.

A city in consenting to street-railway franchises under Milliken & Vertrees (Tenn.) Code, § 1921, cannot limit such consent to a period less than the duration of the franchise granted by the state. Africa v. Knoxville, 70 Fed. Rep. 729.

In the absence of a statute there is no implied restriction springing from public policy upon the power of a city to grant a street easement to a railroad or street-car company having the requisite franchises from the state unlimited as to time. Louisville Trust Co. v. Cincinnati, 47 U. S. App. 36, 76 Fed. Rep. 296, 22 C. С. А. 334.

A resolution by the dock department of a city granting a revocable license to a street-railroad company to construct its road over a given street confers no authority for its construction, where such department has no power to grant any franchises. Central Crosstown R. Co. v. Metropolitan Street R. Co. 16 App. Div. 229.

City authorities have no right to grant street. railway franchises except in so far as they may be authorized by the legislature, and then only in the manner and under the conditions prescribed by the statute. Beekman v. Third Ave. R. Co. 153 N. Y. 144.

Validity of conditions imposed by city or highway authorities in granting consent to a street railways to use the streets. People, West Side Street R. Co. v. Barnard, 110 N. Y. 548; Abraham v. Meyers. 29 Abb. N. C. 384: Cincinnati v. Mt. Auburn Cable R. Co. 28 Ohio L. J. 276; Allegheny v. Millville, E. & S. Street R. Co. 159 Pa. 411; Cincinnati v. Cincinnati Street R. Co. 31 Ohio L. J. 308; Plymouth Twp. v. Chestnut Hill & N. R. Co. 168 Pa. 181.

The legislature can, without consulting the municipality, grant the right to a street-railway company to lay its tracks on the streets of the city. Central Railway & Electric Co.'s Appeal, 67 Conn. 197.

A city can impose no terms on the construction of a street railway upon its streets, where 8. The power to grant easements in the public streets, in perpetuity and in monopoly, must be conferred in express words, or, if inferred from other powers, it is not enough that the authority is convenient to them, but it must be indispensable to them.

[No. 236.]

court affirming the decree of the Circuit Court of the County of Wayne, in said state, dismissing a suit in equity brought by the Detroit Citizens' Street Railway Company against the city of Detroit et al. to enjoin said city et al. from acting under an ordinance granting to others the right to construct street railways upon certain streets in

1898.

IN ERROR to the Supreme Court of the State of Michigan to review a decree of that

the city's consent is not made necessary for the construction of the road. Philadelphia v. Empire Pass. R. Co. 177 Pa. 382.

A street-railway company has the right to diverge from the highway and to construct its railroad on property secured for that purpose In order to avoid a grade crossing at the intersection of a railroad. Pennsylvania R. Co. v. Glenwood & D. Electric Street R. Co. 184 Pa.

227.

The provision of N. Y. Const. art. 3, § 18, requiring the consent of the abutting owners and local authorities, or the substituted consent of the court, to the grant of street-railroad franchises, does not authorize the legislature to confer upon local authorities power to consent to such a grant if otherwise illegal, or prevent It from repealing such power by subsequent legislation. Norris v. Wurster, 23 App. Div. 124.

The consent of all the local authorities through whose districts the established route of an electric passenger railway passes must be obtained, in Pennsylvania, before any part of the road can be built. Reading Co. v. Schuylkill Valley Traction Co. 14 Mont. Co. L. Rep. 10.

A permit granted by the park commissioner of the city of Brooklyn, under N. Y. Laws 1888, chap. 583, tit. 16, § 2, subd. 5, which designates the location for a railway switch, will not authorize its construction in the absence of the consent of the common council, since the provisions of N. Y. Laws 1896, chap. 825, do not Impliedly repeal the ordinance making such consent necessary. Irvine v. Atlantic Ave. R. Co. 23 App. Div. 112.

The consents of abutting owners to the construction of a street railway, contemplated by the New York Constitution and the railroad act, cannot be acquired by an individual and assigned by him to a corporation thereafter organized to construct the road, but they must be given in the first instance to a corporation anthorized to construct the road. Geneva & W. R. Co. v. New York C. & H. R. R. Co. 24 App. Div. 335.

A city may require the payment of license fees as a condition of granting a franchise to a street-railroad company, and such company on accepting the franchise becomes liable to pay the fee, under the provision of the Illinois statute. Byrne v. Chicago General R. Co. 169 I11. 75.

A corporation Incorporated under the Pennsylvania general railroad laws as a steam railroad company cannot acquire the rights and franchises of a street passenger railroad company, without reincorporation under the street railroad laws. Potts v. Quaker City Elev. R. Co. 161 Pa. 396.

Statement by Mr. Justice McKenna:

The plaintiff in error is a street railway company of the state of Michigan, organized

tion in giving the consent required by Pa. Const. art. 17. § 9, to the construction of a street railway within its limits, that a fixed fare shall be charged for passengers and a certain percentage of the dividends be paid to the city.are valid. Allegheny v. Millville, E. & S. Street R. Co. 159 Pa. 411.

The "public convenience or necessity" contemplated by Conn. Pub. Acts 1893, chap. 169, $ 8, providing that no street railroad shall be built or extended from one town to another in the public highways so as to parallel any other street or steam railway, unless the superior court or a judge thereof shall have found that public convenience or necessity requires its construction, -means such a condition existing at the time of the application in respect to the applying railroad, the mode of public travel, the manner in which those needs are to be supplied, and the probable effect of the proposed road upon the whole question of adequately supplying those needs, as well as in respect to the road proposed to be paralleled, that in the judgment of the trior will justify the interference with the private right of the. latter road. Re Shelton Street R. Co. 69 Conn.

626.

An obligation to maintain a street rallway is not imposed by the grant of a mere privilege to construct and maintain it. San Antonio Street R. Co. v. State, Elmendorf, 90 Tex. 520, 35 L. R. A. 662.

Com., Atty. Gen., v. Northeastern Elev. R. Co. 161 Pa. 409.

That a street-railway company under its general corporate powers may have the authority to receive an estate in the streets beyond its own life does not necessarily empower the city to grant such an estate. Detroit v. Detroit City R. Co. 56 Fed. Rep. 867.

Conditions imposed by a municipa1 corpora