rings." Another description speaks of "a metallic split ring." These are but details. As said by the Court of Claims, through Booth, J., "The invention described by the language of the claim was the yielding pad of asbestos and tallow." And this, the learned Judge also said, predominates as the one "central idea" in every description of the patent in either the specifications or claim.

We learn from the court that it heard much expert testimony, and in its opinion it considers two subsequent patents expressed to be improvements on the De Bange patent. One of these was issued to James B. Davis and the other to Gregory Gerdom. The difference between them and the De Bange patent was commented on, and it was said that the record disclosed that in all inventions subsequent to De Bange's "the pad of asbestos and tallow is the functioning element of the device, without which its utility is as nothing," and that a pad of that composition supplied "the necessary expansion, indispensable to forward the operation of both the Davis and Gerdom patents. The United States used the Gerdom patent and paid him substantial royalities for its use."

It would seem, therefore, that the contention of the Government turns upon a question of fact found against it by the court below; that is, it was found that the particular envelope of the tallow and asbestos pad were not essential features of De Bange's invention, and that the substitution of steel rings for brass rings could be an infringement of the invention. As said by counsel for claimant, claim 1 "does not recite among its elements the materials whereof the envelope [of the pad] and rings are made. . . It is, on the contrary, obvious that any suitable material may be used for these subsidiary parts." It is conceded that the pliable copper envelope (M2) may be properly regarded as a part of the "yielding packing." The patentee so states, but he does not say that the "strong shells of brass M3 M3 are parts" of it.

It would indeed be arbitrary, as said by claimant, to read into the claim the specific metal of which those shells are composed "for no other purpose than to render it [the claim] worthless."

We have seen De Bange describe what he conceived to be the best form of his invention, and contemplated that it could be represented in other forms and proportions. This, however, was unnecessary, for the law would secure him against imitation by other forms and proportions. Winans v. Denmead, 15 How. 330; Hotchkiss v. Greenwood, 11 How. 248, 265; Western Electric Co. v. La Rue, 139 U. S. 601, 608.

We think, therefore, that the Court of Claims rightfully decided the question of infringement against the Government.

The cross-appeal of claimant is directed to the question of damages.

In the original petition filed by it on January 31, 1895, damages were laid at $140,000. There was no traverse filed until October, 1907. An amended petition was filed April 12, 1909, and judgment was prayed for $1,447,667.98. In this petition it was alleged that the invention was used upon 1,518 guns of various calibers within the six years next preceding the filing of the original petition, the number which was used by the army and that used by the navy being given. The total cost of the guns was stated to be $18,226,263. There is no finding responding to these allegations. The opinion of the court was filed December 2, 1907, that is, before the filing of the amended petition. The opinion contains the following statement: "There is no testimony in the record upon which the quantum of damages can be predicated. The measure of damages would be the value of the device to the defendants. Following the precedents heretofore established, the case will stand upon the docket, with leave to furnish testimony upon this point."

224 U. S.

Opinion of the Court.

On the twentieth of May, 1909, judgment was rendered for claimant in the sum of $136,000. Each party moved for an amendment to the findings, which were overruled in part and allowed in part. The former findings were withdrawn and amended findings of fact filed. No exception appears to have been taken to this action. Indeed, the record does not furnish us with a comparison between the findings which were withdrawn and those filed. There is nothing to show upon what the court's ruling was invoked.

A motion was presented to this court April 25, 1910, to remand the case to the Court of Claims, and that that court be instructed to find and certify as matters of fact, in addition to the facts found, in regard to the cost of the guns in which the De Bange obturators were used, the amount the Government paid or contracted to pay for patented improvements in breech-loading mechanism for ordnance, and whether there appears in the record the testimony of experts as to the value of the De Bange device, or what would be a reasonable compensation for its use, and, if so, to state the amounts of such esti

mates.

It was further moved that the Court of Claims be instructed to strike out certain matters in the findings which were described to be evidentiary. The motion was postponed to the hearing, and is now to be considered. The motion is, in effect, for a direction to the Court of Claims to certify the evidence to this court, and not its conclusions from the evidence. This is clearly in contravention of the rule of this court which requires the record on appeal from the Court of Claims to contain a finding by the court "of the facts in the case established by the evidence in the nature of a special verdict, but not the evidence establishing it."

Besides, as we have seen, the record does not disclose what ruling was invoked. We can only act upon the

record, and that shows a finding of the court upon the question of compensation, to which finding there was no objection taken nor exception reserved. The finding determines the matter, being in the nature of a special verdict of a jury. United States v. New York Indians, 173 U. S. 464.

Ceballos & Co. v. United States, 214 U. S. 47, is not applicable. There was a contract of which there could be no dispute, and therefore a motion to embrace it in the record from the Court of Claims was granted and the case reviewed in the light thereof.

The motion to remand the case is therefore denied.

Judgment affirmed.

CITY OF POMONA v. SUNSET TELEPHONE AND TELEGRAPH COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 215. Argued March 14, 15, 1912.-Decided April 8, 1912.

A provision in a state constitution that municipal corporations may establish and operate public utility plants, and that persons and corporations may establish and operate works for supplying public service upon such conditions and under such regulations as the municipality may prescribe, is a step towards municipal control or ownership, and is not a grant to others of a right to occupy streets without the consent of the municipality; nor does it limit the municipality to regulations under its police power. The conditions are of general import; and so held as to the provision in Article XI, § 19, of the constitution of California as amended October 11, 1911. There is no sufficient reason why this court should not follow the highest court of California in construing "telegraph" corporations as used in § 536 of the Civil Code of that State as not including " telephone" corporations.

224 U.S.

Argument for Appellants.

Where a statute is amended so as to bring a certain class thereunder, the amendment to take effect at a subsequent date, before which date another act is passed relating to the same subject with a general repealing act enumerating exceptions, the amended statute is repealed, subject only to the exceptions before any rights accrue under the amendment.

In the absence of any apparent policy inducing it, it will be assumed that an exception to the repealing clause of an act to regulate franchises of "lines doing an interstate business" was made unwillingly and because the legislature assumed it was bound to exempt such lines from regulations.

In this case held that under the statutes of California a telephone corporation operating interstate and local lines in Pomona, a city of the fifth class, obtained rights to maintain its main line in the streets but not its local posts and wires except subject to regulations of the city.

172 Fed. Rep. 829; 97 C. C. A. 251, reversed.

THE facts, which involve the validity and constitutionality of certain provisions of the constitution and statutes of California in regard to the use of streets by telephone companies, are stated in the opinion.

Mr. John W. Shenk and Mr. William J. Carr, with whom Mr. C. W. Guerin, Mr. Robert G. Loucks, Mr. W. B. Mathews, Mr. Leslie R. Hewitt, Mr. J. P. Wood and Mr. J. W. Joos were on the brief, for appellants:

Poles and wires in the streets without permission given by competent authority are nuisances and may be abated. No user and no lapse of time can legalize the nuisance. The company can justify its invasion of the streets only by pointing to a particular statute or law authorizing it. The burden is on it to justify its use of the streets. L. T. Co. v. S. & W. W. R. Co., 41 California, 562; Siskiyou Lumber Co. v. Rostel, 121 California, 511; Marini v. Graham, 67 California, 130; Taylor v. Reynolds, 92 California, 573; Vandehurt v. Thoicke, 113 California 147; So. Pac. Co. v. Pomona, 144 California, 339; Coverdale v. Edwards, 155 Indiana, 374, 383; Valparaiso v. Bozarth, -153 Indiana,