sessed as smoked fish, or as fish in half barrels, according to the manner of packing. It may be added that in the course of the numerous protests as te the rate of duty on fish which have been passed on by the courts and by the board it has not been before suggested that the provision for salted or pickled herring would cover smoked herring. The protests are overruled on all grounds, and the decision of the collector affirmed in each case. Comstock & Washburn (Albert Comstock, of counsel), for importers. D. Frank Lloyd, Asst. U. S. Atty. PLATT, District Judge. Decision of the Board of General Appraisers affirmed. J. M. CEBALLOS & CO. v. UNITED STATES. No. 3,607. CUSTOMS DUTIES-MEASUREMENT-OLIVES IN CASKS "GALLON." In assessing the duty of 15 cents per gallon provided in Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 264, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], on olives in casks, the assessment should be based on measurement by the wine gallon, and not the dry gallon. On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings were brought by J. M. Ceballos & Co., and relate to a decision of the Board of General Appraisers which overruled their protests against the assessment of duty by the collector of customs at the port of New York. Said decision is reported as G. A. 5,701, T. D. 25,359, and reads as follows: Waite, General Appraiser. In these cases the collector has assessed duty upon olives in brine, contained in casks, at 15 cents per gallon, under paragraph 264, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], the number of dutiable gallons having been ascertained upon the basis of the wine gallon, of 231 cubic inches capacity. The classification is not questioned, but the protestants contend that the use of the wine gallon in measurement is an error, and that the olives should be gauged by the dry gallon, of 268.8 cubic inches capacity. With this contention we are unable to agree. The customs gallon of the United States is the wine gallon, of 231 cubic inches, which is uniformly referred to by the authorities as the standard gallon of this country. Nichols v. Beard (C. C.) 15 Fed. 435. See, also, 16 Ops. Attys. Gen. 359, and "gallon," Standard and Century Dictionaries. The dry or corn gallon is an old English unit of measurement, which we should judge has fallen into practical disuse. "Gallon," Century Dictionary. We are not aware that it has any common employment in the commerce of this country. The protestants, in any event, have offered no proof of its general commercial use, which would be incumbent upon them, since that fact is hardly within common knowledge. But were the use of the corn gallon as a unit of dry measurement notorious, it would still be open to serious doubt whether a commodity like olives in brine should be measured by it. It appears to be the practice to measure even dried olives by the liquid gallon. In its decision on the protest of Tai Hing (Abstract 35, T. D. 24,919), the board reversed the action of the collector at Honolulu in assessing dried olives at 2 cents per pound, as "edible fruits dried," under paragraph 262 of the present tariff (30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]), sustaining a claim that they were dutiable as "olives" by the gallon, under said paragraph 264. The board said in part: "The well-established practice at this port [New York] is to re. turn dried olives under the specific provision for olives in paragraph 264, and 139 F.-45 * ** assess duty upon them at 15 cents per gallon; the unit of measure being the wine gallon, of 231 cubic inches, apparently the only gallon in common use in this country. Nichols v. Beard (C. C.) 15 Fed. 435. We are without any proof of trade usage or other evidence which would enable us to say that there is any theoretical or practical objection to measuring dry substances such as these by the liquid gallon, so as to make the construction adopted by the customs officers unjust, unreasonable, or absurd. ** The construction pla ced upon a law by the officers who administer it frequently influences the construction given it by the courts. Robertson v. Downing, 127 U. S. 607, 8 Sup. Ct. 1328, 32 L. Ed. 269." For many years prior to 1897, olives, when dutiable, had been assessed at ad valorem rates. In that year an effort was successfully made to have a specific duty by the gallon imposed. Tariff Hearings, vol. 1, pp. 988, 993, 997, 998. We quote below from one of the communications received by the committee on ways and means, which we think makes it sufficiently piain that the interests concerned expected that olives in brine would be measured according to the methods in vogue in United States customhouses: "The present rate of duty (20 per cent. ad valorem) on olives shipped in brine in bulk is satisfactory, except that we earnestly request that the duty be changed from an ad valorem duty to a specific duty, as under an ad valorem duty there is great opportunity for undervaluation. * * * We would therefore recommend that the duty be made 5 cents for each American gallon, and that the mode of ascertaining the number of gallons in each package be as follows: Package to be laid on its side, bung up, capaeity being taken by the standard United States system of gauging, and then the outage rod inserted through the bunghole until it comes in contact with the solid fruit, and after taking the outage from the gauged capacity of the package, the residue shall be the actual number of gallons on which duty shall be paid. Tariff Hearings, pp. 993, 994." We are not concerned in this case with the above suggestion regarding allowance for outage, which probably aimed at the exclusion from assessment of the supernatant brine. See T. D. 23,742. The portion of the cask to be made dutiable, however, was to be assessed upon the basis of the "American gallon," which, in our judgment, can have reference only to the wine gallon. Moreover, it was to be measured by the "standard United States system of gauging," in which, according to the authorities cited above, no other gallon has been recognized. For the reasons given, we think the protests should be overruled, and the collector's decision affirmed, which is accordingly ordered. Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for the importers. Henry A. Wise, Asst. U. S. Atty. PLATT, District Judge. Decision of the Board of General Appraisers affirmed. UNITED STATES v. GOLDBERG. (Circuit Court, S. D. New York. December 21, 1904.) No. 3,729. CUSTOMS DUTIES-CLASSIFICATION-CAMEOS-IMITATION PRECIOUS STONES. Held, that paste cameos, in imitation of shell cameos, which imitate certain descriptions of precious stones, are dutiable as imitation precious stones under paragraph 435, Schedule N, § 1, Tariff Act July 24, 1897, c. 11, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676]. On Application for Review of a Decision of the Board of United States General Appraisers. The proceedings in this case were brought by the United States to secure a review of a decision of the Board of General Appraisers (G. A. 5,825, T. D. 25,713), which had sustained a protest of Mor ris Goldberg against the assessment of duty by the collector of customs at the port of New York. The opinion filed by the board is as follows: Sharretts, General Appraiser. The merchandise in question consists of cameos made of paste, which the appraiser reports to be imitations of shell cameos. Duty was assessed thereon at 45 per cent. ad valorem under the provision of paragraph 112, Tariff Act July 24, 1897, Schedule B, § 1, c. 11, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1635], for manufactures of paste. The alternative contention of the importer is that the merchandise is imitative of precious stones, and as such is dutiable at 20 per cent. ad valorem under paragraph 435, Schedule N, § 1, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676]. The board held in G. A. 5,763, T. D. 25,512, that shell was not a precious stone, hence shell cameos were not dutiable as precious stones; but in this decision the conclusion was reached that the shell cameos in question imitated certain descriptions of precious stones. In the present case we find the articles in question are imitations of precious stones, composed of paste, not exceeding one inch in dimensions, not engraved, painted, or otherwise ornamented or decorated. The claim in the protest that the merchandise is dutiable under paragraph 435 is sustained, and the collector's decision is reversed. Charles Duane Baker, Asst. U. S. Atty. PLATT, District Judge. Decision of the Board of General Appraisers affirmed. CITY OF MEMPHIS v. POSTAL TELEGRAPH CABLE CO. (Circuit Court, W. D. Tennessee. August 1, 1905.) 1. MUNICIPAL CORPORATIONS-POWERS OVER STREETS-CITY OF MEMPHIS. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 167, 175.] 2. TELEGRAPH COMPANIES-CHARGE FOR USING STREETS. The Legislature of Tennessee having by Acts 1885, p. 120, c. 66, granted to telegraph companies the right to construct, operate, and maintain their lines upon the public highways and streets of the towns and cities of the state, in consideration of the immediate dispatch of official messages as therein required, the city of Memphis has no power under its charter to require a company which has constructed its lines in the streets of the city under such statute to pay a tax or rental on its poles for the use of such streets, and an ordinance imposing such tax or rental is in violation of the statute and void. [Ed. Note.-Rights of telegraph and telephone companies to use streets, see note to Southern Bell Telephone & Telegraph Co. v. City of Richmond, 44 C. C. A. 155.] In Equity. On demurrer to bill. H. F. Walsh, City Atty. of Memphis (J. P. Holt, of counsel), for complainant. J. W. Buchanan, Felder & Rountree, and Metcalf, Minor & Metcalf, for defendant. MCCALL, District Judge. On June 5, 1902, the complainant, the city of Memphis, filed its original bill in the chancery court of Shelby county, at Memphis, Tenn., against the defendant, the Postal Telegraph Cable Company, seeking to recover a judgment against the defendant company in the sum of $1,772 on account of rents alleged to be due and owing by the defendant for the occupancy of the streets of the complainant city by the telegraph poles of the defendant, or, in case such decree would not be proper, complainant asks that the rights of the defendant in and to said streets, etc., of the city of Memphis be declared forfeited, and its occupancy thereof terminated. The case was removed from the state jurisdiction to this court by the defendant on petition filed July 7, 1902, and the defendant answered the bill. Subsequently, by leave of the court, the defendant withdrew its answer, and on February 16, 1905, interposed its demurrer to the bill, and the case is now heard upon the demurrer. There are five causes of demurrer assigned, but for the purpose of this hearing they may properly be grouped under three heads: First, that the complainant had no power or authority to rent its streets to, or collect pole rental of, the defendant; second, that the charge sought to be collected as a rental is a tax, and the city ordinance is in violation of the Constitutions of Tennessee and of the United States; third, that the rental alleged to be due complainant. accruing between December 20, 1894, and June 4, 1896, is barred by the statute of limitations. I shall consider the first, second, and third grounds of demurrer together. As above indicated, they present this one question: Has the complainant, the city of Memphis, authority to rent its streets. to, or collect pole rental of, the defendant company? To put it differently, has the city of Memphis the right to charge the defendant company for the use of its streets for the erection and maintenance of its telegraph poles? The city, assuming that it had the right, on December 20, 1894, by its legislative council, adopted an ordinance which reads as follows: "That any telegraph or postal telegraph company, or person, occupying the streets, alleys or public grounds of, or within the limits of the city of Memphis, with telegraph poles and wires shall, as a condition of further occupancy, pay to the city annually the sum of two dollars for each of said poles, such payment to begin from January 1, 1894, in respect of all such poles that were erected prior to that date; and from the date of erection as to such as have been erected since that date." This ordinance was amended by said council on February 25, 1902, so as to provide that such companies should "pay to the city. annually a rental in the sum of three dollars for each of said poles." It should be noted here that the amendment to the original ordinance increases the sum to be paid for each pole from $2 to $3, and inserts the word "rental" in the ordinance. Watkins' City Digest, pp. 39, 947. If the city had the right to charge for and collect this pole rental under its charter, the ordinance is valid, and the complainant might be entitled to a recovery in this case. It is stated in argument of counsel for both the complainant and defendant that the defendant company entered the city of Memphis and began the erection of its poles in August, 1890, and hence the question presented must be decided under the law of the state of Tennessee and the ordinances of the city of Memphis as they were at that date, and had become at the time of filing this bill. It is not controverted, but, on the other hand, it is conceded in argument by counsel for both parties, that the sovereign power to control the streets of the city of Memphis rested in the beginning with the Legislature of Tennessee. Assuming this as a starting point, let us proceed and determine, if we can, what authority the city of Memphis has over its streets, alleys, and public grounds. In section 1 of an act entitled "An act to reduce the charter of Memphis, and the several acts amendatory thereof, into one act, and to revise the same" (chapter 26, p. 225, Acts Tenn. 1869-70), it is provided, among other things "that the city council may do all things as a natural person." Section 46 (page 235) of said act provided that the general council of the city of Memphis shall have power "to close up, transfer, or sell any street, alley or public easement, and shall have and exercise complete and perfect control over all the streets, squares and other property of the city, whether lying within or without the limits of the city." The act of 1869–70 enumerated all the rights, powers, and privileges and property rights belonging to the city of Memphis prior to the act of 1879. By section 1, c. 10, p. 13, of the Acts of 1879, the act of 1869-70, just quoted, was repealed, and section 4, c. 10, p. 14, Acts 1879, expressly provided that: * "The public buildings, squares, promenades, wharf, streets, alleys, parks and fire-engines and all other property, real and personal, hitherto used by such corporation for municipal purposes are hereby transferred to the custody and control of the state to remain public property, as it has always been, for the uses to which said property has hitherto been applied." So it appears that whatever authority the state of Tennessee, the sovereign, had delegated to the city of Memphis prior to the act of 1879, p. 13, c. 10, it was by that act withdrawn from said city, and the property taken back to the sovereign, "to remain public property as it has always been," but it was to be held by the state "for the uses to which said property has hitherto been applied." For reasons satisfactory to itself, the Legislature of Tennessee of 1879 passed an act transferring this same property which it had withdrawn from the city of Memphis by chapter 10 of said acts back to the board of fire and police commissioners of that city-using almost the identical language that was used in section 4, c. 10, p. 14 of said acts-and conferred upon the said board of commissioners of the city of Memphis substantially the same rights and powers and control over its streets, alleys, and public easements. See section 3, c. 11, p. 16, Acts Tenn. 1879. It appears from this legislation that the charter of the city of Memphis, under which it was operating at the time the defendant company entered within its limits and began the erection of its poles, as well as at the time the ordinance was adopted authorizing the collection of the pole rental sued for in this case, vested the city council or board of commis |