XtM 1b\t (!{ornf II ICain §>ri!nal Stbrary CORNELL UNIVERSITY LIBRARY 3 1924 062 071 422 \H\\ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924062071422 CASES ON RAILROAD LAW COMPILED BY SIMEON E.'^BALDWIN, LL. D. ST. PAUL WEST PUBLISHING 00. 1896 COPYKIGHT. 1896, BY WEST PUBLISHING COMPANY. PREFACE. This compilation of cases has been made for use, in connection with a text-book, in instructing a class of law students in Railroad Law. That which the author has generally employed for this pur- pose is Pierce on Railroads, and especial prominence has been given to cases upon topics which are there omitted. New Haven, Conn., Jupe 1, 1896. BALDW.8EL.CAS.E.K. (IB)* CASES REPORTED. Pago Aerkfetz v. Humphreys (145 U. S. 418, 12 Sup. Ct. 835) 132 Baltimore & Potomac R. R. Co. v. Reaney (42 Md. 117, 14 Am. Railway Rep. 330) . 87 Beers v. Boston & Albany R. R. Co. (67 Conn. , 34 Atl. 541) 264 Bellinger v. New York Central Railroad (23 N. I. 42) 58 Elanchard v. Detroit, Lansing & Lake Michigan R. R. Co. (31 Mich. 43) 44 Block T. Fitchburg R. R. Co (139 Mass. 308, 1 N. B. 348) 285 Bohau V. Milwaukee, Lake Shore & W. Ry. Co. (61 Wis. 391, 21 N. W. 241, 19 Am. & Eng. R. R. Cases, 276) 119 Boston & Albany R. R. Co., Matter of (53 N. Y. 574) 50 Brigham v. Agricultural Branch R. R. Co. (1 Allen, 316) 92 Buffalo & Allegany R. R. Co. v. Cary (26 N. Y. 75) 3 Burnell v. New York Central R. R. Co. (45 N. Y. 184) 233 Camden & Amboy R. R. Co. v. Burke (13 Wend. 611) 219 Carroll County v. Smith (111 U. S. 556, 4 Sup. Ct. 539) 34 City of Belleville v. Citizens' Horse Ry. Co. (152 111. 171, 38 N. E. 584) 309 Clearwater v. Meredith (1 Wall. 25) 10 Connecticut Fire Insurance Co. v. Brie Railway Co. (73 N. Y. 399) 160 Conway y. Lewiston & Auburn Horse Kail- way Co. (87 Me. 283, 32 Atl. 901) 320 Corlin v. West-Bnd Street Railway Co. (154 Mass. 197, 27 N. E. 1000) 324 Coupland v. Housatonic R. R. Co. (61 Conn. 531. 23 Atl. 870) 299 Crossan v. New York & New England R. R. Co. (149 Mass. 196, 21 N. E. 367) 283 Page Grand Trunk Ry. Co. of Canada v. Ives (144 U. S. 408, 12 Sup. Ct. 679) 121 Hart V. Pennsylvania R. R. Co. (112 U. S. 331, 5 Sup. Ct. 151) 294 Herstine v. Lehigh Valley R. R. Co. (151 Pa. St. 244, 25 Atl. 104) 248 Hovelman v. Kansas City Horse R. R. Co. (79 Mo. 632, 20 Am. & Eng. R. R. Cases, 17) 315 Hunter v. Cooperstown & Susq;iehanna Valley R. R. Co. (112 N. Y. 371, 19 N. B. 280) 254 Interstate Commerce Act (24 Stat. 379: 25 Stat. 856, 860; 26 Stat. 743; 27 Suit. 443, 531) 179 Interstate Commerce Commission v. Balti- more & Ohio R. R. Co. (145 U. S. 263, 12 Sup. Ct. 844) 192 Jacksonville & Southeastern Railway Co. V. Walsh (106 111. 253, 14 American & English Railroad Cases, 245) 52 Jennings v. Grand Trunk Ry. Co. of Can- ada (127 N. Y. 438, 28 N. B. 394) 287 Jones V. New Orleans & Selma R. R. Co. (70 Ala. 227. 14 American & English Railroad Cases, 217) 55 Kellinger v. Forty-Second Street & Grand Street Ferry R. R. Co. (50 N. Y. 206). . 61 226 210 19 Delaware. Lackawanna & Western R. R. Co. V. Trautwein (52 N. J. Law, 169, 19 Atl. 178) Dow V. Memphis & Little Rock R. R. Co. (124 U. S. 652, 8 Sup. Ct. 673) Doyle V. Fitchburg R. R. Co. (162 Mass. 66, 37 N. B. 770, 44 Am. State Rep. 335) Duncomb v. New York, Housatonic & Northern R. R. Co. (84 N. Y. 190) East St. Louis Connecting Railway Co. v. Bast St Louis Union Railway Co. (108 111. 265, 17 American & English Railroad Cases, 163) Ehrismau v. East Harrisburg City Passen- ger Ry. Co. (150 Pa. St. 180, 24 Atl. 596) Blkins V. Camden & Atlantic R. R. Co., f36 N. J. Bq. 5, 9 Am. & Bng. R. R. Cases, 590) Everhart v. West Chester & Philadelphia Railway Co. (28 Pa. St. 339: Redfield's American Railway Cases, 180) Fargo V. Michigan (121 U. S. 230, 7 Sup. Ct. 857) Farrell v. Waterbury Horse Railroad Co. (60 Conn. 239, 21 Atl. 675) Frankle v. Jackson (30 Fed. 398) Geismer v. Lake Shore & Michigan South- ern R. R. Co. (102 N. Y. 563. 7 N. E. 828) 291 BALDW.SEL.CAS.K.R. (t) Lake 'Shore & Michigan Southern Ry. Co. V. Prentice (147 U. S. 101, 13 Sup. Ct. 261) 242 Lake Shore & Michigan Southern Ry. Co. V. Rosenzweig (113 Pa. St. 519, 6 Atl. 545) 258 Little V. Hackett (116 U. S. 366, 6 Sup. Ct. 391) 103 Louisville & Nashville R. R. Co. v. Weaver (9 Lea, 38) 235 Meriam v. Brown (128 Mass. 391) 43 Minneapolis & St. Louis Railway Co. v. Beckwith (129 U. S. 26, 9 Sup. Ct. 207) . 175 Mobile & Montgomery Ry. Co. v. Jurey (111 U. S. 584, 4 Sup. Ct. 566) 271 142 Moreland v. Boston & Providence R. R. Co. (141 Mass. 31, 6 N. E. 225) 263 Mosher v. St. Louis, Iron Mountain & Southern Ry. Co. (127 U. S. 390, 8 Sap. Ct. 1324) 240 Myrick v. Michigan Central R. R. Co. (107 U. S. 102, 1 Sup. Ct. 425) 279 53 319 204 27 ]98 108 85 Newman v. Phillipsburg Horse-Car R. R. Co. (52 N. J. Law, 446, 19 Atl. 1102) ... 114 Nichols V. Mase (94 N. Y. 160) 207 Norfolk & Western R R. Co v. Anderson fOO Va. 1, 17 S. B. 757) 229 Northern Pacific R. R. Co. v. Hambly (154 U. S. 349, 14 Sup. Ct. 983) 134 Nugent V. Boston, Concord & Montreal R. R. Corporation (80 Me. 62, 12 Atl. 797) . . 93 Ohio & Mississippi Railway Co. v. People (123 111. 467, 14 N. E. 874) 13 Pennsylvania Co. v. Roy (102 TJ. S. 451). . 222 People V. Batchellor (53 N. Y. 128) 29 Phillips V. Winslow (18 B. Mon. 431, 68 Am. Dec. 729) 212 CASES REPORTED. Page Quimby v. Boston & Maine R. R. Co (150 Mass. 365. 23 N. E. 205) 267 Railroad Co. v. Harris (12 Wall. 65) 6 Reagan v. Farmers' Loan & Trust Co. (154 U. S. 362, 14 Sup. Ct. 1047) 162 St. Louis Southwestern Ry. Co. v. Berry (60 Ark. 433, 46 Am. St, Rep. 212, 30 S. W. 764) 232 San Diego, Old Town & Pacific Beach R. R. Co. T. Pacific Beach Co. (44 Pae. 333) 24 Searles v. Manhattan Ry. Co. (101 N. Y. 661, 5 N. E. 66) 325 Shaw V. Railroad Co. (100 U. S. 605) 216 Sherman Anti-Trust Act, The (26 Stat. 209) 191 Simmonds v. New York & New England R. R. Co. (52 Conn. 264) 158 Snow V. Indiana, Bloomington & Western Ry. Co. (109 Ind. 422, 9 N. E. 702) 269 Snyder t. Hannibal & St. Joseph R. R. Co. (60 Mo. 413, 9 Am. Railway Rep. 254). . 116 Story V. New York Elevated R. R. Co. (90 N. Y. 122. 43 Am. Rep. 146) 63 Strohm v. New York. Lake Erie & West- em R. R. Co. (96 N. Y. 305) 98 Page Taggart v. Newport Street Railway Co. (16 R. I. 668, 19 Atl. 326) 306 Texas & Pacific Railway Co. v. Oox (145 U. S. 593, 12 Sup. Ct. 905) 144 Tolman v. Syracuse, Binghampton & New York R. R. Co. (98 N. Y. 198) 130 Union Freight R. R. Co. v. Winkley (159 Mass. 133, 34 N. B. 91) 276 Union Pacific Railway Co. v. Botsford (141 U. S. 250. 11 Sup. Ct. 1000) 99 Union Trust Co. v. Monticello & Port Jer- vis Railway Co. (63 N. Y, 311) 215 Wabash Railway Co. t. McDaniels (107 U. S. 454, 2 Sup. Ct. 932) 138 Warren v. King (108 U. S. 389, 2 Sup. Ct. 789) 38 Washington v. Baltimore & Ohio R. R. Co. (17 W. Va. 190, 10 Am. & Eng. R. B. Cases, 749) 148 Wood V. Detroit Citv Street Ry. Co. (52 Mich. 402. 18 N. W. 124) 322 Woodward v. Winslow (18 B. Mon. 431, 68 Am. Dec. 729) 212 Worthington v. Central Vermont B. B. Co. (64 Vt. 107. 23 Atl. 590) 250 TABLE OF CONTENTS. I. Organization of Railroad Companies. PagB Bufealo & Allegany R. R. Co. v. Cary. . . 3 Railroad Co. v. Harris 6 Clearwater -v. Meredith 10 Ohio & Mississippi Railway Co. v. People. 13 II. Directors. Duncomb v. New York, Housatonic & Northern R. R. Co 19 San Diego, Old Town & Pacific Beach R. R. Co. V. Pacific Beach Co 24 III. Creation of Capital Stock. ETerhart v. West Chester & Philadelphia Railway Co 27 IV. Subscriptions in aid of Railroads by Municipal Corporations. People T. Batchellor 29 Carroll County v. Smith 34 V. Shareholders. Warren v. King 38 VI. Acquisition of railroad real estate and easements by contract, license, or user. Meriam v. Brown 43 Blanchard v. Detroit, Lansing & Lake Michigan R. R. Co 44 VII. Acquisition of railroad real estate and easements by condemnation proceedings. Matter of Boston & Albany R. R. Co 50 Jacksonville & Southeastern Railway Co. V. Walsh 52 Bast St. Ijouis Connecting Railway Co. v. East St. Louis Union Railway Co 58 Jones V. New Orleans & Selma R. R. Co. . 55 VIII. Consequential Damages from Rail- road Construction to Parties ivhose Land is not in the Rail- road Iiocation. Bellinger v. New York Central Railroad . . 58 IX. Building Railroads on Highways. Kellinger v. Forty-Second Street & Grand Street Ferry R. R. Co u- ■ w • • B. Story V. New York Elevated R. R. Co... b.S Frankle v. Jackson S5 Baltimore & Potomac R. R. Co. v. Reaney bi X. The Iiocation of a Railroad. Brigham v. Agricultural Branch R. R. Co. 92 BALDW.SEI,.CA8.K.B. (vij) XI. Torts. Page Nugent V. Boston, Concord & Montreal R. R. Corporation 93 Strohm v. New York, Lake Erie & West- ern R. R. Co 98 Union Pacific Railway Co. v. Botsford. . . 99 Little V. Hackett 103 XII. Negligence. Farrell v. Waterbury Horse Railroad Co.. 108 Newman v. Phillipsburgh Horse-Car R. R. Co 114 Snyder v. Hannibal & St. Joseph R. R. Co. 116 BoUan v. Milwaukee, Lake Shore & W. Ry. Co 119 XIII. Injuries to Travellers on Highway. Grand Trunk Ry. Co. of Canada v. Ives . . . 121 Tolman v. Syracuse. Binghampton & New York R. R. Co 130 XIV. Injuries to Servants. Aerkfetz v. Humphreys 132 Northern Pacific H. R. Co. v. Hambly... 134 Wabash Railway Oo. v. McDaniels 138 XV. Injuries Resulting in Death. Doyle V. Fitchburg R. R. Co 142 Texas & Pacific Railway Co. v. Cox 144 XVI. Injuries to Cattle. Washington v. Baltimore & Ohio R. R. Co. 148 XVII. Injuries by Fire. Simmonds v. New York & New England R. R. Co 158 Connecticut Fire Insurance Co. v. Erie Railway Co 160 XVIII. Legislative Power over Railroad Companies. Reagan v. Farmers' Loan & Trust Co. . . . 162 Minneapolis & St. Louis Railway Co. v. Beckwith 175 XIX. Interstate Commerce and Sherman Anti-Trust Acts. Interstate Commerce Act 179 The Sherman Anti-Trust Act 191 Interstate Commerce Commission v. Balti- more & Ohio R. R. Co 192 XX. Taxation. Fargo V. Michigan 198 XXI. PoTrers of a Railroad Company. Elkins V. Xichols 1 Camden & Atlantic R. R. Co. . . 204 . Mase 207 V)ll TABLE OF CONTENTS. Paee Dow V. Memphis & Little Rock R. R. Co. . 210 Phillips T. Winslow 212 Uuion Trust Co. v. Monticello & Port Jer- vis Railway Co 215 Sliaw V. Railroad Co 216 XXII. Carriers of Passengers. Camden & Amboy R. R. Co. v. Burke 219 Pennsylvania Co. v. Roy 222 Delaware. Lackawanna & Western R. R. Co. V. Trautwein 226 Norfolk & Western R. R. Co. v. Anderson 229 St. Louis Southwestern Ry. Co. v. Berry. 232 Burnell v. New York Central R. R. Co. . . 233 Louisville & Nashville R. R. Co. v. Weaver 235 Mosher v. St. Louis, Iron Mountain & Southern Ry. Co 240 Lake Shore & Michigan Southern Ry. Co. V. Prentice 242 Herstine v. Lehigh Valley R. R. Co 248 Worthington v. Central Vermont R. R. Co. 250 Hunter v. Cooperstown & Susquehanna Valley R. R. Co 254 Lake Shore & Michigan Southern Ry. Co. V. Rosenzweig 258 Moreland v. Boston & Providence R. R. Co 263 Beers v. Boston & Albany R. R. Co 264 Quimby v. Boston & Maine R. R. Co 267 XXIII. Carriers of Freight. Page Snow v. Indiana, Bloomlngton & Western Ry. Co 269 Mobile & Montgomery Ry. Co. v. Jurey. . . 271 Union Freight R. R. Co. v. Winkley 276 Myrick v. Michigan Central R. R. Co.... 279 Crossan v. New York & New England R. R. Co 283 Block v. Fitchburg R. R. Co 285 Jennings v. Grand Trunk Ry. Co. of Cana- da 287 Geismer v. Lake Shore & Michigan South- ern R. R. Co 291 Hart V. Pennsylvania R. R. Co 294 Coupland v. Housatonic R. R. Co 299 XXIV. street Railways. Taggart v. Newport Street Railway Co.. . 306 City of Belleville v. Citizens' Horse Ry. Co 309 Hovelman v. Kansas City Horse R. R. Co. 315 Bhrisman v. East Harrisburg City Passen- ger Ry. Co 819 Conway v. Lewiston & Auburn Horse Railway Co 320 Wood V. Detroit City Street Ry. Co 322 Corlin v. West-End Street Railway Co. . . 324 Searles v. Manhattan Ry. Co 325 t ILLUSTRATIVE CASES ON RAILROAD LAW. BALDW.SEL.CAS.R B (1)* ORGANIZATION OF RAILROAD COMPANIES. Defective organization papers. Corporation de facto, BUFFALO & ALLEGANY R. E. GO. t. GARY. (26 N. Y. 75.) Court of Appeals of New York. Dec, 1862. Appeal from the superior court of Buffalo. Action upon the subscription of the intes- tate to the capital stock of the plaintiff. The plaintiff undertook to become incorporated un- der the general railroad act of 1850. .In May, 1S53, its articles of association were filed, and the intestate, June 8th, thereafter, became a subscriber for one thousand dollars of the capital stock, and paid ten per cent at the time of subscription, and died in September, 1853. The directors, after his death, made seven calls upon the stock of one hundred ■dollars each, and for this seven hundred dol- lars, claimed to be due, this action was Ijrought. The affidavit indorsed upon and filed with the articles of association was con- ceded to be defective; it containing no state- ment of an intention in good faith to construct or operate the road mentioned in the articles. In 1858 a law was passed by the legislature •of this state authorizing the plaintiff to sell its properly and effects to another railroad company; and, by the second section of the act, the plaintiff was declared to be a valid corporation, duly organized under the act to authorize the formation of railroad corpora- tions and to regulate the same, passed April ^, 1850, and the several acts amending the same, notwithstanding any error. Informality, insufficiency, act or amission, on the part of such company or any of its stockholders in the proceedings to become incorporated, and the said coi-poration and all the proceedings -of its stockholdei-s and officers were thereby legalized and confirmed. By another section, it was provided that nothing contained in this act should affect any suit before then commenced in any court. Upon tlie trial, the plaintiff offered in evidence certified copies •of the articles of association filed with the -county clerk and comptroller, and they were -objected to, on the ground of the defect in the affidavit The plaintiff then read in evi- dence the act of 1858, and thereupon the court overruled the objection, and the articles of association were read in evidence, and the defendant excepted. The plaintiff then gave evidence of the election of directors and offi- cers, June 1, 1853, and the purchase of the route of the proposed road after such election, and that contracts were made for its con- straction, and that the contractors entered upon the work, and that money was paid on various subscriptions to the capital stock, and •expended on the road, and liabilities incurred in the construction. Evidence was given of the various calls for payment upon the stock, counted upon in the complaint. At the close •of the evidence the defendant moved for a nonsuit, on the ground that the plaintiff had failed to prove its corporate existence at any time prior to the passage of the act of 1858, if at all; and that the defendant was not lia- ble on the subscription of the intestate. The Acts of user. motion was denied, and the defendant ex- cepted. Judgment was given for the plain- tiff for the full amount claimed, which was affirmed at general term, and the defendant appealed to this court. MASTEN, J. The defendant contends that the plaintiff's organization is defective, be- cause the affidavit annexed to the articles of association does not contain the allegation re- quired by the statute, "that it is intended in good faith to construct or to maintain and operate the road mentioned in the articles of association," and that it is not therefore a coi-poration. The articles of association are in due form, and the affidavit annexed to them, while it does not come up to the re- quirement of the statute in the particular specified, is colorable. The articles and affi- davit were filed and recorded in the office of the secretary of state; the capital stock was subscribed and partly paid in; the route of the road was surveyed and located; the. right of way obtained; a contract for the construc- tion of the whole road entered into, and lia- bilities incurred which have not been satis- fied. This was sufficient to constitute the plaintiff a corporation de facto, so that nei- ther it nor its stockholders can object that it is not strictly a corporation de jure. I am of the opinion that, under this and similar general acts for the formation of cor- porations, if the papers filed, by which the corporation is sought to be created, are col- orable, but so defective that, in a proceeding on the part of the state against it, it would for that reason be dissolved, yet by acts of user under such an organization it becomes a corporation de facto, and no advantage can be taken of such defect in its constitution, collaterally, by any person. Any other rule, it seems to me, must be fraught with serious consequences and great public mischief. Most of the persons who subscribe in good faith for the stock do not examine to see whether all the requirements of the statute in the organization of the cor- poration have been complied with; and if they did examine would not probably discover a defect like the one now pointed out. The stock is sold in market from hand to hand without any such examination. The corpo- ration may carry on its business for years, and its stock have entirely changed hands, when its property may be destroyed by a trespasser, and in an action against him in the name of the corporation, his only defence, "you are not legally a corporation by rea- son of a defect in your constitution," would (upon the doctrine contended for by the de- fendant) be successful. The doctrine of es- toppel could not be applied in that case, as it has been in some cases, to counteract an er- roneous decision upon the question now be- fore me., I am aware that there are decisions in the Supreme Court, beginning with Society v. Rapalee, 16 Wend. 605, upon the point now OBGANIZATION OF RAILBOAD COMPANIES. presented to us, in conflict with ttie opinion I have here expressed. Their error is, in not recognizing the distinction between what is suflicient to constitute a corporation de facto and what is necessary to constitute one de jure, and how and by whom a corporation de facto may be shown not to be a corporation de jure. The state alone can take advantage of a defect in the constilTition of a corpora- tion like the one In this case. In its action it will be governed by public policy and con- siderations. And it has declared that it will not take advantage of the defect in the plain- tiff's constitution. I think the court of ap- peals has settled the principle as I have stat- ed it. Eaton v. Aspinwall, 19 N. Y. 119. Judgment affirmed. DENIO, C. J., and DA VIES, WRIGHT, GOULD, and SMITH, JJ. concur. ALLEN, J. (dissenting). The plamtiff's right to recover must, 1 think, depend upon the validity and sufficiency of the proceedings for their Incorporation under the general act of 1850. The question is upon the validity of the contract alleged to have been made by the intestate by his subscription on the Sth of June, 1853; and the tests of its validity must be applied as of that date. There is no evi- dence that he did anything, after that time, recognizing the existence of the corporation, and up to that time there had been no user of the franchise which would estop any one from disputing the corporate existence of the plain- tiff. AH that had been done under the arti- cles of association was, that the persons named as directors had come together and chosen from their nuhiber a president, secre- tary, treasurer, and other officers. This was in no sense a user of any corporate franchise extended to thp body as a corporation by the laws of the state. By thus getting together, calling themselves a corporation and elect- ing officers, they did not become a corpora- tion quoad third persons and the people, so that their corporate existence could only be questioned by the attorney-general upon a quo warranto. Had they, on the 2d day of June, 1853, brought an action as a corporation, no one would claim that this formal election of officers was such a user of a corporate fran- chise as to constitute them a corporation de facto. And yet that was all there was when the plaintiff subscribed; and if they were not then a corporation, either de jure or de facto, the contract was invalid, and the subsequent acquisition by the plaintiff of certain cor- porate rights, as against third persons and the public, by usurpation, could not inure by relation to establish a contract against an In- dividual having no subsequent concern or dealing with the company. A single act in the exercise of the franchise claimed would not be a user, within the rule that makes a user evidence of corporate existence; still less is the preparation to enter upon the user suffi- cient to establish the existence of a corpora- tion. The user of a corporate franchise has never, so far as cases have come to my no- tice, been relied upon or regarded as evi- dence of corporate existence in actions up- on subscriptions to the capital stock. In- deed it could not be, for the reason that contracts of that character are incident to the creation of the corporation. In some cases a person dealing with a corporation is estopped from denying its existence. Ang. & A. Corp. § 94. But in this com-t, as well as in other courts, in actions upon subscrip- tions to the capital stock, the question of the creation and existence of the corporation has been regarded as an open question, and the subscriber has not been concluded by his sub- scription. The questions made in the cases that have been before this court would have- been very easily disposed of, had the doc- trine of estoppel been deemed applicable; and the fact that the proceedings for the in- corporation have been examined and cases disposed of upon the merits, is very high evi- dence that the subscriber is at liberty to con- trovert the existence of the corporation. Plankroad Co. v. Vaughan, 14 N. Y. 546; Railroad Co. v. Hatch, 20 N. Y. 157. There Is good reason why the party should not be held to have admitted the existence of the coi-poratlon by his subscription. The con- sideration of his undertaking Is the shares of stock which he receives, or expects to re- ceive, from the corjxjratlon. If the compa- ny has not been legally incorporated, the stock, as such, is of no value; It has no ex- istence. He agrees to pay for what he can- not get, and hence his promise is nudum, pactum. It was decided, in Society v. Rap- alee, supra, that a promise In writing to pay a certain sum to the tnistees of a certain church did not estop the promisor from re- quiring proof, or, in other words, from deny- ing the incorporation of the church: Canal Co. V. Hathaway, 8 Wend. 480; Corporation V. Valentine, 10 Pick. 142; Proprietors v. The- obold, 1 Moody & M. 151 ; Plankroad v. Thatch- er, 11 N. Y. 102; Plankroad Co. v. AVetsel, 21 Barb. 56; Plankroad Co. v. Rice, 7 Barb. 157; all of which, with the exception of the first, were actions upon stock subscriptions, and in all of which the question of the proper organization and incoi-poration of the plain- tiff was made by the defendants and consid- ered by the court. Valk v. Crandall, 1 Sandf. Ch. 179, was the case of a subscription In- termediate an irregular organization of a banking association, by a certificate not in conformity with the statute, and a formal perfect organization by filing a certifica+e as required by law; and It was held that the subscription and the mortgage given as se- curity were void. It does not need the cita- tion of authority to the proposition that a party, seeking to avail himself of a special privilege or franchise under a statute, must bring himself strictly within the terms of the act the benefit of which he seeks. The prin- ciple Is elementary. The statute authorizing ORGANIZATION OF RAILROAD COMPANIES. the creation of corporations, by the voluntary association of individuals for that purpose, must be strictly pursued. A compliance with the statute is a condition precedent to the existence of the corporation. No act required by the statute as a preliminary to the forma- tion of the corporation can be omitted as non- essential. In Plankroad Co. v. Vaughan, su- pra, stress was laid upon the fact that the documents mentioned and called for by the statute contained all that was, in terms, re- quired to be inserted in them; thus conceding that any departure from the statute, in omit- ting to comply with a positive requirement, would have been fatal. In Railroad Co. v. Hatch, supra, . judgment was given for the plaintiff, for the reason that there was a sub- stantial compliance with the statute in all respects; and the same remark applies to the case of Plankroad Co. v. Thatcher. It is only on compliance with the provisions of this act that the articles of association may be filed in the office of the secretai-y of state, and the as- sociates become a corporation. Laws 1850, p. 211, § 1. Section 2 of this act forbids the filing and recording of the articles of associa- tion and the incorporation of the associates, until there is indorsed upon or annexed to such articles an affidavit, made by at least three of the directoi-s named in thf articles, stating, among other things, that "it is in- tended in good faith to construct or to main- tain and operate the road mentioned in such articles of association." This is omitted in the affidavit filed with the plaintiff's articles of association. The statute required some evidence of the good faith of the associates, and prescribed this as the evidence to be presented. When the legislature parted with their discretion and supervisory control in the matter of creating railroad corporations, it was fit and proper that the public should, so far as was practicable, be protected against fraudulent or speculative organizations under the general act: and hence the requirement of not only the subscription and payment of a given sum per mile of the proposed road, but an affidavit of the bona fide intent to carry into effect the object of the proposed corporation. The cfinission of this part of the required affidavit was fatal to the pro- ceedings for the incorporation of the plain- tiff. It was so regarded by the plaintiff and by the legislature, and hence the act of 1858 was passed. That act legalized the acts of the corporation from the first, and to some extent and for some purposes gave them the same rights as against third persons and the public which they would have had if the pro- ceedings for their incorporation in the first instance had been perfect and regular. But the act could not have a retroactive effect so as to give vitality to an executory contract with a stranger void in its inception, for the reason that there was no corporation capa- ble of contracting. If the intestate was not bound by his promise when made, no subse- quent act of the legislature could create a liability. The legislature can neither make nor unmake contracts for parties. The con- stitution, as well as the well-defined limits of legislative power, aside from the express pro- hibition of the constitution, forbid this. The judgment should oe reversed and a new trial granted, costs to abide event. SUTHERLAND, J., concurs. SELDEN, J., expressed no opinion. Approved in Cayuga Lake R. R. Co. v. Kyle, 64 N. Y. 185. ORGANIZATION OP KAILROAD COMPANIES. Inter-state railroad. Foreign corporation. Jurisdiction. Effect of demurrer in relating back. W^aiver of prior pleading. Coupon ticlxets. of Columbia when the writ was served, and RAILROAD CO. v. HARRIS. (12 Wall. 65.) Sunreme Court of the United States. Dec, 1870. Action by a passenger against a railroad company to recover darBages for a personal injury. There was a judgment for plaintiff. Defendant brings error. Affirmed. The facts sufficiently appear in the opin- ion of the court. Mr. Justice SWAYNB. This is a writ of error to the supreme court of the District of Columbia. Harris sued the Baltimore and Ohio Rail- road Company for Injuries which he re- ceived by a collision. The declaration sets out that the company is a corporation es- tablished by law by the name of the Balti- more and Ohio Railroad Company, having a legal and recognized existence within the limits of the District of Columbia, and exer- cising there their corporate rights and priv- ileges in the making of contracts and re- ceiving freight and passengers for transpor- tation upon their roads from the city of Washington to the Ohio river; that at the city of Washington, on the 23d of October, 1864, the plaintiff, wishing to be transported by the company over their roads to the Ohio river and towards the city of Columbus in the state of Ohio, for the sum of fifteen dol- lars, paid to the company, pm-chased of them a ticket for a seat and , passage in their cars, to be transported along their roads from the city of Washington to the Ohio river and towards the city of Colum- bus; that in pursuance of this contract he took his seat in one of the cars of the com- pany; that the company, in consideration of the money so paid, undertook and prom- ised to transport him safely to the Ohio riv- er; that the company managed their trains so negligently and carelessly that two trains running in opposite directions, came in col- lision near Mannington, in the state of Vir- ginia, whereby the plaintiff received the in- juries complained of. The company pleaded two pleas in abate- ment. (1) That the company was not an inhabitant of the District of Columbia when the writ was served. (2) That the company was not found in the District of Columbia when the writ was served. To the first plea Harris replied, that the company was an inhabitant of the District of Columbia by virtue of certain acts of congress, the dates and titles of which are set forth, and that they had accepted the provisions of those acts and constructed their roads under them, availing themselves of the privileges thus conferred, and doing business under them in the District of Co- lumbia. To the second plea he replied that the company was found within the District was within the jurisdiction of the court by virtue of the acts of congress mentioned in the first replication. The company demurred to these replica- tions. The demurrers were oveiTuled. The company thereupon filed the general issue of not guilty. The cause was tried by a jury and a verdict found for the plaintiff, upon which judgment was entered. Upon the trial the counsel for the company prayed the court to instruct the jury that upon the evidence before them the plaintiff was not entitled to recover. ' The court re- fused to give this instruction, and the com- pany excepted. Other exceptions appear by the record to have been taken, but they were not embodied in a bill of exceptions, and we cannot therefore consider them. The errors insisted upon here, at the first argu- ment of the case, were:— The overruling of the demurrers to the replications to the pleas in abatement. The refusal of the court to give the in- struction above set forth. And that the declaration is fatally defect- ive, wherefore the judgment should have been arrested, and must now be reversed. When the case was first considered by this court in conference, it was found that while all the judges were of opinion that the judg- ment should be affirmed, there was a differ- ence of opinion upon the question whether the acts of congress and the statutes of Virginia relating to the company created a new and distinct corporation in the Dis- trict of Columbia and in the state of Virgin- ia respectively, or whether they were only enabling acts in respect to the corporation under the name of the "Baltimore and Ohio Railroad Company," as originally created by the state of Maryland. Subsequently the question was ordered to stand for reargu- ment, and it has been reargued by the coun- sel on both sides. As the solution of this question must determine to a large extent the grounds upon which the judgment of the court is to be placed, it is necessary carefully to consider the subject. The Baltimore and Ohio Railroad Com- pany was incorporated by an act of the leg- islature of Maryland, passed on the 28th of February, 1827. On the 8th of March fol- lowing, the legislature of Virginia passed an act whereby, after reciting the Maryland act, it was declared "that the same rights and privileges shall be, and are hereby, granted to the aforesaid company within the territory of Virginia, and the said company shall be subject to the same pains, penal- ties, and obligations as are imposed by said act; and the same rights, privileges, and immunities which are reserved to the state of Maryland or to the citizens thereof are hereby reserved to the state of Virginia and her citizens." Several other statutes relating to the com- ORGANIZATION OF RAILROAD COMPANIES pany were subsequently passed in Virginia, but tbey do not materially affect tbe ques- tion under consideration, and need not be more particularly adverted to. By an act of the legislature of Maryland, of the 22d of February, 1831, the company was au- thorized to build a lateral road- to the line of the District of Columbia. On the 2d of March, 1831, congress passed" an act which, after reciting, by a preamble, the original act of incorporation, enacted, "that the Baltimore and Ohio Railroad Company, incorporated by the said act of the general assembly of the state of Maryland, shall be, and they are hereby, authorized to extend into and within the District of Columbia a lateral railroad. . . . And the said Balti- more and Ohio Railroad Company are here- by authorized to exercise the same powers, rights and privileges, and shall be subject to the same restrictions, in the construction and extension of the said lateral road into and within the said District, as they may exercise or be subject to under or by virtue of the said act of incorporation in the ex- tension and construction of any railroad within the state of Maryland, and shall be entitled to the same rights, benefits, and immunities in the use of said road and in regard thereto as are provided in the said charter, except the right to construct any lateral road or roads in said District from said lateral road." A number of local regu- lations follow, which are not material to be considered. A supplementary act of the legislature of Maryland, passed March 14, 1832, provided that the stock issued by the company to complete this lateral road "shall, united, form the capital upon which the net profits derived from the use of said road shall be apportioned," etc. The act of congress of February 26, 1834, and of March 3, 1835, are confined to mat- ters of detail, and may be laid out of view. When the case was reargued as directed by this court, the counsel for the company admitted that the acts of congress In ques- tion were only enabling acts, and that they did not create a new corporation, but they insisted that the acts of Virginia were of a different character, and that they worked that result. As regards the point under consideration we find no substantial difference. In both, the original Mainland act of incorporation is referred to, but neither expressly nor by implication create a new corporation. The company was chartered to construct a road in Virginia as well as in Maryland. The latter could not be done without the consent of Virginia. That consent was given upon the terms which she thought proper to pro- scribe. With a few exceptions, not mate- rial to the question before us, they were the same as to powers, privileges, obliga- tions, restrictions, and liabilities as those contained in the original charter. The per- mission was broad and comprehensive in its scope, but it was a license and nothing more. It was given to the Maryland cor- poration as such, and that body was the same in all its elements and in its identity afterwards as before. In its name, locality, capital stock, the election and power of Ua officers, in the mode of declaring dividends, and doing all its business, its unity was un- changed. Only the sphere of its operations was enlarged. In what it does in Virginia the same prin- ciple is involved as in the transactions of the Georgia corporation in Alabama which came under the consideration of this court in Bank V. Earle, 13 Pet. 558. The distinction Is that here the assent of the foreign author- ity is express, while there it was implied. A corporation is in law, for civil purposes, deemed a person. It may sue and be sued, grant and receive, and do all other acts not ultra vires which a natural person could do. The chief point of difference between the natural and the artificial person is that ihiy former may do whatever is not forbidden by law; the latter can do only what is author- ized by its charter. It cannot migrate, but may exercise its authority In a foreign terri- tory upon such conditions as may be pre- scribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If It do business there It will be presumed to have assented and will be bound accordingly. Insurance Co. v. French, 18 How. 405. For the purposes of federal jurisdiction it is regarded as if it were a citizen of the state where It was cre- ated, and no averment or proof as to the citi- zenship of its members elsewhere will be permitted. There is a presumption of law which is conclusive. Railroad Co. v. Letson, 2 How. 497; Marshall v. Railroad Co., 16 How. 329; Railroad Co. v. Wheeler, 1 Black, 297. We see no reason why several states can- not, by competent legislation, unite in creat- ing the same corporation or In combining sev- eral pre-existing corporations into a single one. The Philadelphia, Wilmington, and Baltimore Railroad Company is one of the latter description. In the case of that com- pany against Maryland (10 How. 392), Chief Justice Taney, in delivering the opinion of this court, said: "The plaintiff in error is a corporation composed of several railroad companies, which had been previously char- tered by the states of Maryland, Delaware, and Pennsylvania, and which, by corre- sponding laws of the respective states, were united together and form one corporation, under the name and style of the Philadel- phia, Wilmington, and Baltimore Railroad Company. The road of this corporation ex- tends from Philadelphia to Baltimore." He gives the history of the legislation by which this result was produced. No question was raised on the subject, but the opinion as- sumes the valid existence of the corporation thus created. The case was brought into 0KGANIZA.T10X OF KAILROAD COMPANIES. this court under the 25th section of the judi- ciary act of 1789. The jurisdictional effect of the existence of such a corporation, as re- gards the federal courts, is the same as that of a co-partnership of individual citizens re- siding in different states. Nor do we see any reason why one state may not make a coi"poration of another state, as there organ- ized and conducted, a corporation of its own, quoad hoc any property within its terri- torial jurisdiction. That this may be done was distinctly held in Railroad Co. v. Wheel- er, 1 Black, 297. It is well settled that cor- porations of one state may exercise their faculties in another, so far, and on such terms, and to such extent as may be permit- ted by the latter. Blackstone Manuf'g Co. V. Inhabitants, 13 Gray, 489; Bank v. Barle, 13 Pet. 588. We hold that the case before us is within this latter category. The question is always one of legislative intent, and not of legislative power or legal possibility. So far as there is anything in the language of the court in the case' of Railroad Co. v. Wheeler, In conflict with what has been here said, it is intended to be restrained and qual- ified by this opinion. We will add, however, that as the case appears in the report, we think the judgment of the court was correct- ly given. It was the case of an Indiana railroad company licensed by Ohio, suing a citizen of Indiana in the federal court of that state. In Railroad Co. v. Gallahue's Adm'r, 12 Grat. 658, it was held by the court of appeals of Virginia that the company was suable in that state. In this we concur. We think this condition is clearly implied in the li- cense, and that the company, by constructing its road there, assented to it. The authority of that case was recognized by the coiu:t of appeals of West Virginia, in Goshom v. Su- pervisors, 1 W. Va. 308, and in Baltimore & O. R. Co. v. Supervisors, 3 W. Va. 319. Here the question is \»hether the company was suable in the District of Columbia. In the case reported in Grattan, it was said: "It would be a startling proposition if in aU such cases citizens of Virginia and others should be denied all remedy in her courts, for causes of action arising under contracts and acts entered into or done within her territory, and should be turned over to the courts and laws of a sister state to seek redress." The same considerations apply to the case before us. When this suit was commenced, if the the- ory maintained by the counsel for the plain- tiff In error be correct, however large or small, the cause of action, and whether it were a proper one for legal or equitable cognizance, there could be no legal redress short of the seat of the company in another state. In many instances the cost of the remedy would have largely exceeded the value of its fruits. In suits local in their character, both at law and in equity, there could be no relief. The result would be, to a large extent, immunity from all legal responsibility. It is not to be supposed that congress intended that the im- portant powers and privil^es granted should be followed by such results. But turning our attention from this view of the subject and looking at the statute alone, and reading it by its own light, we entertain no doubt that it made the company liable to suit, where this suit was bi-ought, in all re- spects as if it had been an independent cor- poration of the same locality. We will now consider, specifically, the sev- eral objections to the judgment, relied upon by the plaintiffs in error. The pleas in abatement were bad. The de- murrers reached back to the first error in the pleadings, and judgment was properly given against the party who committed it. If the replications were bad, bad replications were sufficient answers to bad pleas. But it is said the declaration was bad, and that the demurrers brought the defect in that plead- ing under review. The principle has no ap- plication where the defect is one of form and not of substance. City of Aurora v. West, 7 Wall. 82. The alleged defect in the declaration will be considered in connection with the error assigned relating to that subject. But if the court decided erroneously, the company waived the error by pleading over in bar. If it were desired to bring up the judgment up- on the pleadings for examination by this court, the company should have stood by the demurrers. In the proper order of pleading, which is obligatory, a plea in bar waives all pleas, and the right to plead, in abatement. Young V. Martin, 8 Wall. 354; City of Aurora V. West. 7 Wall. 92; Clearwater v. Mere- dith, 1 Wall. 42; 1 Chit. PI. 440, 441. The bill of exceptions which brought upon the record the refusal of the court to instruct the juiy that the plaintiff was not entitled to recover, exhibits, among others, the follow- ing facts: Harris contracted, paid his mon- ey, and received his tickets at the city of Washington. The tickets consisted of three coupons, — one for his passage from Baltimore to Columbus, Ohio, another for his passage from Washington Junction to Baltimore, and the third for his passage from Washington City to Washington .lunction. It is necessary to consider only the two last mentioned. They are both headed "Baltimore and Ohio Railroad," and signed, "L. M. Cole, general ticket agent." Above the coupon firet men- tioned Is this memorandum: "Responsibility for safety of person or loss of 'baggage on each portion of the route is confined to the proprietors of that portion alone." Bach cou- pon has printed on its face the words "Condi- tioned as above." The coupon last mention- ed gave Harris the right of passage over the lateral branch both in the District of Colum- bia and in Maryland. The second coupon gave him the same right in respect to the main stem both in Maryland and in Virginia. The insti-uction asked for assumed errone- ously that there were two corporations under ORGANIZATION OF RAILROAD COMPANIES. the same name, one of them in Virginia, and that the latter was liable and alone liable to the plaintiff. The attempted limitation of responsibility by the memoranda at the head and on the face of the coupons proceeded upon the same erroneous assumption as to the dual- ity of the corporate ownership of the roads. These views are sufficiently answered by what has been already said upon the sub- ject. But if we concurred with the counsel for the plaintiff in error we should then hold that the agent who Issued the coupons was the agent of both corporations; that the con- tract was a .loint one; and that it involved a joint liability, unless the linowledge of the memoranda on the coupons and the assent of the plaintiff were clearly brought home to him. Bissell v. Railroad Co., 22 N. Y. 258; Champion v. Bostwicli, 18 Wend. 175; Gary v. Railroad Co., 29 Barb. 35; Quimby v. Van- derbilt, 17 N. Y. 306; Najac v. Railroad Co., 7 Allen, 329; Railway Co. v. Blake, 7 Hurl. & N. 987. In all such cases the burden of proof rests upon the carrier. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 388; Brown v. Railroad Co., 11 Cush. 97; Bean v. Greeri, 8 Fairf. 422; Dorr v. New Jersey Steam Nav. Co., 4 Sandf. 136, 11 N. Y. 485. The bill of exceptions does not show that any testimony was given upon that sub- ject. The court was asked to assume that the limitation on the face of coupons was it- self conclusive, and to instruct the jury ac- cordingly. But having held the unity of the corporation, of the proprietorship of the roads, and of the contract, it is needless fur- ther to consider the case in this aspect. The instruction asked for was properly re- fused. The jurisdiction of the court was not gov- erned by the 11th section of the judiciary act of 1789. It did not depend upon the citi- zenship of the parties. It was controlled by acts of congress local to the district. A citi- zen of the district cannot sue in the circuit courts of a state. Hepburn v. Ellzey, 2 Cranch, 445. If a corporation appear and defend in a foreign state it is bound by the judgment. Ang. & A. Corp. §§ 404, 405; Flanders v. Insurance Co., 3 Mason, 158, Fed. Cas. No. 4,852; Cook v. Transportation Co., 1 Denio, 98. If the declaration were in- sufficient, the additional averments in the replications admitted by the demurrer to be true, cured the defect. Insui-ance Co. v. French, 18 How. 405. Judgment affirmed. See, as to inter-state railroads. Railroad Co. V. Koontz (1881) 104 U. S. 5. As to jurisdic- tion over them of federal courts, see Nashua & Lowell B. R. Corporation v. Boston & Ijowell R. R. Corporation (1890) 136 U. S. 356, 10 Sup. Ct. 1004. 10 ORGANIZATION OP BAILROAD COMPANIES. Consolidation. New corporation created. Pleading, Duplicity. Waiver of prior plea, CLEARWATER v. MEREDITH et al. (1 Wall. 25.) Supreme Court of the United States. Dec, 1863. Under the provisions of a statute of In- diana, passed May 11, 1852, for the incor- poration of railroads, the Cincinnati, Cam- bridge & Chicago Short Line Railway Com- pany—frequently entitled throughout the case, for brevity, "The Short Line Railway" — was created and made a "corporation" in that State. Rev. St. Ind. (Ed. 1860) p. 504. This act contained no provision by which any railroad company incorporated under it could consolidate its stock with the stock of any other corporation. In February of the year following, however, the legislature did pass an act— Act Feb. 23, 1853; Rev. St. Ind. 1860, p. 526— allowing any railway that had been organized, to intersect with any other road, and to merge and consoli- date their stock; an act whose privileges, on the 4th of the month following, were ex- tended to railroad companies which should afterwards be organized. The language of the act was: "Such railroad companies are authorized to merge and consolidate the stock of the respective companies, making one joint stock company of the two railroads thus connected." With these statutes in force, Clearwater, on the 12th July, 1853, sold a tract of land to Meredith and others for $10,000, taking 200 shares of the already mentioned Short Line Railway Company's stock in payment; Meredith and they, however, by written con- tract, guaranteeing to Clearwater, that the stock should be worth par, that is to say, $50 a share, in Cincinnati, on the 1st October, 1855. The 1st October, 1855, having arrived and passed, and Clearwater, considering that the stock was not worth par at Cincinnati, brought assumpsit in the circuit court for the Indiana district, against Meredith and his co-guarantors, on the contract. The declara- tion set forth the sale, acceptance of the stock, and guaranty; that Clearwater still held possession of the stock; and it assigned for breach, that the stock was not worth par at the time and place stipulated, but on the contrary, was of no value at all. To this declaration there were six pleas. Issues, in fact, were joined on the first and fourth, and demurrers sustained to the sec- ond, third, and sixth. The fifth plea set forth substantially, that after the execution of the guaranty, and be- fore the 1st of October, 1855, to wit, &c., the stock of the said Short Line Railway was merged and consolidated with the stock of a second railway company named (The Cincin- nati, New Castle & Michigan Railroad Co.); making one joint stock company of the two, under a new corporate name, which was given (The Cincinnati & Chicago Railroad Traversing matter of law. Judgment of nil capiat. Co.)~; that the said corporations were or- ganized and formed under the already men- tioned act of May 11, 1852, to provide for the- incorporation of railroad companies; that the roads were connecting and intersecting roads; that the consolidation was made with the consent of the stockholders and di- rectors of both companies; that afterwards, in August, 1854, the said newly formed joint company was merged and consolidated with a third railway corporation of the state of Indiana, , whose name was also given (The Cincinnati, Logansport & Chicago Railway Co.), which company was constructing a road that intersected with the said already mentioned newly formed joint company; that by the said consolidation, the stock of the said two companies was merged and con- solidated, "forming one joint stock company out of said two companies;" that the said consolidation was made with the consent of the directors and stockholders of said two companies, and v^ith the consent of said plaintiff; that the said consolidated com- pany assumed a third corporate name, which was stated (The Cincinnati & Chicago Rail- road Co.); and that, by reason of the said consolidation, the stock of the Short Line Railway Company in said agreement speci- fied, was destroyed, and rendered wholly worthless and of no value. A demurrer was interposed to this plea, which was overruled. Then the plalntifE filed a replication. To this a demurrer was put in by the other side, and the court having sustained it, an amended or rather a substituted replication was put in. To this a demurrer was also sustained. Whereupon, on motion and by leave of the court, the plaintiff withdrew his joinder in demurrer, and filed the following second amended replication: "And the plaintiff, as to the plea of the defendants fifthly above pleaded, says that he ought not, by reason of anything therein alleged, to be debarred or precluded from having and main- taining his aforesaid action against the de- fendants, because he says that the said stock of the Cinciimati, Cambridge & Chica- go Short Line Railway Company was not de- stroyed, either in whole or in part, nor was the same rendered worthless and of no value, in manner and form as the defendants by their said plea have alleged. And this he prays may be inquired of by the country." This replication was also demurred to, and the demurrer sustained. The plaintiff now saying nothing further, and choosing to abide by his last-named amended replication, judg- ment was rendered for the defendant. The question presented on error here was this: Did the court below commit error when it sustained a demurrer to the last re- plication, and gave judgment against the plaintiff Clearwatei, as it did? Mr. Pugh, for plaintiff in error, dricks, contra. Mr. Hen- ORGANIZATION OF RAILROAD COMPANIES. 11 Mr. Justice DAVIS, after stating the case, delivered the opinion of the court: In order to arrive at a correct solution of this question, it Is 'important to consider whether the plea Is a good one, for a de- murrer, whenever interposed, ' reaches back through the whole record, and "seizes hold of the first defective pleading." The plea in con- troversy confesses the original cause of ac- tion, but sets up matter, which has arisen sub- sequent to It, to avoid the obligation to per- form it. It acknowledges that the guaranty was given as claimed, but insists that the consolidation of the interests and stock of the three i-ailroad companies necessarily destroy- ed and rendered worthless and of no value the guaranteed stock, and that Clearwater having consented to the transfer, is in no position to claim redress from Meredith and his co-defendants. If Clearwater was a consenting party to a proceeding which, of itself, put it out of the power of the defendants to perform their con- tract, he cannot recover, for "promisors will be discharged from all liabil'lty when the non- performance of their obligation is caused by the act or the default of the other contracting party." 2 Pars. Cont. 188. The Cincinnati, Cambridge and Chicago Short Line Railway Company, whose stock was guaranteed, was, as stated in the plead- ings, organized under a general act of the state of Indiana, providing for the incorpora- tion of railroad companies. This act was passed May 11, 1852, and contained no pro- vision permitting railroad corporations to con- soUdate thCir stock. It can readily be seen that the interests of the public, as well as the perfection of the railway system, called for the exercise of a power by which different lines of road could be united. Accordingly, on the 23d February, 1853, the general assem- bly of Indiana passed an act allowing any railway company that had been organized, to lintersect and unite their road with any other road constructed or in progress of con- struction, and to merge and consolidate their stock, and on the 4th of March, 1853, the privileges of the act were extended to railroad companies that should afterwards be organ- ized. The power of the legislature to confer such authority cannot be questioned, and without the authority, railroad corporations, organized separately, could not merge and consolidate their interests. But in conferring the author- ity, the legislature never intended to compel a dissenting stockholder to transfer his in- terest, because a majority of the stockholders consented to the consol'ldation. Even if the legislature had manifested an obvious pur- pose to do so, the act would have been illegal, for it would have impaired the obligation of a contract. There was no reservation of power in the act under which the Cincinnati, Cam- bridge & Chicago Short Line Railway was or- ganized, which gave authority to make ma- terial changes in the purposes for which the corporation was created, and without such a reservation, in no event could a dissenting stockholder be bound. When any person takes stock in a railroad corporation, he has .entered into a contract with the company, that his interests shall be subject to the direction and control of the proper authorities of the corporation to accom- plish the object for which the company was organized. He does upt agree that the im- provement to which he subscribed should be changed in its purposes and character, at the will and pleasure of a majority of the stock- holders, so that new responsibilities, and it may be,~new hazards, are added to the origin- al undertaking. He may be very willing to embark in one enterprise, and unwilling to en- gage in another; to' assist in building a short line railway, and averse to risking his money in one having a longer line of trans'lt. But it is not every unimportant change which would work a dissolution of the con- tract. It must be such a change that a new and different business is superadded to the original undertaking. Railroad Co. v. Cros- well, 5 Hill, 383; Banet v. Ra'llroad, 13 111. 510. The act of the legislature of Indiana allowing railroad corporations to merge and consoli- date their stock, was an enabling act— was permissive, not mandatory. It simply gave the consent of the legislature to whatever could lawfully be done, and which without that consent could not be done at all. By vir- tue of this act, the consoUdations in the plea stated were made. Clearwater, before the c-onsolidation, was a stockholder in one cor- poration, ci'eated for a given purpose; after it he was a stockholder in another and different corporation, with other privileges, powers, franchises, and stockholders. The effect of the consolidation "was a dissolution of the three corporations, and at the same instant, the creation of a new corporation, with prop- erty, Uabilities, and stockholders, derived from those passing out of existence;" McMahan V. Morrison, 16 Ind. 172. And the act of consolidation was not void because the state assented to it, but a non-consenting stock- holder was discharged. McCray v. Rail- road Co., 9 Ind. 358. Clearwater could have prevented this consolidation had he chosen to do so; instead of that he gave his assent to it and merged his own stock in the new adven- ture. If a majority of the stockholders of the corporation of which he was a member had undertaken to transfer his interest against his wish, they would have been enjoined. Lauman v. Railroad, 30 Pa. St. 46. There was no power to force him to join the new cor- poration, and to receive stock in it on the sur- render of his stock in the old company. By his own act he has destroyed the stock to which the guaranty attached, and made it impossible for the defendants to perform their agreement. After the act of consolida- tion the stock could not have any separate, distinct market value. There was, in fact. 12 OKGANIZATION OF BAILBOAD COMPANIES. no longer any stock of the Cincinnati, Cam- bridge & Chicago Short Line Railway. Meredith and his co-defendants undertook that the stock should be at par in Cincinnati, if it maintained the same separate and inde- pendent existence that it had when they gave their guaranty. Their undertaking did not extend to another stock, created afterwards, with which they had no concern, and which might be better or Worse than the one guar- anteed. It is not majferial whether the new stock was worth more or less than the old. It is sufficient that it Is another stock, and represented other interests. But it is said that the plea is defective be- cause it does not aver that the consolidation was an act done without the consent of the de- fendants. The pleadings do not aver that the defendants were stockholders in any of the roads whose interests were merged, and if they were not, it is not easy to see what right they had to interpose objections to consolida- tion, nor how their consent was necessary to carry out the object contemplated. If the plaintiff consented because they did, and it is meant to be argued on that account, they would still be liable on their contract; the answer Is, that this is not a matter to be nega- tived by the defendants, but the plaintiff should reply the fact. 1 Chit. PI. 222. It follows that the fifth plea presented a complete defence in bar of the action. In this plea there were two points, and two only, which the plaintiff had the right to tra- verse. He could deny either the act of con- solidation, or that he gave his consent to it. He could not deny both, for that would make his replication double. And if eilther fact was untrue, the defence was destroyed. The truth of both was essential to perfect the defence. But traverse can only be taken on matter of fact, and it is always inadmissible to tender an issue on mere matter of law. 1 Chit. PI. 645. The last replication does traverse a conclu- sion of law. Whether the stock of the Cin- cinnati, Cambridge & Chicago Short Line Rail- way Company was destroyed and rendered worthless and of no value, was not a question for a jury to try. If the roads were consoli- dated, with the consent of the plaintiff, then it followed, as a conclusion of law, that the stock was destroyed and of no value. The stock passed out of existence the very instant the new corporation was created. The issue, therefore, tendered by the plaintiff in his last replication, was an immaterial one, and the court did not err in sustaining a demurrer to it. But the plaintiff claims the right to have the decision of the court below on the sulti- ciency of his previous replications reviewed here. This he cannot do. Each replication in this cause is complete in itself; does not refer to, and is not a part of what precedes it, and is new pleading. When the plaintiff re- plied de novo, after a demurrer was sustained to his original replication, he waived any right he might have had, to question the correct- ness of the decision of the court on the de- murrer. In Uke manner he abandoned his second replication, when he availed himself of the leave of the court, and filed a third and last one. But the plaintiff insists that even if his replic-ation was bad, still upon the whole record he was entitled to judgment, because the first and fourth pleas were undisposed of. If an issue in fact had been joined on the fifth plea, and found for the defendants, judg- ment was inevitable for them, because the plea was in bar of the action, and the other pleas would then have presented immaterial issues, If the plea was true, being a complete defence, it would have been useless to have tried other issues, for no matter how they might terminate, judgment must still be for the defendants. The state of pleading leaves the fifth plea, precisely as if traverse had been taken on a matter of fact in it, and deter- mined against the plaintiff. "On demurrer to any of the pleadings which go to the action, the judgment for either party is the same as it would have been on an issue in facjt, joined upon the same pleading and found in favor of the same party." Gould, PI. c. 9, § 42. "And when the defendants' plea goes to bar the action, if the plaintiff demur to it and the demurrer is determined in favor of the plea, judgment of nil capiat should be entered, not- withstanding there may be also one or more issues in fact; because, upon the whole, it ap- pears that the plaintiff had no cause of ac- tion." Tidd, Prac. (4th Am. Ed.) 741-742. There is no error in the record. Judgment affirmed, with costs. OKGANJZATION OF KAILKOAD COMPANIES. 13 Consolidation, -nitli foreig:n corporation. Agreements between States. Co-operat- ing and conflicting legislation of different States. OHIO & MISSISSIPPI RAILWAY CO. T. PEOPLE. (123 111. 467, 14 N. B. 874.) Supreme Court of Illinois. Jan. 18, 1888. Appeal from circuit court, Wayne county. Ramsey, Maxwell & Matthews and Pollard « Werner, for appellant. George Hunt, Atty. Gen., for appellee. SHOPE, J. This was an information in the nature of a quo warranto, filed in the Wayne circuit court, by the state's attorney oi that county, against the Ohio & Mississippi Railway Company. A demuiTer was sus- tained as to the first, and overruled as to the second and third, counts of the information, and as to such counts respondent answered. A demurrer to the answer being interposed and sustained, respondent refused to answer further, and was adjudged guilty, as charged in the second and third counts of the informa- tion, and a fine of $1,000 was thereupon im- posed upon respondent. Motions for a new trial and in arrest of judgment having been overruled, the record is brought here upon respondent's appeal. It is charged in the in- formation that the Ohio & Mississippi Rail- way Company is a corporation chartered, or- ganized, and existing under the laws of this state, owning and operating a railroad in this state from Easit St. Louis to the Wabash riv- er, opposite the city of Vincennes, Indiana, and from Shawneetown (through Wayne county) to Beardstown; that it is governed and controlled In its corporate capacity by a board of 13 directors, a majority of whom are not citizens and residents of this state, and 12 of whom are now and have been citizens and residents of other states, contrary to the laws of this state, whereby it has forfeited its franchise, powers, and privileges. By its an- swer the railway company denied that it was guilty of the several wrongs charged against it, admitted that it was incorporated under the laws of Illinois, and said that such cor- poration was made by virtue and in pur- suance of an act of the legislature of Illinois, entitled "An act to incorporate the Ohio & Mississippi Railway Company, and for other purposes," approved February 5, 1861; that in the first section thereof, 13 persons were named incorporators of the company, and that a majority of the persons so named were non-residents of the state of lUinois, and were citizens and residents of other states; that by virtue of the same section of that act respond- ent was invested with all the corporate fran- chises and rights which had heretofore been granted to and vested in the corporation known as the "Ohio & Mississippi Railroad Company," incorporated by an act of the gen- eral assembly of the state of Illinois, entitled "An act to incorporate the Ohio & Mississippi Railroad Company, and for other purposes," approved February 12, 1851, referred to both these acts and made them parts of its answer. and insisted that, by virtue of these special acts in pursuance of which it was incor- porated, it became vested with the right to elect a majority of its directors, or all of them, from stockholders residing outside of the state of Illinois, and not citizens of Illi- nois; that in 1867, and before the adoption of the present constitution of this state, by virtue of the laws of the state of Illinois, and of similar laws in the states of Indiana and Ohio, respondent became consolidated with the Ohio & Mississippi Railway Com- pany, and owning and opei"ating a railroad leading from the Mississippi river, at East St. Louis,. Illinois, to Cincinnati, Ohio, all un- der one management and one board of di- rectors, by which consolidation the property, stock, and franchises of the old constituent corporations named became completely mer- ged in respondent, — its line of railroad being connected and continuous, and which consol- idation was in all respects in conformity with the laws of the states of Illinois, Indiana, and Ohio; that its principal business as a carrier is between St. Louis, Missouri, and Cincinnati, Ohio; that its capital stock is held and owned, excepting a few shares, by per- sons outside of Illinois, being largely held in foreign countries and in New York; that now, and for some time last past, but one of its stockholders is or has been a citizen and resident of the city of Springfield, Illinois, and that all l^s other directors are citizens and residents of other states, (giving their re- spective places of residence;) "that the ofli- cers of respondent have always been of the opinion, and have been so advised, that under its charter and consolidation, by authority of the laws of this state, with said railroad cor- poration in the states of Indiana and Ohio, the law of this state requiring a majority of the directors to be citizens and residents of this state did not apply to respondent; that it has been supported in th'ls opinion and be- lief by the fact that a majority of its directors have never resided in or been citizens of this state, which fact has been well known to the citizens and officers of this state, and to the relator in this proceeding, and still, until the filing of this proceeding, no objection has ever been made by either citizen, officer, or relat- or, and no injury has been sustained thereby by any one; that respondent has always acted in this matter in good faith, and with a desire to comply with the laws of the state as they were understood by its officers, and as they seem to be understood by the officers of the state." The principal question here presented is whether the organic law of the state is ap- plicable to appellant corporation. The con- solidation mentioned was complete in 1867, and there was at that time, neither in the- constituflon of the state, nior on the statute- books, any provision requiring that a ma- jority of the board of directors of corpora- tions similar to the Ohio & Mississippi Rail- 14 ORGANIZATION OF RAILROAD COMPANIES. way Company should be citizens and resi- dents of this state. The provision of the pres- ent constitution which Is said to be mandatory upon appellant, is as follows: "A majority •of the directors of any railroad corporation, now incorporated or hereafter to be incor- porated by the laws of this state, shall be citizens and residents of this state." It is insisted, and has been held, that the power given to a railway corporation to form a union or consolidation with another railway cor- poration is a contract between the state grant- in.a: the power and the corporation, which, after the right of consolidation has been exer- cised, cannot be withdrawn or impaired by the state. Zimmer v. State, 30 Ark. 677. See, also. Banking Co. v. Georgia, 92 U. S. G65. In the view we entertain of th'ls case it will not be necessary to discuss or determine the question whether appellant corporation ac- quired such rights by virtue of consolidation as would bring it within the 'inhibition of the constitution of the United States against the impairment of contracts by the state, and we therefore express no opinion in respect there- to. The view of this case which we regard as decisive, involves a construction of this state constitutional provision, and the determina- tion of the question as to whether appellant corporation falls Within its letter or spirit. This will necessarily involve a consideration of the status of appellant corporation at the time of the adoption of the constitution now in force. The constitution was adopted 'in 1870. and the record leaves no question but that the consolidation of the Ohio & Mississippi Railway Company of Illinois with the cor- poration of the same name existing in the state of Indiana and Ohio was consummated In the year 1867. The Ohio & Mlssissiippi EailM'ay Company of Illinois was incorporat- ed, by an act of the legislature of Illinois, in 1861. Priv. Laws 1861, p. 508. The object of the incorporation is declared to be "for the pur- pose of purchasing and taking a conveyance of all the railway property, real and personal, rights and franchises of the Ohio & Mississip- pi Railroad Company, incorporated by act of February 12, 1851, or in any part of said property, r'lghts, and franchises, either by private contract, or at any judicial sale there- of," thereafter to take place. The grant was that "the said corporation shall possess all the powers and privileges conferred on the Ohio & Mississippi Railroad Company by the act incorporat'ing the same, or by any amendment or amendments thereof, and shall be sub- ject to all provisions of said act. * * *" Thirteen incorporators were named, from whom alone the first board of directors were to be selected, and who were not, as the an- swer avers, citizens and residents of the state -of Illinois. The act of 1851, and which by reference 'in the act of 1861 is made the char- ter of the said Ohio & Mississippi Railway Company of Illinois, (Priv. Laws 1851, 89,) au- thorized the corporation to locate, construct, and mainta'ln a railroad, with one or more tracks, from Illinoistown, on the Mississippi river, (now East St. Louis,) east to the Illinois state line, "in the direction of the city of Vincennes," in Indiana. The powers of the corpoiution were vested in a board of direct- ors of not less than seven nor more than seventeen, and the first board of directors, composed of thirteen, were individually nam- ed. In addition to the other powers granted, it was provided that "said company shall have the power to unite its railroad with any other railroad now constructed, either In this state or the state of Indiana. * * *" Un- der its charter the OMo c& Mississippi Railway Company of Illinois organized and became the owner of the line of railway from East St. Louis to the Illinois state line opposite the city of Vincennes, 'in Indiana, and became vested with the powers, franchises, and priv- ileges of the Ohio & Mississippi Railroad Com- pany of 1851, and possessed and operated its ra'Ilway to and until 1867. In the year last named the Ohio & Mississippi Company of Illinois become consolidated with the Ohio & Mississippi Railway Company, an Indiana corporation, and also with the Ohio & Mississippi Railway Company, an Ohio cor- poration, whereby the consolidated corpora- tion, under the common name of the Ohio & Mississippi Railway Company, became the owner and operated a consolidated and con- tinuous line of railway from East St. Louis, in Illinois,' to Vincennes, In Indiana, and thence eastward to the city of Cincinnati, in Ohio, and the property, stock, and fi-anchises of the three constituent corporations in the three states became merged 'In the consolidat- ed corporation, the corporate powers of which were exercised by one management and a single common board of directors. And the right of the Illinois corporation thus to con- solidate its property, stock, and franchises with corporations in the states of Indiana and Oh'lo was acquired and exercised, as the an- swer avers, under and in conformity with "the laws of the state of Illinois, and of similar laws of Indiana and Ohio." . "The laws of the state of Illinois" here referred to are: (1) The act of 1851, before referred to, and which, by reference and adoption, became the char- ter of the Ohio & Mlssissiippi Railway Com- pany, incoi-porated under the act of 1861, ex- cept as the same was modified by the lat- ter act, in which, as we have seen, the Ohio & Mississippi Railroad Company was author- ized and given power "to unite 'Its railroad with any other railroad now constructed, either in this state or the state of Indiana; * * *" and (2) the act of February 28, 1854 (Laws 1854, p. 9; 1 Gross, St. p. 537, § 15 et seq.) Under this latter act railroad companies then or thereafter organized, having their termin'l fixed by law, and whose roads inter- sected by a continuous line, were "authorized and empowered to consolidate their property and stock with each other, and to consolidate with companies out of this state wherever their lines connect with the lines of such com- panies out of th'ls state." The consolidating ORGANIZATION OF RAILROAD COMPANIES. 15 companies might, it was provided, agree upon a name "of such consolidated company," and by such name should be "a body politic and corporate," .having a common seal, and in such corporate name contract and be contract- ed with, sue and be sued, plead and be im- pleaded, and "have all the powers, franchises, and immunities wh'lch the said respective companies shall have by virtue of their re- spective charters before such consolidation * * *." It seems clear to us that, under this latter act, railroad companies organized under the laws of this state, and whose lines of railway sio 'intersect as to constitute a con- tinuous line within this state, might consoli- date their property, stock, rights, and fran- chises, and thereby constitute a new corpora- tion, under a new name, possessing the prop- erty, rights, powers, and franchises of the con- stituent companies as given by their charters; and that upon the consummation of such con- solidation, the constituent companies as in- dependent legal entities would cease to exist; and that all the duties and obligations of the constituent companies, whether to the public or to private persons, would be cast upon and must be assumed and discharged by the new consolidated corporation. The power of the state to authorize the consolidation of corpora- tions of its own creation, with the effect stated, has everywhere been admitted, and many cases are to be found in the books where this principle is recognized. See Ruggles v. People, 91 111. 256, (affirmed by the supreme court of the United States, 108 U. S. 526, 2 Sup. Ct. 832;) Shields v. Ohio, 95 TJ. S. 319; Bishop v. Brain- erd, 28 Conn. 289. But does a like power ex- ist in two or more states, in respect of railway corporations incorporated by them respective- ly, to authorize the consolidation of such cor- por^ions? If so consolidated, by authority of the states of their creation respectively, what legal result follows? Is the consolidat- ed corporation a new corporation, or only an association of corporations under a common ' name? If the result be the creation of a new corporation, do the original corporations cease to exist? What property, rights, pow- ers, and franchises does the new corporation acquire, and what duties, obligations, and I'labilities to the respective states does it as- sume? This court has, in the following cases, had occasion to express itself as to the effect of such consolidations; but in every instance the question has arisen collaterally and not in a direct proceeding. The Quincy Bridge Company was incorporated by the state of Illinois, and also by the state of Missouri, for the common purpose of the construction of a bridge across the Mississippi river. The two companies entered articles of consolida- tion, which were legalized by the legislature of Illinois. In speaking of such consolida- tion, this court, in Bridge Co. v. Adams Co., 88 111. 615-619, said: "The legislatures of this state and of Missouri cannot act jointly, nor can any legislation of the last-named state have the least effect in creating a cor- poration in this ^tate. Hence, the corporate existence of appellants, considered as a cor- poration of this state, must spring from the legislation of this state, which, by its own vigor, performs the act. The states of Il- linois and Missouri have no power to unite in passing any legislative act. * * * The only possible status of a corporation acting under charters from two states is that it is an association incorporated in and by each of the states, and, when acting as corpora- tion in either of the states, it acts under the authority of the state in which it is then acting, and that only,— the legislation of the other state having no opeiution beyond its territorial limit." This was said, it must be observed, in a case where the question was whether the capital stock of the corporation was subject to taxation under the revenue laws of this state. And it was there held that the Bridge Company was a corporation within this state, within the meaning of the laws of this state imposing taxation upon domestic corporations. It does not appear from the case as reported whether the cap- ital stock which it was sought to bring under the operation of our revenue law was that which had been issued by the consolidated corporation; or, indeed, whether the articles of consolidation contemplated such an issue. Nor is it in any way important. The lan- guage employed by the court, however, nega- tives the idea that the effect of the consoli- dation was the creation of a new corporation, and affirms the doctrine that the consolida- tion was but an association of the two con- stituent corporations, the contracting corpo- rations retaining their legal existence and identity. It could, however, as affecting the question under consideration in that case, as we shall hereafter see, be of no importance whether a new corporation was created by the act of consolidation or not. This court also had before it the case of Racine & M. R. Co. v. Farmers' Loan & Tiust Co., 49 111. 331, involving the validity of a mortgage executed by the consolidated corporation upon the property in both states. The Racine, Janesville & Mississippi Railroad Company, incorporated by Wisconsin, was consolidated with the Rockton & Freeport Railroad Company, incorporated by Illinois. The latter corporation was, by its charter, authorized to consolidate its stock with that of any Wisconsin corporation. The object of the consolidation was by the articles of con- solidation declared to be "to fully merge and consolidate the capital stock, powers, privi- leges, immunities, and franchises of the two corporations." After consolidation, the legis- latures of the two states changed the names of the constituent corporations respectively to the Racine & Mississippi Railroad Com- pany. Afterwards, another Illinois corpora- tion, the Savanna Branch Railroad Company, became a party to the consolidation, and the legislature of Illinois changed its name to the Racine & Mississippi Railroad Company, and declared the several acts of consolidation le- 16 ORG^NIZA-TION or RAILliOAD COMPANIES. gal and binding. In that case it was said: "Our view of the efCect of the consolidation contract between the Rockton Company and the Wisconsin Company, which we hold to have been legally made, is briefly this: While it creates a community of stock, and of interest, between the two companies, it did not convert them into one company in the same way and to the same degree that might follow a consolidation of two companies with- in the same state. * * * But the contract of consolidation, and the subsequent legisla- tion, created substantially a new corporation with a new name; but such corporation, in a legal point of view, was and has remained a distinct corporation in each state, though the two have a common name, common stock, and a common board of directors. There is a Wisconsin corporation under the name of the Racine & Mississippi Railroad Company, and there is an Illinois corporation of the same name, and the original corporations in each state have been transmuted into these." And upon this view the validity of the mortgage was sustained. It is apparent that precisely the same result was reached as if the court had held that a new corporation had been created by the articles of consolida- tion. We do not therefore consider the case as in conflict with the views hereafter ex- pressed. The position assumed by the court in the cases referred to, that a corporation cannot be created by the joint legislation of two states so as to be the same legal entity in both states, may be conceded. Joint acts of legislation by two or more states are im- possible; and one state cannot, without the consent of congress, "enter into any agree- ment or compact with another state." Const. U. S. art. 1, § 10, cl. 3. But it does not fol- low, as is assumed in the case last referred to, that a corporation, de jm'e as well as de facto, cannot be created with the consent and under the authority of two or more states, by the voluntary consolidation of coiiporations created and existing by virtue of the laws of such states respectively. The contrary view seems to have been entertained by this court in the last case before it, (Cooper v. Corbin, 105 111. 224-231,) where it was said: "The Indianapolis, Bloomington & Western Railway Company was formed by the con- solidation of the Indianapolis, CrawfordsvUle & Danville Railroad Company, a coiTporation created under the laws of Indiana, and the Danville, Urbana, Bloomington & Pekin Rail- road Company, a corporation organized under the laws of this state. The consolidation was effected in conformity to the charter of the last-named company and the laws of this state, and the new corporation, by virtue of the consolidation, became clothed with all the rights, privileges, and powers which had been conferred by the laws of the state upon the Danville, Urbana, Bloomington & Pekin Rail- road Company." In this case, as in the Qulncy Bridge Company Case, none of the adjudged cases are referred to, and the court had no apparent intention of laying down a rule which should bind the court in a di- rect proceeding, such as the one now under consideration. We have, therefore, felt at lib- erty to consider the authorities. A careful examination has satisfied us that the current and weight of authority establish the prin- ciple that, upon the consummation of such consolidation, authorized by the laws of the states creating the constituent corporations, a new corporation will be created. Railway Co. V. Berry,' 113 U. S. 465, 5 Sup. Ct. 529; Shields v. Ohio. 95 U. S. 319; Graham v. Railroad Co., 118 U. S. 161, 6 Sup. Ot. 1009; Bridge Co. v. Mayer, 31 Ohio St. 317; Bishop V. Brainerd, 28 Conn. 289; 2 Mor. Corp. §§ 1000, 1001. The acts of the states authorizing and consenting to the consolidation are acts of incorporation. State v. Maine Cent. R. Co., 6a Me. 488, (affirmed by the supreme court of the United States, 96 U. S. 499.) And the new corporation will possess, necessarily, every requisite corporate attribute. Its cap- ital stock, corporate name and organization, board of directors, officers, and managers will be such as may be authorized by the ar- ticles of consolidation and the acts of the re- spective states. The new corporation will, as was said in Minot v. Railroad Co., 18 Wall. 206, become vested with "the rights and privi- leges which the original companies had pre- viously possessed under their respective char- ters,— the rights and privileges in Maryland which the Maryland company had enjoyed, and the rights and privileges in Delaware which the Delaware company had there en- joyed, — not to transfer to either state and en- force therein the legislation of the other. * * * The new company stood, in each state, as the original company had previously stood in that state, invested with the same rights and subject to the same liabilities." Unlike a corporation created by a single state, which camiot migrate or legally exist outside of the territorial limits of the state of its creation, the consolidated corporation, having , a capital stock which is a unit, and only one set of stockholders, who have an interest by virtue of their ownership of shares of such stock in all its property everywhere, and a single board of directors, will have its domi- cile in each state; and the stockholders, di- rectors, and officers can, in the absence of any statutory provision to the conti-ary, hold meetings and transact corporate business in either of the states; though, in its relation to either state, the consolidated company will be a separate corporation, governed by the laws of that state as to its property therein, and subject to taxation in conformity with the laws of such state, and to all the police power of the state in respect of its property and franchise within such state. Graham v. Railroad Co., 118 U. S. 161, 6 Sup. Ct. 1009; Bridge Co. v. Mayer, 31 Ohio St. 317; Sprague V. Railroad Co., 5 R. I. 233; Pierce, B. R. 20; Minot v. Railroad Co., supra. And the same rule, as to domicile, seems to apply to a case where two corporations are created by adjoining states for the improvement of a ORGANIZATION OF RAILROAD COMPANIES. 17 river forming the common state boundary. "Under the joint act of two states, the powers conferred to be exercised for the benefit of both may be exercised in either. The act does not require the business to be done in either state, as regards the action of the di- rectors; the worii is to be done in both." And so it was held the corporation might be sued in either state. Culbertson v. Navigation Co., 4 McLean, 544, Fed. Cas. No. 3,464. And to the same effect is Chicago & N. W. R. Co. V. Chicago & P. R. Co., 6 Biss. 219, Fed. Cas. No. 2,665. Whether, upon the creation of the consoli- dated corporation, the constituent corpora- tions of the different states cease to exist, the authorities are, in the main,, agreed. They do not necessarily cease to exist, although they lie dormant, and their property, rights, powers, and franchises are possessed and ex- ercised by the new consolidated corporation. Farnum v. Canal Co., 1 Sumn. 62, Fed. Cas. No. 4,675; Tagart v. Railway Co., 29 Md. 557; Banking Co. v. Georgia, 92 U. S. 667. "In regard to the effect of such a consolida- tion, it does not necessarily follow that it would extinguish, to all intents and purposes, the existence of those coiiporations. It is possible for them still to subsist for certain purposes, notwithstanding they should be thus amalgamated." Bishop v. Brainerd, 28 Conn. 289. If we are correct in this, upon the consummation of the consolidation in 1867 of the three companies named into ap- pellant corporation, it became a new corpora- tion, existing, by virtue of the act of consoli- dation, under the sanction and by the au- thority of the three several states in which the constituent companies had been chartered, while its charter privileges, powers, and obli- gations within the state of Illinois were pre- scribed and limited by the charter of the Il- linois corporation entering into the consolida- tion. While therefore, in a sense, it may be said that appellant is incorporated under the laws of this state, it must also be said it ex- ists by virtue of the laws of the states of Illinois, Indiana, and Ohio, authorizing and consenting to its organization. The corpora- tion chartered by the act of 1861 was merged in the consolidation of 1867; and its right to exercise corporate functions must lie dormant, at least during the existence of the consolida- tion. This was the status of appellant, and of the constituent company in Illinois, at the time of the adoption of the constitutional pro- vision before refeiTed to and quoted. This consiitutional provision, by its terms, applies only to such railroad corporations as are "now incorporated or hereafter to be in- corporated by the laws of this state." It would seem that no construction of these words was necessary to demonstrate the inap- plicabilitj' of the constitutional provision to appellant corporation, or those standing in like relation to the state. It Is Insisted, how- ever, by appellee, that as appellant corpora- tion derives its vitality from the act of the B A LDW. SEUCAS.R.K. — 3 state consenting to the consolidation, and its charter powers and duties within this state are measured by the act of 1801, creating the Ohio & Mississippi Railway Company of Illinois, it falls within the spirit of the con- stitution, and must, therefore, have a ma- jority of its board of directors citizens and residrjits of this state. The object of con- struction, as applied to a written constitution, is to give effect to the intent of the people in adopting it This intent is to be found in the Instrument itself from the words and phrases employed. The presumption is that the language employed was intended to have its ordinary and usual meaning, and to be sufficiently perspicuous within itself to convey the intent. And "where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction." U. S. v. Fisher, 2 Cranch, 358; Cooley, Const. Lim. 68. And it is only when, after a consideration of the language employed, there are still doubts and ambiguities as to the meaning of the law- making power, that extrinsic circumstances may be resorted to in aid of construction. As has been seen, appellant coi-poration is no more a corporation existing under the laws of Illinois, than it is a corporation chartered by the laws of Indiana or of Ohio. To hold that the constitutional provision is applicable to appellant corporation, would be to deter- mine that the framers of that instrument, in drafting and submitting this section, and the people in adopting it, intended that the state of Illinois should break faith with her sister states, and should become a despoiler of private right; for, on the faith of the leg- islation of Illinois, the other states had, by like legislative action, authorized corpora- tions existing as domestic corporations in those states to unite their property and fran- chises with a corporation of this state, where- by both public and private rights were great- ly affected. Upon the consummation of the consolidation, bonds and stocks of the new consolidated corporation were issued, secured by mortgages upon the consolidated line, Its property and franchises, and the liens on the constituent lines discharged. The terms and conditions of the articles of consolidation are not set out in the answer; but it is manifest, from what is disclosed, that the legal effect of the consolidation, which it is averred was con- summated, was to transfer to the new corpo- ration the property of the three constituent companies wherever it might be located. When the new corporation issued its stock, it was put upon the markets of the world, and the persons bectoming owners thereof acquired an interest, measured by the shares of stock owned by them respectively, in the franchise and property of the new corporation. No re- striction was placed upon its ownership, and all persons everywhere were at liberty to acquire it. Although the corporation was a 18 OKGAKIZATION OF BAILED AD COMPANIES. quasi public one, its property was the prop- erty of its stocliliolders, and subject to the general relation and police power of the states in which the corporation was situate. The owners of the railway property stood on an eaual footing with the owners of other species of property as to its right of control and management. An essential element of the consent and authority given by the state to the consolidation was the right of the Illinois coi-poration to acquire, under the laws of the other states named, an interest in propei-ty situate beyond the limits of this state, and forming an integral part of a great railway thoroughfare, with a right to issue its bonds and stock, based on the property of the railway in the three states, whose do- mestic corporations were the constituent ele- ments of such new company. The object to be attained was the corporate union of prop- erties and interests in different states, under the management and control of a single board of directors, thereby securing the concerted and harmonious operation of a through line of railway from St. Louis to Cincinnati. If effect is to be given to the words of the con- stitution as contended by appellee, the con- solidated corporation must necessarily be dis- solved, unless the states of Ohio and Indiana acquiesce in the assumption by this state of. jurisdiction over the personnel of the direct- ory; and, also, unless the owners of appel- lant's stock consent to become citizens and residents of Illiuois in sufficient number to constitute a majority of the directory, and a majority of the stockholders consent to com- anit the interests of the corporation to such resident stockholders. If all this could not "be attained, appellant must forfeit its charter in this state, and its property here as w«ll as its. interest in this continuous line of railway be lost to those interested therein. Such con- struction would place this state in the condi- tion of repudiating its acts, upon the faith of which sister states have acted, and upon which private interests have been acquired. And although states may not enter into form- al treaties and conventions, or agreements and compax;ts, they may, and we venture tb say should, be exemplars of good faith and fair dealing, by faithfully observing such obli- gations as legitimately spring from their co- operating legislation. The framers of the constitution must be presumed to have known of the status of appellant and its relation to the state at the time the language referred to was selected, and if they had intended the dissolution and destruction of appellant cor- poration as then existing, it is also to be pre- sumed they would have used language ex- pressive of such intent. The language em- ployed applies only to corporations existing by virtue of the laws of this state, and finds ample scope for application to the multitude of coiTporations thus existing. No reason has been suggested, nor has any occurred to us, for extending the language of this constitu- tional provision beyond its plain and obvious meaning; and especially would this be so, In view of the results that would follow the more latitudinous construction contended for by appellee. What would be the effect upon like corporations brought into existence since the declared policy of the state, as expressed in this constitutional provision, Is not before us, and need not be discussed or determined. We are of opinion that appellant corpora- tion does not fall within the constitutional provision quoted, and that the circuit court, therefore, erred in sustaining the demurrer to the answer, and in rendering judgment against appellant. The judgment will there- fore be reversed, and the cause remanded. SCOTT, J. I am not prepared to concur in this opinion. MAGllUDBR, J. I do not concur In this opinion. The doctrine which It announces Is, to my mind, an exceedingly pernicious one. The tendency of Its reasoning Is to exonerate railroad companies from their obligations to obey the laws and constitutions of the indi- vidual states if they make arrangements for consoUdating and uniting their lines with railroads in adjoining states."^ Our constitu- tion of 1870 says: "A majority of the direct- ors of any railroad corporation, now incor- porated or hereafter to be incorporated by the laws of this state, shall be citizens and resi- dents of this state." The meaning of these words is plain. The idea conveyed by them Is as clearly expressed as any idea can be expressed by human language. The Ohio & Mississippi Railway Company was a railroad corporation, incorporated by the laws of this state when the constitution of 1870 was adopt- ed. In my opinion It should be required to obey the mandate of the oi-ganic law as above quoted. The charter granted to it by the state of Illinois in 1861 contained no provi- sion that a majority of Its directors might or should be non-residents of this state, or citizens and residents of other states than Illinois. There was no contract between it and the state of Illinois that a majority of its directors should be citizens and residents of other states. The existence of such a con- tract cannot reasonably be presumed, either from the fact that a majority of the original incorporators named in the charter happened to be non-residents of Illinois, or from the fact that there was, in 1867, a consolidation with other i-oads In adjoining states under legislation, then existing, which permitted such consolidation. Therefore it cannot be said that the enforcement of the constitutional provision against appellant will impair the obligation of a contract. If the views of this decision are to prevail, then any corporation can defy the constitution and laws of the state which gives It Its existence by uniting Itself to some corporation in another state, and then claiming to be the creature of two states. Cf. Atwood V. Shenandoah Valley R. R. Co., 85 Va. 9G6, 989, 9 S. B. 748. DlRECTOliS. 19 Tldnciary position. Public policy. If cestui que trust repudiates act of trustee, he caiuxot retain benefits received. Collateral security to director. Buying bonds of company beloiv par. Notice to purchaser. Pledgee. Authority of company to issue bonds. Foreclosure. Proof of mortgage debt. Bondholders' rights. Security for void note. Bond pledged for salary and office rent. Irreg- ular sale by pledgee. National banks: unlamrful contracts. DUNCOMB et al. v. NEW YORK, HOUSA- TONIC & NORTHERN R. R. CO. et al. (84 N. Y. 190.) Court of Appeals of New York. March 1, 1881. Appeals from order affirming, reversing and modifying certain portions of an order. Action to foreclose a mortgage executed by the defendant, the New York, Housatonic and Northern Railroad Company, to plaintiffs as trustees for bondholders. A referee was appointed to ascertain the amount due on account of the bonds and the nature and extent of the interest of the bondholders and to report with the evidence. It appeared that a corporation was organ- ized under the general railroad act in 1863, having the same name as the corporation de- fendant. Said corporation in 1868, made its mortgage to plaintiffs as trustees for $2,500,- 000. In 1872, said corporation was consoli- dated with the Southern Westchester Rail- road Company into the corporation defend- ant In October, 1872, it made a mortgage for $2,000,000 and exchanged its bonds se- cured thereby to the amount of about $183,- 500, for bonds issued for the old corporation. The referee found, as to the claims of Louis D. Rucker, that he produced bonds to the amount of $1,117,000. That $810,000 of these bonds were issued to him, as security for previous advances by him to said railroad •company, amounting to $81,000. That $250,- 000 of said bonds were issued to the New York Loan and Indemnity Company as collat- eral security for a loan of $25,000. That the ■claim of said New York Loan and Indemnity Company was placed in judgment against the railroad company, and the said judg- ment was assigned to Rucker for $12,500. That the balance of said bonds were ob- tained by Rucker from the Bessemer Com- pany, never having been Issued to him or delivered to him by the railroad company, I)ut were taken and held by him as security for certain advances made by him from time to time. These advances were made on the joint obligations of the railroad company and the Bessemer Company, the latter having a contract for the construction of the road of the former. At the time of these advances Rucker was president of the railroad com- pany. The referee held that Rucker was en- titled to prove said $810,000 of bonds only to the extent of his claim of $81,000 and in- terest thereon. That he was entitled to prove the bonds assigned to him by the loan and indemnity company only to the extent of the $12,500 paid by him with Interest. That the balance of bonds claimed by him were of no value in his hands and he was not entitled to receive any payment thereon. The other facts are set forth in the opinion. John M. Whiting and Henry W. Johnson, for plaintiffs. Jesse Johnson and E. EUery Anderson, for defendants. FINCH, J. It is not possible in this case to go much beyond a brief statement of our conclusions. To discuss all the questions raised by the numerous appeals, through their voluminous and complicated details, would prolong an opinion beyond what is either necessary or profitable. We have reached the conclusion that the appellant, Rucker, should be allowed to prove in full all of the $810,000 of bonds, which he holds as a pledge, to secure the debt due him from the railroad company of $81,000 and interest, and which he can produce for that purpose; and is entitled to share in the distribution upon that basis to the extent of such indebtedness. It is not intended to deny or question the rule that whether a di- rector of a corporation is to be called a trus- tee or not, in a strict sense, there can be no doubt that his character is fiduciary, being intrusted by others with powers which are to be exercised for the common and general interests of the corporation and not for his own private interests, and that he falls there- fore within the doctrine by which equity re- quires that confidence shall not be abused by the party in whom it is reposed, and which it enforces by imposing a disability, either partial or complete, upon the party in- trusted to deal, on his own behalf, in respect to any matter involving such confidence. Hoyle V. Railroad Co., 54 N. Y. 328; Gardner V. Ogden, 22 N. Y. 327; Twin Lick OU Co. V. Mabury, 91 U. S. 587; Smith v. Lansing, 22 N. Y. 531; Railway Co. v. Blaikie, 1 Macq. 461, per Lord Cranworth. Nor is it at all questioned that in such cases the right of the beneficiary or those claiming through him to avoidance does not depend upon the question whether the trustee in fact has acted fraud- ulently, or in good faith and honestly, but is founded upon the known weakness of hu- man nature, and the peril of permitting any sort of collision between the personal in- terests of the individual and his duties as trustee, in his fiduciary character. Davoue V. Fanning, 2 Johns. Oh. 260. But the rule was adopted to secure justice, not to work Injustice; to prevent a wrong, not to substi- tute one wrong for another; and hence have arisen limitations upon its operation, cal- culated to guard it against evil results as inequitable as those it was designed to pre- vent. Thus, the beneficiary may avoid the act of the trustee, but cannot do so without restoring what it has received. York Co. v. Mackenzie, 8 Browh, Pari. Cas. 42. To cling to the fruits of the trustee's dealing while seeking to avoid his act; to take the benefit 20 DIRECTORS. of his loan, and yet avoid and reverse its security, would be grossly inequitable and unjust. It would turn a rule designed as a protection into a weapon of offense and in- justice. And where the trustee's act con- sists, not in possessing himself of the prop- erty of the beneficiary as owner, but in tak- ing collateral security for a debt honestly due him, or a liability justly incurred, the rule can have no application, since the pay- ment of the debt or the discharge of the liability is an essential prerequisite of the avoidance. And this is true whether the pledge be taken for a present or precedent debt. In either case the equity to be re- garded equally exists. It is upon this ground that the case of Smith v. Lansing, 22 N. Y. 520, stands. The collateral taken there was after the creation of the liability, and we held the transaction valid. The ground of the decision was distinctly stated to be that the association had received the direct bene- fit of the several amounts of money to secure which the bonds were given, and the credit- ors had indirectly received the benefits of the same by the consequent increase of the as- sets; and that, upon the application of the beneficiary or its receiver, the trustee should be permitted to set up any equities which existed, entitling him to retain the property, either absolutely or as security for the mon- eys advanced or liabilities incurred. Since therefore, in the case of a pledge delivered as security for a just and honest debt, the principal may always redeem upon payment, and the rule of equity is in no respect dif- ferent, we do not see that it has any applica^ tion, or can in any respect modify the legal relation of the parties. The pledge of Eucker and its validity Is Mowever attacked from another and a dif- ferent direction. It is argued that the right to make the mortgage under which the bonds were issued is given by the statute (Laws 1850, c. 140, § 28, subd. 10), and is limited to an authority, "from time to time, to borrow such sums of money as may be necessary for completing and finishing, or operating their railroad, and to issue and dispose of their bonds for any amount so borrowed, and to mortgage their corporate property and fran- chises to secure the payment of any debt contracted by the company for the purposes aforesaid." It is then argued that the rail- road corporation had no right to pledge its bonds as security for a precedent debt, as was done in the present case. But if the precedent debt was contracted In the process of borrowing money for the construction or operation of the railroad, we do not see that the purpose of the statute is at all violated or avoided. Its terms do not require that the borrowing and the issuing of the bonds should be simultaneous acts. The former may naturally and properly precede the lat- ter. In the present case there is neither proof nor intimation that the loan of Rucker was for a purpose outside of the statute, but on the contrary all the facts indicate that the money he advanced went actually inta the construction of the road. We conclude therefore that he is entitled to prove so many of the $810,000 of bonds as he holds, and can produce as pledgee, and share in the distribution accordingly up ta the amount of his debt. It was error to reject the bonds held by Rucker as the assignee of the loan and in- demnity company, and those which he re- ceived as a pledge from the Bessemer Com- pany. The transactions relating to these bonds occurred after he had ceased to be an officer' of the railroad company, and when he occupied toward it no relation of trust or confidence which could, on any theory, ex- pose his action to scrutiny or criticism. He dealt therefore like any other stranger,, and is entitled to prove such of these bonds as he holds as pledgee and can produce for that purpose, and receive the dividends there- on to the amount of the debts respectively which the bonds were pledged to secure. The objection made to the title of the loan and indemnity company that^t violated the law in discounting the note of $25,000, and. so the pledge falls with It (Rev. St. pt. 1, tit. 20, c. 20, §§ 1, 5), is answered by a reference to the charter of the company (Laws 1870,. p. 1803), which authorized it to "advance moneys, securities and credit upon any prop- erty, real or personal," and by our recent decisions that even if the note discounted was void, the loan and its security were valid and capable of being enforced. Pratt V. Short, 79 N. Y. 437; Pratt v. Eaton, 79- N. Y. 449. We see no reason to disturb the conclusion arrived at by the referee and affirmed by the general term as to the bonds of Henry W.. Johnson, amounting to $40,500. His owner- ship is assailed by Rucker, who claims that he lacks forty-two bonds of those originally pledged to him, and that they now appear in Johnson's possession. The latter received them from one Ball, who was a contractor, and who got them from the railroad com- pany in settlement of his account. As Ruck- er at one time surrendered his pledged bonds, and devoted them to the construction of the road, so that it was possible for Ball to- receive them rightfully, we do not see that the title of Johnson is imperfect, or that Rucker has established any paramount claim. Artemas S. Cady was found by- the referefr to be the owner of $31,000 of the bonds, and the pledgee of $34,000 more, which last were held as collateral to a loan of $5,000 and interest. The loan was through the Besse- mer Company, to whom the bonds had been promised upon their contract for construc- tion. The referee allowed the bonds owned to be proved in full, and those held in pledge also in full, but limited the dividend thereon to the amount of the loan and interest. Inadequacy of consideration, and an al- leged inability of a railroad corporation to DIBECTOUS. 23 apply its bonds by way of pledge, at least as security for a precedent debt, were the only grounds of objection urged. We do not think they are sound. Since Cady was neither of- ficer nor director, and owed no duty by vir- tue of such relation to either the Bessemer Company or the railroad, he had unques- tionably the right to take as large a "mar- gin" for his loan as the borrower was willing to grant. Nor can we discern any valid reason why a i-ailroad corporation may not dispose of its bonds by way of pledge as well as of sale, and in the absence of proof that the proceeds of the loan were, with the knowledge of both parties, to be applied to some purpose not authorized by the statute permitting their issue, we can see no reason, as has already been said, why they might not be used as a pledge to secure an indebt- edness already existing. We agree therefore as to these bonds with the conclusion of the referee. Charles D. Bailey bought $10,000 of the "bonds of the old company from E. F. Mead, who was at the time one of its directors. After the consolidation Bailey was allowed, upon the surrender of his old bonds, to re- ceive an equivalent amount of the new ones. It is objected that Mead bought these bonds of his company at fifty-one cents on the •dollar, which is probably time; that being a •director he could not thus buy below par ex- cept at the peril of avoidance by the courts upon the application of the corporation, which must be conceded (Coal Co. v. Sherman, 30 Barb. 565; Butts v. Wood, 37 N. Y. 317; Cole- man V. Railroad Co., 38 N. Y. 201); that his title was therefore defective, which as be- tween himself and the company, may be gi-anted; and that Bailey, being also a direct- or, was not protected in his purchase. The difficulty is an utter absence of proof as to the last material fact. We do 'not know the date of Bailey's purchase. It may have been "before he was elected director. If so, there was nothing to affect his position as a pur- chaser for value and in good faith, unless the fact that he knew Mead to be a director was enough to put him on inquiry and charge him with constructive notice of the defect in the title. We cannot so decide. A director may be the lawful and honest holder of the bonds of his company. Harpending v. Munson, 91 N. Y. 652. There is no presumption to the contrary. The fact Is not even just ground of suspicion. The referee therefore properly allowed the $10,000 of bonds to be proved in full. As to the remaining $1,500 our conclu- sion is different. They were plainly a bonus, taken by Bailey, wnile a director, on his stock subscription, and for which he paid nothing. His attempted reversal of the pro- cess is wholly ineffectual in the face of the proved action of the company authorizing the bonds to be given as a bonus, instead of the stock. We cannot sustain this transaction. "Very likely the stock was worthless, but that does not palliate or excuse the proceeding. It is true the bonds were exchanged for those of the new company, and that fact is relied upon to make him a holder for value and as a ratification by the company. But either view is answered by the fact that he was a di. rector when the exchange was authorized and when it was made. He had the power and the opportunity to aid in an effort to ratify his previous wrong, while his obvious duty as an ofiicial was exactly the revei-se. He had full knowledge of all the facts and did not act in good faith. The $1,500 of bonds there- fore cannot be proved. These views involve in the same fate the bonds of both Hall and Benedict. They each received their bonds as a bonus while they were directors of the company, and remained such when the new bonds were made and au- thorized to be exchanged. It is said in the opinion of the general term that the bonds of Hall were not disputed. That is a mistake. Their allowance by the referee was expressly excepted to on behalf of Rucker. The bonds of Austin Stevens were properly allowed to be proved. He bought them of Duncomb who was a director, and whom he knew to be such, but did not know how Dun- comb obtained them, or of any defect in his title. Those of Daniel H. Temple for $5,000 were allowed by the referee but rejected by the general term. They were taken by him of Duncomb in pledge for a precedent debt. As a consequence he cannot be deemed a holder for value, and must be held to have taken no better title than that of his pledgor. Taft v. Chapman, 50 N. Y. 445; Coddington v. Bay, 20 Johns. 645; Stalker v. McDonald, 6 Hill, 93; Weaver v. Barden, 49 N. Y. 286. The ti- tle of Duncomb was vulnerable. He got his original bonds from the company, partly for alleged salary, partly at fifty-one cents on the dollar, and partly as a bonus for stock subscription. He was a director in the old company while thus obtaining the bonds and a director in the new company when the ex- change of securities was made. His title therefore was bad and that of his pledgee must fall with it. As to the bonds of Joshua C. Saunders, there appears to be no doubt that he was the actual owner and holder of $6,000 of them. The referee so finds, and the evidence war- rants his conclusion. The balance of $21,000 were held by him as collateral to a note of $1,000. Pending the inquiry before the ref- eree the pledge was foreclosed by a sale at auction, and Saunders testifies that through such sale he became the owner. His testi- mony • is, "these bonds I now own by sale under the power given in the note under which they were hypothecated." That is all we know about it. What the terms of the note were; whether before sale there was a demand of payment and opportunity to re- deem (Milliken v. Dehon, 27 X. Y. 364; Law- rence V. Maxwell, 53 N. Y. 19); whether the sale was on notice or not, and who became DIRECTORS. tlie puichaser, we are left to imagine. We are perliaps bound to assume from what is shown that he bought them In at the sale. He does not assert any other or difEerent title. If so, he must still be treated as pledgee since he had no right to buy. Bryan v. Baldwin, 52 N. Y. 232. The referee correctly decided that these bonds held as collateral could be proved in full, but the dividend payable upon them should be limited to the amount of the debt. The pledge appears to have been for the pres- ent advances, so that Saunders was a holder for value. Durbrow v. McDonald, 5 Bosw. 130; Winne v. McDonald, 39 N. Y. 233; Mc- Neil V. Bank, 46 N. Y. 325. The modifica- tion by the general term which tended to de- stroy his margin was erroneous. In the case of the National City Bank we think the referee was wrong, and the modi- fication made by the general term was also erroneous. The bank loaned $35,000 to George W. Mead, who at the time was a dii'ector in the railroad corporation, and known to be such, taking $70,000 of the bonds as collateral. There is no proof that the bank or any of its otflcers had any knowl- edge of a defect in his title. That they knew him to be a director was not enough, as we have already said, to put them on inquiry. It is further claimed however that the bank, having a capital of $300,000, violated, the law in making its loan to Mead of $35,000. Rev. St. V. S. §§ 5200, 5239, "National Bank Act." The penalty of such violation is fixed by the act itself, and consists in proceedings against the franchise of the bank, and a lia- bility for damages of the offending oificers. As to this question, which arises imder the federal law, and respects corporations created by its authority, we must follow the rulings of the federal courts, and those determine very clearly that the contract of loan was not invalid but may be enforced. Gold Min. Co. V. National Bank, 96 U. S. 640. As to the claim of John .1. Studwell for $70,000 of bonds, we must be guided by the findings of the referee, that Studwell, by assignment from Cornell, the Park Bank and the National Citizens' Bank, acquired their rights to the debts held by them respectively, and the bonds pledged as collateral. His ti- tle as pledgee, derived from these sources, has not been successfully attacked; and the referee, instead of Umiting him to the proof of bonds equal to the debts secured, should have allowed him to prove all the bonds and receive a dividend thereon to an amount not exceeding the amount of the debts for which they were held as collateral. The claim of the East Eiver National Bank should be corrected in the same way. It should be allowed to prove all its bonds and share in the distribution to the amount of the debt for which it holds them as security. The bonds of Eliza Hatfield, held by her to the amount of $20,000, were allowed by the referee to the extent of $2,137, and no more. This was the amount found due upon the debt for which the bonds were held as collateral. The referee's finding was corrected at special term, in accordance with the exception filed on the claimant's behalf, and it was deter- mined that she held $13,000 of the bonds as collateral, and should be entitled to receive their proper dividend up to the sum of $2,- 352.65, and owned $8,000 of said bonds ab- solutely. There is evidently still an error,, for the two sums make $21,000 of bonds in- stead of $20,000, which was the whole amount. On examining the exception, which was al- lowed by the special term, it is evident that the collateral bonds were 1,087 to 1,098, both inclusive, or $12,000 instead of $13,000. On this claim therefore the $8,000 of bonds should be proved in full, and also the remain- ing $12,000; but on these last no dividend should be paid beyond the stmi of $2,352.65. The bonds of George W. Mead, to the amount of $19,500, were disallowed by the referee, but allowed by the general term, at the amounts said to have been actually paid by him. The evidence leads us to prefer the conclusion of the referee. It is extremely doubtful whether Mead paid anything what- ever for the bonds. His position as director, and the manner in which he sought to use it for his own benefit, make it very clearly our duty to avoid the whole transaction and affirm the conclusion of the referee. As to the Grocers' Bank, it is conceded by the counsel for the receiver that we can do no more than affirm the conclusion of the gen- eral term. The claim of William R. Kirkland was re- jected both by the referee and the general term. He was elected president of the rail- road company in 1873 and his salary fixed by a resolution of the board of directors at $5,000 per annum. The company failed to pay and gave him its notes for $3,500 and $7,000 of the mortgage bonds as collateral. The salary was honestly due. It was a just debt against the company. The latter has no possible groimd of defense against it. Why might not such a debt, fairly and hon- estly incurred, in the absence of means of payment, be secured by the pledge of the bonds? Grant that the creditor's ofllcial posi- tion should awake scrutiny and sharpen crit- icism. Yet the right of the officer to a fair compensation which has been honestly earn- ed is as clear as that of a stranger. His sei-v- ices were as necessary to the construction of the road as those of the laborer who laid the rails. The president took the bonds merely in pledge. The right of redemption remain- ed. The company could at any time have re- possessed its bonds upon the condition, sure- ly equitable, of paying the debt it owed. No undue or improper advantage was obtained. We are of opinion therefore that Kirkland is entitled to prove his bonds, and share in the distribution on that basis. The Seaman's Bank for Savings also ap- peals from the order which excludes it from the benefit of $2,000 of bonds held as col- DIRECTORS. 23 lateral. It appeare that the company was indebted to the bank for rent, and these bonds were turned out as securitj'. The bank had the right to demand and receive them. No possible ground of objection oc- curs to us except an assertion that such use of the bonds was not justified by the lawful purposes of their issue, and the perversion was of course known to the pledgee. But such a construction would be altogether too rigid and narrow. A business office was es- sential and necessary and fairly embraced within the authority to issue bonds for the purpose of building, operating and maintain- ing a railroad. It was a necessary and in- dispensable aid to the end sought to be ac- complished. As the bank was merely a cred- itor, it had the right to insist upon security for its rent, and having received a pledge of the bonds, to hold them, and prove them to their full amount, and receive a dividend there^ ion, not exceeding the amount of their debt. We are satisfied with the conclusion reach- ed as to the bonds of Mordecai M. Smith. As to $9,000 of them he was found to be pur- chaser and owner and permitted to prove tliem as such. As to the larger amount, all parties seemed to concur in treating the al- leged title of Wiley, obtained upon a sale of collateral at auction, as not affecting results. To give it effective force in the absence of definite proof as to its regularity and pro- priety, and under the circumstances of sus- picion which surround it, would hardly be justifiable; and since all his rights were as- signed to the parties for whom he evidently acted. It is proper to dismiss It from consid- eration, and treat the case as if he had not Intervened. The firm of Mead & Clark made certain advances to the railroad company up- on the faith of these bonds pledged with them as collateral security. Since both were di- rectors the transaction, even if open to crit- icism, and liable to avoidance, was modi- fied by the further fact that the bonds were pledged for actual advances, and therefore the avoidance could ouly be made upon con- dition of the repayment of the advances. Mead & Clark could assign to Smith their debt due from the company and the collateral with it, though not as their own property or in derogation of the rights of the original pledgor. Nash v. Mosher, 19 Wend. 431; White V. Piatt, 5 Denio, 269; Hays v. Riddle, 1 Sandf. 248; Lewis v. Mott, 36 N. Y. 395. By the assignment to Smith he acquired the rights of Mead & Clark to the extent of their advances, and was properly allowed to prove his bonds as security for that amount. We should modify the orders of the special and general terms to correspond with these views if the facts before us would admit of so doing with absolute accuracy; but as we can- not say what bonds may or may not be pro- duced and proved under our rulings we re- verse the orders of the special and general terms and remand the case to the special term for a further . hearing, costs to be ad- justed below. All concur. Ordered accordingly. Cf. Duncomb v. New York, Housatonic & Northern R. R. Co.. 88 N. Y. 1. 24 DIRECTORS. -""'"■ ^'•'%'a:.7:^'T:^tss:.'^'-:^^-^"^"^^' by vote; by majority. Igno- actual fraud. . Ratification by acquiescence of shareholders ranee of facts. Presumption of knowledge. installment of said interest having been paid Afterwards SAN DIEGO, OLD TOWN & PACIFIC BEACH R. R. CO. v. PACIFIC BEACH CO. (L. A. 52.) (44 Pac. 333.) Supreme Court of California. March 24, 1896. Department 2. Appeal from superior court, San Diego county; George Puterbaugh, Judge. Action by the San Diego, Old Town & Pa- cific Beach Railroad Company, a corporation, against the Pacific Beach Company, a cor- poration. From a judgment for plaintiff, and from an order denying a new trial, defend- ant appeals. Affirmed. McDonald & McDonald, for appellant. Gib- son & Titus, for respondent. McFARLAND, J. This is an action upon two promissory notes made by defendant to plaintiff,— one for $15,000, and the other for $1,500; the latter being for interest due upon said first-named note. Judgment went for plaintiff, from which, and from an order de- nying a new trial, defendant appeals. Each of the parties is a corporation. The respondent owns and operates a railroad from a certain point in the city of San Diego to another point in said city, about 10 miles dis- tant, known as "Pacific Beach"; and it is the only railroad running to the latter point. The appellant is a real-estate company own- ing a large tract of land at said Pacific Beach, and engaged in subdividing, improving, and selling said land by lots and blocks. In July, 1888, the two coiporations entered Into a written contract, by which respondent cove- nanted that, in consideration of certain sums of money to be paid it by appellant, it would operate its road between said points for two years; that, during said time, it would run at least four trains daily, at such times as appellant should direct, the appellant to have the right to change its directions; that it would charge for passenger fare not exceed- ing 25 cents for each round trip, and sell to residents at Pacific Beach commutation tick- ets for a sum not exceeding $4.50 per month; and it bound itself to appellant in the sum of $35,000, and pledged all its property as secu- rity for the obligation, to comply with all its covenants, and agreed that, in case of its failure to so comply for five days, the said sum of money should be paid to appellant as liquidated damages. In consideration of these covenants appellant gave its three prom- issory notes to • respondent,— one for !f.o,000, due in six months, one for $15,000, due in one year, and the third for $15,000, due in two years. Respondent complied with all its said covenants, and operated its road in ac- cordance with said contract during the two years. The appellant paid the two first notes in full, and paid the interest on the third ($15,000) note up to July 10, 1891; the last by the $1,500 note here sued on. appellant refused to make any further pay- ment, and this suit is upon the second $15,000 note, and the said $1,500 given for interest, as aforesaid. The main contention of appellant for a re- versal arises out of these facts: The re- spondent had five directors, and the appel- lant nine; and at the time the contract was made four of the directors of the appellant were also directors of the respondent, and it is also claimed tnat, before the completion of the contract, a fifth director of appellant— D. C. Reed— became a director of respondent. A majority of the directors of both corpora- tions were also stockholders in both, and the contention of appellant Is that, because there were common directors of the two corpora- tions as aforesaid, therefore the contract was absolutely void, and incapable of ratification. Respondent contends that, upon these facts, the contract was, at the most, only voidable, and that the appellant ratified it. Appellant also contends that, even though ratification were possible, there was none. In this case there is no actual fraud, either alleged or found; and this distinguishes it from many of the cases cited by appellant. The contract seems to have been a fair, open one, and car- ried into effect before the eyes of all per- sons interested. Neither is there any ques- tion of ultra vires; and this also distinguish- es the case from cases cited by appellant. The court found that appellant's charter ex- pressly gave it the power to make such a contract. See, also, on this point, Vandall v. Dock Co., 40 Cal. 83. The contention, there- fore, at this point of the case, is that the mere fact that there were common directors, as above stated, of the two corporations at the time of the contract, makes it absolutely void; and this contention cannot be main- tained. Where two corporations, through their boards of directors, make a contract with each other, the directors who are common to both are not within the rigid rule of the cases which hold that one who acts in a fiduciary capacity cannot deal with himself in his individual capacity, and that any con- tract thus made will be declared void, witli- out any examination into its fairness, or the benefits derived from it to the cestui que trust. Two corporations have the right, within the scope of their chartered powers, to deal with each other; and this right is certainly not destroyed or paralyzed by the fact that some, or a majority, of the directors are common to both. Of course, if such di- rectors should wrongfully and willfully use their powers to the prejudice of one of the corporations, their action, if not acquiesced in, and if contested at the proper time, could be avoided, as in any other case of actual fraud. But such common directors owe the DIRECTOHS. 25 same fidelity to both corporations, and there is no presumption tliat they will deal unfair- ly with either. Therefore, their acts as such •common directors are not void. There are abundant authorities to this proposition, but it is hardly necessary to refer to any other than that of Pauly v. Pauly, decided by this ■court (107 Cal. S, 40 Pac. 29), and the cases there cited. In that case the court, in its ■opinion, says: "The stumbling block in this case, however, seems to have been the •double relation of agency of Collins, Dare, .and Harvermale, being at the same time of- flcei-s and directors in both corporations," — and quotes approvingly from Mining Co. T. Senter, 26 Mich. 73, and Leavenworth Co. •Com'rs V. Chicago, R. I. & P. Ry. Co., 134 TJ. S. 688, 10 Sup. Gt. 708, which cases strong- ly declare the rule above stated. The con- ■clusion reached is correctly condensed in the syllabus, as follows: "The I'act that some of the directors of the bank were also direcf- •ors of the cable company does not prevent them from being distinct corporations, who have the right to contract with each other in their corporate capacities; and, if the re- lation of the parties has not been abused, it ■constitutes no bar to a recovery of moneys advanced by the bank and used for the ben- efit of the cable company." We will notice ■one or two other recent authorities to the same point In Coe v. Railway Co., 52 Fed. •543, Judge Pardee says: "That the East & West Railroad Company could lawfully con- tract with the Cherokee Iron Works, al- though all the stockholders of the one were also stockholders of the other, in the ab- sence of fraud and misrepresentation, is in- disputable ; nor would the fact that the two •corporations had substantially the same di- rectors, who were the active agents negotiat- ing the contract, render it void, — at worst, •only voidable, but subject to ratification." In Jesup V. Railroad Co., 43 Fed. 483, the validity of a lease between two coi-porations in whicB there were common directors was involved; and Justice Harlan held (we ciuote, for brevity, from the syllabus, which is correct) as follows: "The contract by which the Dubuque Company leased the €edar Falls road would not have been void, €ven if the majority of the directors of that •company had been personally interested in the Cedar Falls Company. It would have "been simply voidable at the election of the Dubuque Company, or, in a proper case, at the suit of its stockholders; and that elec- tion must have been exercised, or the siiit brought, within such time as was reason- able, taking into consideration all the facts and circumstances of the case." In the notes to section C58, Cook, Stock, Stockh. & Corp. Law (3d Ed.), there are many cases cited on the subject. They are not all in perfect harmony, but they abundantly war- rant the statement in the text that "this <-lass of contracts certainly are not void." See, also, Booth v. Robinson, 55 Md. 419; Kitchen V. Railroad Co., 69 Mo. 224. . The decisions of this court and of other courts, cited by appellant, are mostly in cases where trustees attempted to contract about the trust property directly with themselves, for their individual benefit, and not cases where corporations dealt with each other through common directors; or in cases of ultra vires in the strict sense; or in cases where actual fraud was the ground of the alleged invalidi- ty of the contract. For instance. Graves v. Mining Co., 81 Cal. 303, 22 Pac. 665, is great- ly relied on by appellant; but in that case the directors of a single corporation had un- dertaken to vote themselves money, — ^partly for salary prohibited by the by-laws,— and to execute in the name of the corporation a note and mortgage for a large amount of money to themselves as individuals. This was an entirely different state of facts from those in the case at bar. Moreover, tliat case was decided upon the grounds of actual fraud and a failure to prove ratification,— the court saying, "The fairness, honesty, and good faith of the transaction under consider- ation are further impeached by the testimo- ny," etc.; and the court say, even in that exti-eme case, "It is not intended to decide, however, that these directors may not have recovered from the corporation the value of money or property honestly advanced by them, and which had been used by and tor the benefit of the corporation in carrying on its business, or the value of services ren- dered by them outside of the duties of their office, in a proper case and upon a proper showing." It is true that the opinion there holds — no doubt, correctly— that directors of corporations are trustees within the meaning of sections 222»-2230 of the Civil Code; bur those sections, so often invoked by appel- lant, are mere statements of the fundamen- tal principle of the law of trusts that a trustee cannot deal with the trust property for his own individual benefit, and that prin- ciple obtained in all the jurisdictions where the decisions about common directors here- inbefore cited were rendered. It is unnec- essary to notice each of the other cases cited by appellant. It is sufficient to say that each case, in some of the features above indicated, differs essentially from the case at bar. The contract, therefore, was not void; ana assuming that it was voidable, and might have been avoided by the appellant at the proper time and in the proper manner, it is clear that it was not so avoided, but that it was ratified. In the first place, there was no attempt to avoid it, nor any intimation of such intention, until long after the time men- tioned in the contract had expired, and re- spondent had performed all its covenants therein provided, until long after appellant had received all the benefits coming to it from respondent's performance, and until long aft- er it had become impossible to restore any- thing to respondent, or to put it, in whole or 26 DIEECTORS. in part, in statu quo. And during this time appellant without objection paid, from time to time, the greater part of the principal and a large part of the interest which by the contract it had promised to pay; thus indu- cing respondent to perform the whole of its part of the contract in confidence that appel- lant would do the same. This, we think, un- der the circumstances of this case, constitutes ratification by acquiescence; for the rule is that a party cannot repudiate the burdens of a contract while enjoying its benefits. Un- derbill V. Improvement Co., 93 Gal. 312, 28 Pac. 1049. There is some question as to the sufSciency of the findings on this point, al- though, in our judgment, they sufficiently state the facts constituting such acquiescence. The court, however, also found that, at three different meetings of the stockholders of ap- pellant, at two of which over two-thirds of the stockholders were represented, and at the other over a majority, the action of the di- rectors in making the contract in question was ratified, approved, and confirmed; and the evidence supports this finding. At the regular annual meeting on August 29, 1888, six weeks after the making of the contract, at which more than two-thirds of the stock- holders were represented, all the previous acts of the board were expressly ratified. At the regular annual meeting on August 29, 1889, at which more than two-thirds were represent- ed, the reports of the secretary and treasurer, showing the existence of the $15,000 note sued on, were read and approved, and all the proceedings of the preceding year were unani- mously approved; and at a regular adjourn- ed meeting, on September 5, 1889, at which a majority of the stock was represented, the same thing was shown by the reports of said two officers, and the action of the board again unanimously approved. It is admitted that there was also another annual meeting of the stockholders in August, 1890, at which all for- mer actions of the directors were approved. These acts constituted a ratification of the contract in question. Underbill v. Improve- ment Co., 93 Cal. 313, 28 Pac. 1049. The contention of appellant that the con- tract could not be ratified except by the unanimous consent of all the stockholders cannot be maintained. That principle does not apply to acts which might have been au- thorized by a majority in the first instance. "The corporation may, however, ratify an un- authorized transaction of its agents; and this may be done either by the unanimous acqui- escence of the shareholders, or by a vote of the majority if the transaction is of such a character that the majority might have au- thorized it at the outset." 1 Mor. Priv. Corp. (2d Ed.) § 525, and the cases there cited. The rule is that the majority governs, and every stockholder contracts that such shall be the rule. Civ. Code, § 312; 1 Mor. Priv. Corp. S 474. There is nothing in the contention that the ratifications were made without knowledge of what they meant. In the first place, this is not an action by individual stockholders to set aside a contract made by the corporation. The point is made by the corporation itself, in a defense in which it seeks to violate its own obUgation; and it would be absurd to say that it did not know what it was doing. But, if we assume that in this action the corpora- tion could shield itself between the ignorance of a few of its stockholders, it is clear that the latter knew, or ought to have known, the nature of the contract and the circumstances attending it. The respondent ran its railroad through the premises of appellant upon land purchased for that purpose by the former from the latter, there was a continuous opera- tion of the road according to the contract, and a continuous payment from time to time by appellant of large sums of money under the contract, and the relations of the two corpora- tions were of an intimate character. And, as was said in Bleu v. Mining Co., 20 Cal. 613, 614: "The natural presumption is that it was fully considered, and the particulars inquired into and explained, and the idea that this was not done is certainly at variance with the usual mode of conducting business." And, again: "A ratification supposes a knowledge of the thing ratified," and "there is no evi- dence of any mistake in this case." More- over, at the meeting of the stockholders at which the contract was first ratified, the min- utes of the meeting of the board of directors of appellant at which the contract was made were read; and they showed that Gassen, who was a director of appellant, was also di- rector, president, and general manager of the respondent, and presented the table of trains, and acted for the resjwndent. Furthermore, as was said in Underbill v. Improvement Co.,. supra, quoting from Morawetz: "Nor can the shareholders of a corporation avoid responsi- bility for the unauthorized acts of their agents by abstaining from inquiring into the affairs of the company, or by absenting them- selves from the company's me'CtingSf and at the same time reap the benefits of their acts in case of success." It is significant that in the case at bar there was no attempt to show a. want of knowledge of any of the stockhold- ars of any circumstance connected with the contract which is now sought to be repudi- ated. With respect to the discussion by appellant, of the value of the consideration for which it entered into the contract, it is sufficient to say that the wisdom or good policy of that con- tract is not a matter for decision here. The facts found show what the consideration was. In considering this case, we have assumed, without deciding, that the contract involved was one which the appellant, if there had been no acquiescence or express ratification, might by prompt action have avoided. The judgment and order appealed from are af- firmed. We concur: TEMPLE, J.; HENSHAW, J. CEEATION OF CAPITAL STOCK. 27 Amendments of charter. Obligation of stoch. Transfer of shares to escape BVERHART v. WEST CHESTEK & PHIL- ADELPHIA RAILWAY CO. (28 Pa. St. 339; Redfield's American Railway Cases. 180.) Supreme Court of Pennsylvania. 1857. Error to court of common pleas, Chester couaty. Tills was an action of assumpsit brought by the West Chester and Philadelphia Railroad Company, to recover from William Everliart the amount of one hundred snares of capital stock of the company subscrtbed by him, to- gether -with the penalty of one per centum per month for non-payment imposed by the act of incorporation. The facts sufficiently appear in the opinion of the court. There was a judgment for plaintiff. Defendant brought error. J. .T. Lewis and M. Russell Thayer, for plain- tiff in error. Pennypacker & Bell, for defena- ant in error. WOODWARD, J. There are two principal questions in this case, the first whereof is whether the several acts of assembly supple- mental to the acts which incorporated the company, wrought such essential and radical changes in the constitution and objects of the company as to release the defendant from the payment of the installments on the stock for which he had subscribed. The first of these supplemental acts, parsed the 7th January, 1853, authorized the stock- holders to elect three additional managers. The next, passed the 27th Febmary, 1854, enacted that each share of stock should give the holder one vote at all elections of officers and other stock votes, provided he had held it for more than th'irty days prior to such vote. The last act, passed the 30th March, 1855, authorized the company, "for the pm-pose of completing and equipping their said railroad," to create a preferred stock to the extent of eight thousand shares of fifty dollars each, and for the purpose of redeeming its bonds and the preferred stock, and for the payment of other debts, to issue and dispose of bonds to any amount not exceeding six hundred thousand dollars, at a rate of interest not ex- ceeding 8 per cent, per annum. Besides pro- viding for many details connected with the preferred stock, the act stipulates that before it takes effect as a law of the corporation, it shall be accepted by a majority in value Oi the stockholders entitled to vote, and pre- scribes how the meeting of the stockholders shall be convened. It was admitted on the trial that the com- pany had accepted all the provisions of the above-named acts of assembly. Now it is too plain for controversy that this legislation was in aid of the objects and pur- poses of the corporation, which were in gen- eral to build and work a railroad from the borough of West Chester to the city of Phila- contracts. Authority to issue preferred assessment. delphia. The company was incorporated in pursuance of an act of assembly passed in 1848 — they had organisied and commenced their work— and the preamble to the act of 1855 recites that they would require, to com- plete and equip their road, a greater sum than could be realized by the sale of bonds and stock now authorized by law, and that the making of a floating debt to meet such re- quirements would be onerous to the manage- ment of the road, and in all probability un- duly hazard the interests of holders of its capital stock. Out of these embarrassments grew the remedial legislation that was accept- ed by the company, but which is now set up by one of the original corporators as a defense aga'inst his payment of stock. The diligence of the learned counsel has failed to find a case to countenance such a defense. Nothing is plainer than that an alteration of a charter by the legislature may be so exten- sive and radical as to work an entire dissolu- tion of the contract entered into by a sub- scriber to the stock, as by procuring an amendment which superadds to the original undertaking an entirely new enterprise. Every individual owner of shares expects, and indeed stipulates with the other owners as a body coriwrate, to pay them his propoi-tion of the expense which a majority may please to incur in the promotion of the part'Jcular ob- jects of the corporation. By acquiring an in- terest in the corporation, therefore, he enters into an obligation with it in the nature of a special contract, the terms of which are lim'it- ed by the specific provisions, rights, and lia- bilities detailed in the. act of incorporation. To make a valid change in this private con- tract, as in any other, the assent of both par- ties is indispensable. The corporation on one part can assent by a vote of the majority, the individual on the other part by his own per- sonal act. Consequently, where an assess- ment is sued for to advance objects essentially different, or the same objects in methods es- sentially different from those originally con- templated, they cannot be recovered because they are not made in conformity to the de- fendant's special contract with the corpora- tion. Ang. & A. Corp. & 537; Canal Co. v. Towne, 1 N. H. 44; 3 Mass. 268; 10 Mass. 384; 7 Barb. 157; 33 Pa. St. 133; Hester v. Railroad Co., 32 Miss. 378; see 14 Leg. Int No. 18. Whilst these principles are unauestionable, it is equally well settled by the authorities that modifications and 'Improvements in the charter, useful to the public, and beneficial to the company, and in accordance with what was the understanding of the subscribers as to the real object to be effected, do not impair the contract of subscription. Irvin v. Turn- pike Co., 2 Pa. St. 466; Gray v. Navigation Co., 2 Watts & R. 156; Clark v. Navigation Co., 10 Watts, 364. The case of the Indiana Turn- pike V. Phillips, 2 Pa. St. 184, is an instance 28 CKJSATJOK OF CAPITAL STOCK. of such radical alteration in the structure of the company as works a release of the sub- scriber. These general principles are founded in •common sense, and it is apparent that they afford not the least support to this defense. The defendant voluntarily embarked in an enterprise which could only be carried out by accumulating large sums of money. His spe- cial contract with the other corporators looked to nothing less than a finished railroad from West Chester to Philadelphia; and it implied necessarily the ordinary and lawful means lor accompl'ishin;? that object. When their money was expended and the work not finish- ed, the necessary funds could be raised only by giving these funds a preference over the ■original stock, whether they came in the form of a loan or of preferred stock. Without the remedies provided by .the legislature, the de- fendant's stock must remain worthless on his hands — with them, he shared a common chance with the others of realizing ultimate profits. The legislation then, without altering the structure of the company, or changing the ob- jects of its institution, or the mode in which those objects were to be pursued, set on foot a scheme of finance Intended for its relief and benefit. It was to complete and equip the road— the very road— the defendant had agreed to assist to build. We all agree that the parts of the charge quoted in the 10th and 11th assignments of «rror were unexceptionable. On the next question, which relates to the right of the defendant to transfer his stock so as to escape liability for the unpaid install- ments, we are a divided bench; but a ma- jority concur, though for different reasons, in holding him liable notwithstanding the trans- fer he made. Two of us think he had a perfect legal right to assign his stock on any terms he pleased, but that unless it was done with the consent of the company, he rema'lned liable still to them as a stockholder for the unpaid portion of his subscription. One of our number is of opinion that if the assignment had been bona fide it would have relieved him from further liability, but that, the record showing thti*. it was a transfer mala fide, he remains liable. The only remaining judge who sat in the argument holds that the assignment was valid and relieved the defendant from further lia- bility. As neither of these opinions has the sanc- tion of a majority, they are not to be discuss- ed, and are indicated only to show that they result in an affirmance of the ruling below on this point. These are the principal questions in this case; but there are some minor points that require a passing notice. It is not qu'ite clear from the record that the court gave any instruction on the subject of the rate of interest to be chai'ged against the defendant; but if the 12 per cent, provided for in the 8th section of the incorporating act were allowed in pursuance of what the court said as quoted in the 9th assignment of error, a majority of our number think it was fight, so that the defendant takes nothing by that assignment. The defendant had estopped himself from denying that five dollai-s a share was paid at the time of subscribing. And there are no grounds for the objections to the amended declaration. On the whole, we see no error in the record, and therefore the judgment is affirmed. LEWIS, C. J. I think that the plaintiff 'in error is liable on his written "promise to pay to the corporation the sum of $50 for every share of stock set opposite his name." The subsequent transfer of his stock did not re- lease him from that contract. It is very clear that the transfer was not made in the ordi- nary course, as a business transaction, because the alleged purchaser was really paid for taking the stock, instead of paying money for it. Yet that is immaterial, because, whether the transfer was fair or fraudulent— whether with the consent of the company or without it —whether entered on the books or not— wheth- er the purchaser became liable for the install- ments unpaid or not, there 'is nothing in the law, or in the nature of the transaction, which discharges the original subscriber from his express written engagement to pay the money. Trevor v. Perkins, 5 Whart. 244. The case of Pluddersfield Canal Co. v. Buckley, 7 Term R. 36, was decided on peculiar circumstances, and does not rule a case like the present But the penalty of one per cent, per month is imposed only on stockholders. The plain- tiff in error was no stockholder when the de- fault occurred. He is therefore not liable for the penalty. It is ti-ue that there is no assignment which brings this error to our notice in such a way as to oblige us to take notice of it. But the declaration claims the "one per cent, per month," and the amount of the verdict shows that it was recovered. I would, therefore, direct the prothonotary to make the proper calculation of the amount lof principal and interest due on the subscrip- tion, and if the plaintiff below refused to re- lease the excess, I would revei-se this judg- ment. This court have a right, of their own motion, to do justice. I am in favor of doing it in this case. If my brethren do not concur in this suggestion, I must unite with them in saying that the errors have not been sustain- ed, and that the judgment must be affirmed. Cf., as to transfers to avoid liability, Whit- ney V. Butler (1886) 118 U. S. 655, 7 Sup. Ct. MUNICIPAL AID TO EAILKOADS. 2^ Mandamus procedure. MnnicipaUties cannot be compelled to aid railroads. Railroads, how far public corporations. PEOPLE T. BATCHELLOR. (53 N. Y. 128.) Court of Appeals of New York. June 10, 1873. Application for a writ of mandamus to compel the issuance of bonds in aid of a railroad company. An alternative writ was issued, and, upon a trial of the issues raised by the return, there was a verdict and judg- ment for relator. Defendant appealed. Re- versed. John Ganson, for appellant. B. C. Sprague, for respondent. GROVER, J. Section 1, c. 672, Laws 1867, enacts that it shall be lawful for the super- visor of any town in the county of Chau- tauqua, through which the Dunkirk, etc., Rail- road shall run, or of any town adjoining ei- ther of the towns through which said rail- road shall mn, to borrow, on the faith or credit of such town, any sum of money not ex- ceeding twenty per cent of the assessed val- uation of the real and personal property of such town, as shown by the last assessment- roll previous to the issuing of the bonds au- thorized by the act, at a rate of interest not exceeding seven per cent, and for a period not exceeding thirty years, and to execute bonds therefor; provided that the power and authority conferred shall only be exercised upon the condition that the consent shall first be obtained in writing of a majority of the tax payers of such town owning or rep- resenting, etc., more than one-half of the tax- able property of said town, assessed and ap- pearing iipon the assessment-roll of the year last preceding the issuing of the bonds au- thorized, proved or acknowledged as therein specified; and that such consent shall be procured within three years from the pas- sage of the act. That such consent shall state the amount of money to be raised, and the fact that a majority of the tax payers owning or representing a majority of the tax- able property, as api)eared from the assess- ment-roll, had been obtained, should be prov- ed by the aflSdavit of one of the assessors of the town, or that of the town or county clerk, indorsed upon or annexed to such written consent, which should be filed, and have the effect specified in said section. Section 2 provides that said supervisor may in his discretion dispose of such bonds or any part thereof to such persons and upon such terms, not less than par, as he may deem most advantageoxis to the town; and that the money raised by loan or sale of the bonds shall be invested in the stock of the railroad company; and that the same shall be used in the construction of the railroad, etc. ; the public necessity and utility of which was thereby declared; and that in Its con- stiTiction the said towns were immediately Interested; and that for the purpose of such construction the said supervisor, in the name of the town, might subscribe for and pur- chase the stock of said company, to the amount to which the tax payers had consent- ed, as above specified; and that by virtue of such subscription and purchase the town should acquire all the rights and privileges,. and incur all the responsibilities as other stockholders of the company. Other sections provide for levying and collecting taxes for the payment of the interest and principal of the bonds to be issued, and other matters not material to the questions in this case. Between the passage of the above act and before the passage of chapter 472, p. 850, 1 Laws 1868, the town of Stockton was not bonded. By the first section of the last- mentioned act it was provided that in case the written consent of the tax payers of any town had been or should thereafter be ob- tained in the manner provided by the first- mentioned act, its supervisor was authorized and required to make a subscription to the stock of the company to the amount fixed in such consent, and to issue the bonds of the town, and dispose of the same as required by said first-mentioned act. Section 3 of the last act provides that the supervisor of Stock- ton shall not be required to issue the bonds of that town, although authorized as requir- ed by the act of 1867, until the iron was laid upon the road from Dunkirk to the Pennsylvania line. The following consent of tax payers was. introduced in evidence upon the trial: "The undersigned, tax payers of the town of Stock- ton, hereby consent that the supervisor of the town of Stockton may borrow the sum of $34,000 on the faith and credit of said town, at a rate of interest not exceeding- seven per cent, for a term not exceeding thirty years, and execute bonds therefor un- der his hand and seal; and that the said su- pervisor may, in his discretion, dispose of such bonds or any part thereof; and that the proceeds of the sale of such bonds shall be invested in the stock of the Dunkirk, etc., Railroad Company; and that the said super- visor may exercise full and complete powers for said town under the first-mentioned act." This consent was signed by a considerable number of tax payers, whose signatures were proved or acknowledged as required by the act, to which was annexed an aflidavit of Corydon Putnam, one of the assessors of the town, to the effect "that the persons whose names appear attached to said consent, and which appear on the assessment-roll of the town for the year 1867, were a majority of all the taxpayers of the town of Stockton whose names appear upon said assessment- roll, and that they are a majority of all the tax payers in said town of Stockton whose names appear upon the assessment-roll for the year 1867, including resident tax payers, owners of non-resident lands, and including agents representing owners of taxable prop- erty; and that each person so signing said. 30 MUlflClPAL AID TO EAILliOADS. consent lias in due form acknowledged the same, or his signature been proved in due form of law." This affidavit was sworn to November 21, 1867; but the papers were not filed in the town clerk's office until April 25. 1868. No further steps to bond the town appear to have been taken until after the passage of chapter 282, p. 634, 1 Laws 1870. Section 2 of this act provides that in any case where the written consent, authorizing the super- visor of any town to subscribe to the stock of the Dimkirk, etc., Railroad Company, shall have been filed in the town clerk's office of the town, and a copy thereof in the county clerk's office of the county, with the affidavit of one of the assessors of the town, etc., in- dorsed or annexed to such written consent, and such affidavit shall be based upon the assessment-roll of such towns for either of the years 18G7, 1868, or 1869, or for the last year previous to the issuing of the bonds as authorized, such affidavit shall be evidence in all courts and for all purposes, and such con- sent Shall authorize, uphold and require the respective subscriptions to be made to such stock, and authorize, uphold and require the issue of bonds to the amount specified in such consent for such towns respectively, and such bonds shall bear date and interest from the respective dates of the first filing of said copy of consent and affidavit in the Ohautauqua county clerk's office, and no clerical or other defects in any of such affi- davits shall invalidate such proof, or the subscription to the stock or the said bonds. Section 3 provides that if the said bonds when issued shall not be sold for money, as required by the original act, within thirty days from the time when they are ready for sale, the supervisor of the town issuing the same shall deliver said bonds to the railroad company, receiving therefor the par value of the principal of said bonds in the stock of the company at its par value. Section 4 re- peals section 3 of the act of 1868, which provided that the supervisor of Stockton should not be required to issue the bonds of the town until the iron was laid on the road from Dunkirk to the Pennsylvania line. The act of 1867 was a mere enabling act, confer- ring power upon the several towns embraced therein to issue bonds, upon the conditions therein specified, to aid the construction of the railroad, etc. It conferred no right upon the railroad company or any one else, when proceedings for bonding had been commen- ced, to have any further steps taken imtil bonds had been actually issued under the act. Then such rights were acquired. The railroad company could then enforce the ap- plication of the proceeds to the construction of its road according to Its provisions, assum- ing the act to be constitutional. The consent of the tax payers was given under this act. The entire language of the consent shows that the signers understood the act, and their <;onsent in conferring discretionary power upon the supervisor to act upon his views as to the interest of the town. They consent that he may borrow the sum of $34,000, upon the faith and credit of the town, etc., and execute bonds therefor. That he may, in his discretion, dispose of such bonds or any part thereof, and invest the proceeds in the stock of the railroad company, and that he may exercise full and complete powers for said town, under the act. Sometimes the word "may" is construed as "shall," but only when the context shows that such was the inten- tion, or when the public have an interest in the exercise of the powers so conferred up- on officers or official boariis or tribunals. The import of the word, as used in the con- sent and the act, is to give power, license and permission, not to require or enforce the performance of any one of the specified acts. This view is confirmed by the different lan- guage of the acts of 1868 and 1870, relating to the same subject, the latter showing an intention to compel the supervisor to bond the town, and if he failed to sell the bonds at par, within thirty days after they were ready for sale, he is not only authorized but required to deliver the bonds to the railroad company, upon receipt from it of an amount of stock equal to the principal of such bonds. Under the act of 1867, care was taken that the bonds should not be issued for less than the par value, in cash. This would be the result, whether the money was borrowed up- on the faith and credit of the town, and the bonds given as security, or the bonds sold at not less than par. Thus there would, in case the town was bonded, be secured for the construction of the road, cash equal to the principal of the bonds. If the bonds are delivered to the company upon the receipt of stock, to an amount equal to the principal of tlje bonds pursuant to the act of 1870, the bonds become the property of the rail- road company, and may be sold upon the market much below par, and thus much less money accrue therefrom from the construc- tion of the road. It is obvious that the con- sent given does not embrace any such transaction. Again, the act of 1867 requires that the consent shall be based upon the assessment- roU of the year last previous to the issuing of the bonds. This is entirely departed from in the act of 1870. Had there been no sub- sequent legislation it is clear that no bonds could have been issued upon the consent given and affidavit made after the comple- tion of the roll of 1868. Had bonds been issued under the provisions of the act of 1867, and the town had complied with its provisions, it would not have been liable to pay a tax at any one time to pay more than one year's interest upon the bonds, as none would have accrued prior to the issue; while the act of 1870 requires in effect that they should bear date and be upon interest from April 25, 1868, the time of filing the con- sent and affidavit in the town clerk's office, MUNICIPAL AID TO EAILKOADS. 31 thus subjecting the town to a tax for this hack interest in addition to such as should accrue after the issue. No tax payer of the town has ever consented to any such issue of its bonds. The judgment awards a man- damus to the appellant compelling him to issue bonds according to the requirements of the act of 1870. If the consent of the tax payers or any part of them, or of any of the town boards or officers, or any of the electors of the town is necessaiy, this judgment can- not be sustained, as no such consent has been given to such an issue of bonds as the judgment commands. But before examining this question it may be well to consider the point made by the counsel for the respondent, that the appel- lant having made a return to the alternative writ, and issue haying been taken upon such return by the relator, and a verdict having been foimd in his favor, he is entitled to Judgment thereon awarding a peremptory mandamus, together with damages and costs of course, and therefore the question wheth- er any of the acts in question are constitu- tional cannot be raised by the appellant ei- ther in this or the supreme court. 2 Rev. St. p. 587, § 57, cited by counsel, provides that in case a verdict shall be found for the per- son suing out such writ, or if judgment be given for him upon demurrer or by default, he shall recover damages and costs in like manner as he might have done in an action on the case as aforesaid, and a peremptory mandamus shall be granted to him without delay. The common law providing and reg- ulating the remedy by mandamus, will show that the purpose of enacting this and other provisions of this statute, and that of 9 Anne, c. 20, was to authorize such pleadings In the proceeding as would present to the court the real merits for adjudication, in- stead of compelling the relator to resort to an action on the case for the recovery of damages, and to obtain a peremptory writ in case of a false return to the alternative writ. A review of the common law and the rea- sons for the passage of the statute will be found in the opinion of Marvin, J., in People V. Supervisors of Richmond Co., 28 N. Y. 112. This shows that it was the intention of the statute to do complete justice In the proceeding itself without a resort to any oth- er. People v. Board of Metropolitan Police, 26 N. Y. 316, was decided upon a point not affecting the present question, and while the opinion of Wright, J., seems to sustain the position of the counsel, he does not place his judgment upon that ground. It could not have been intended by the statute to give a peremptory writ where the record showed no legal right because of a mistake in the re- turn in matters of fact resulting in a ver- dict for the relator. Commercial Bank of Albany v. Canal Com'rs, 10 Wend. 25, gives the tme rule: "That at any time after a re- turn, and before a peremptory mandamus is awarded, the defendant may object to a want of sufficient title in the relator to the relief sought or show any other defect of substance, though he cannot after return ob- ject to defects in form." If the law gave an absolute right to the writ where a verdict was found for the i-elator, although from the entire record it appeared he had no such right, great injustice might be the result. This brings us to the question whether a mandatory statute compelling a town or oth- er municii)al corporation to become a stock- holder in a railroad or other corporation by exchanging its bonds for stockupon the terms prescribed by the statute, without its consent in any way given, is constitutional. This is a different question from that decided by this court in Bank of Rome v. Village of Rome, 18 N. Y. 38, and in subsequent cases. In these the question was, whether enabling statutes conferring power upon such corporations to contract debts with their own consent and In- vesting the money thus raised in the stock of railroad corporations or of exchanging di- rectly its bonds for such stock were valid. These acts were held constitutional by this court, but this does not determine that mu- nicipal corporations may be compelled by the mere authority of the legislature to enter into this class of contracts and become such stockholders without their consent and against their will. In People v. Flagg, 46 N. Y. 401, it was held that an act requiring the town of Yonkers without Its consent to issue bonds for raising money, which was to be expended In the construction of highways in the town, in the manner prescribed by the act, was constitutional. This was so deter- mined, upon the ground that the making and improving of public highways and providing the means therefor were appropriate sub- jects of legislation; that towns possess such powers as are conferred by the legislature; that they are a part of the machinery of the state government and perform important municipal functions, subject to the regula- tion and control of the legislature. In short, that the act was the mere exercise of the unquestioned power of the legislature to de- termine what highways should be construct- ed, and of the taxing power in providing means to defray the expense incurred in their construction. But it is said in the opinion that if the object of the expenditure was pri- vate, or if the money to be raised was direct- ed to be paid to a private corporation, which is authorized to use the improvement for pri- vate gain, the question would be quite differ- ent, and in this respect there is a limit be- yond which legislative power cannot legiti- mately be exercised. It Is manifest that the question presented in the present case was not determined in that, unless It shall be further held that a railroad owned and con- trolled by a coi-poration and operated by it for the benefit of its stockholders is a public highway in the same sense as the common roads of the countr3^ The towns through which the latter run may be compelled to MUNICIPAL AID TO RAILROADS. oonstJ-uct and keep them in repair for the common use of the public. The substantial question in the present case is, whether they may be so compelled to construct and repair railroads owned and operated by corpora- tions for the benefit of the stockholders. It is clear that they may be, if they are public highways in the same sense as common roads. It has been uniformly held that the right of eminent domain may be exercised so far in behalf of a railroad corporation as is neces- sary for the construction and opei-ation of the road upon the ground that the road and its operation was for a public purpose, and therefore the real estate condemned for its use was taken for public and not private use. But it is equally clear that property acquired by the corporation belongs to it exclusively, and its ownership is as absolute as that of any private individual or property belonging to him. It is also clear that so far as the road is operated for the benefit of its stock- holders the corporation is private. We have then an artificial being, created by the legis- lature, endowed with public franchises, the absolute owner of property of which it can- not be deprived by legislation except for pub- lic purposes, carrying on business for thepri vate emolument of its stockholders. People v. Plagg determines that towns may be com- pelled to provide for the construction and maintenance of improvements of a public character exclusively. But here we have an attempt to comi)el them to aid in the con- struction of a work public in some respects, but private in others, of at least equal im- portance. It is said that municipal corpora- tions are creatures of the legislature and subject to its control. In a certain sense this is true. They are created by the legislature as instnimentalities of the government, and so far as legislation for governmental pur- poses is concerned, are absolutely subject to its control. The powers of legislation over individuals is given to the legislature for all the purposes of government, subject to such restrictions as are contained in the constitu- tion. Yet no one would claim that an indi- vidual could be compelled by a statute to exchange his note or bond and mortgage with a railroad corporation for its stock against his will upon such terms as were prescribed in the act or any other. It is within the province of legislation to provide for enforcing the performance of contracts when made; but to enforce the making of them by individuals is entirely beyond it. We have seen that municipal corporations may be compelled to enter into contracts for an exclusive public purpose; but I think they cannot be when the purpose is private. This is equally beyond the province of legisla- tion in the case of such corporations as in those of private corporations or individuals. In Atkins v. Town of Randolph, 31 Vt. 226, it was held that an act providing for the ap- pointment of an agent of the town by the county commissioner, with power to pur- chase liquors on the credit of the town, and to sell the same for certain specified pur- poses, and account for and pay over the pro- ceeds to the town as prescribed, was uncon- stitutional; and the town, not having con- sented to the appointment or ratified the con- tract, was not liable for the liquors pur- chased upon its credit by such agent pur- suant to the act. This judgment is based' upon the grounds that the legislative power over municipal corporations is not supreme, and does not include the power of compel- ling them to enter into contracts of a private character, although such contracts would conduce to the public good by enabling the- government to supijress traffic in intoxicat- ing liquors. In Western Sav. Fund Soc. of Philadelphia v. City of Philadelphia, 31 Pa. St. 185, it was held that when a municipal cor]3oration engages in things not public in their nature, it acts as a private individual; and in the same case, between the same par- ties (Id. 175), it was held that it so acted in supplying its inhabitants with gas. In Bail- ey V. Mayor, etc., 3 Hill, 531, it was held that a municipal corporation was to be re- garded as private to its ownership of lands- and other property; and that the test wheth- er powers exercised by a mimicipal corpo- ration were public or private was whether they were for the benefit and emolument of the corporation or for public purposes; and it was further held that the city of New York, under the act to supply the city with pure and wholesome water (LawslS34,p.451> acted as a private corporation, and was re- sponsible as such for the acts of those ap- pointed by the act, for the reason that the corporation had accepted of and consented, to the act. Surely a town acts as a private corporation in becoming a stockholder of a railroad corporation, and as such interested in the operation of the road for the benefit of the stockholders. AVhen a municipal acts, as a private coiTporation it acts as an individ- ual. In Taylor v. Porter, 4 Hill, 140, it was- tersely said by Bronson, J., that the power of making bargains for individuals has not been conferred upon any department of the government. In People v. Morris, 13 Wend.- 325, the distinction between the nature of the action of public and private corporations is clearly given. Olcott V. Boai-d of Sup'rs, 16 Wall. 678, re- cently decided in the supreme court of the United States, is cited as decisive of the question now imder consideration In the present case. But this question was not in that case. That action was for the recovery of notes and orders issued by the coTinty to the Sheboygan and Fond du liac Railroad Company, in pursuance of an enabling act passed by the legislature, which required such issue to be approved by a majority of the votes given at an election to be held for the pui-pose of determining whether such majority approved of such issue. The ques- tion was whether the enabling act was con- MUNICIPAL AID TO RAILROADS. 33 stitutlonal. The circuit court held it was not, and gave judgment for the defendant upon the ground that the supreme court of Wisconsin had previously so determined, and that as the question was whether an act of the state legislature was authorized by the constitution of the state, the federal courts must adopt the determination of the state courts. This judgment was reversed by the supreme court, the chief justice and Justices Davis and Miller dissenting. Upon the ques- tion involved the supreme court has no ap- pellate jurisdiction from judgments of the state courts; and hence its judgment is not controlling in the determination. I concur in the views of the dissenting justices, that when the federal courts acquire jurisdiction by reason of the residence of the parties, they ought, in such questions, to follow t)ie determination of the courts of the state. Justice Strong, in the prevailing opinion, holds that the taxing power can be exercised for public purposes only; but insists that the construction of railroads falls within this class, and that the taxing power may be re- sorted to therefor. But the exercise of the taxing power, either general or local, for this ptirpose is altogether different from compel- ling a town to talie stock In the corporation without its consent, and to that extent en- gage in the business of a common carrier. I think it would not be claimed that a town could be compelled to become a stockholder in a banking or manirtacturing corporation, although it appeared that the particular cor- poration would largely promote the public interest where the business was conducted. Such legislation could only be sustained by holding the power of the legislature supreme over municipal corporations for private as well as public pTirposes. Upon principle and authority I think it is not as to the former, although it is" as to the latter. The test is, whether the purpose to be effected is public or private; if the former, a mandatory stat- ute is valid. If the latter, it is not within the province of legislation, and consequently not within the power of the legislature, and the act is therefore void. We have seen that a railroad corporation possesses some of the characteristics of both; public as to its fran- chises; private as to the ownership of its property and its relations to Its stockholders. Were it exclusively public the act of 1870 B ALDW. SEIi. CAS. B. K. — 3 would be valid, but void if exclusively pri- vate. It follows that as the legislature is supreme only as to public puiposes, and as the act in question relates in part to private, that to this extent it is void; and as the lat- ter is inseparably connected with the former, the entire act must be held void. In Sweet V. Hulbert, 51 Barb. 312, it was held that an enabling act to issue bonds and donate the same or the proceeds to a railroad coi-pora- tiou to aid in the construction of its road was void. It is unnecessary to go as far in the present case. It is argued that the pow- er of taxation for any pui'pose is supieme, and such power may be exercised upon the state at large, or any particular locality, in the discretion of the legislature; and that the act in question is but the mere exercise of this power of taxation, and therefore valid. People v. Mayor, etc., of Brooklyn, 4 N. Y. 419, and Town of Guilford v. Board of Sup'rs of Chenango Co., 13 N. Y. 143, are re- lied upon to sustain the position. These cases do not go quite as far as claimed by the counsel. The former only determines that an act providing for the expenses incurred in grading and improving the streets of a city by assessments upon the property bene- fited is a legitimate exercise of the taxing power, and therefore valid; and the latter that the legislature can recognize claims founded in equity and justice, in the largest sense of these terms, or in gra1:itude and charity, and provide for their payment by imposing a tax upon those who ought to pay them. The act in question cannot be main- tained upon the taxing power. A municipal corporation cannot be compelled to embark in a business of a private character, because its prosecution 'by it will probably or certain- ly lead to its taxation for the capital to be invested or expenses incurred therein. The above view renders an examination of the other questions discussed unnecessary. The judgment appealed from must be re- versed and a judgment rendered declaring the relator not entitled to a peremptory writ and dismissing the proceedings, with costs to the appellant. CHURCH, O. J., and ALLEN and PECK- HAM, JJ., concur. FOLGER, J., concurs in result. ANDREWS, J., dissents. RAPAL- LO, J., does not vote. 34 MUNICIPAL AID TO RAILROADS. Estoppel by recitals in county bonds. Assent o£ two-tliirds of qualified ▼otera. lis pendens. Effect of injunction against nnanthoriaed issne, on pnrchasep without notice. Effect of State decisions, as to construction of State statute, on federal courts. CARROLL COUNTY v. SMITH. (Ill V. S. 556, 4 Sup. Ct. 539.) Supreme Court of the United States. May 5, 1884. Error to the District Court of the United States for the Northern District of Missis- sippi. J. G. George, for plaintiff in error. L. B. Valliant and Geo. B. Howiy, for defendant in error. MATTHEWS, J. This was an action at law brought to recover the amount of cer- tain overdue interest coupons, upon munici- pal bonds, alleged to be obligations of the plaintiff in error, delivered and payable to the Greenville, Columbus & Birmingham Railroad Company or bearer, for $1,()00 each. Each bond contains the following recital: "The above-mentioned sum being a part of a subscription to the capital stock of the Green- ville, Columljus & Birmingham Railroad Company, authorized by the following styled acts of the state of Mississippi, viz.: An act entitled 'An act to incorporate the Arlian- sas City & Grenada Railroad Company,' approved "^arch 5, A. D. 1872, and an act entitled 'An act to amend an act entitled an act to incorporate the Arliansas City & Grenada Railroad Company, approved March 6, 1872,' approved March 4, A. D. 1873." The act first referred to contained the fol- lowing: "Sec. 19. Be It further enacted, that upon application by the president or other authorized agent of said corporation to the constituted authorities of any county, city, or incorpoi-ated town in the state of Mississippi, or adjacent to the main line and branch railroad of this corporation, for a subscription to a specified amount of the capital stock of said corporation, said con- stituted authorities are hereby required, without delay, to submit the question of 'sub- sciiption' or 'no subscription' to the deci- sion of the qualified votei"s of said county, city, or incorporated town, at a special or regular election to be held therein, and if two-thirds of said qualified voters be in fa- vor of said subscription, the constituted au- thorities of said counties, cities, or incorpo- rated towns are hereby required, without delay, and are authorized and required to subscribe to the capital stock of said corpo- ration to the amount agi-eed upon; and bonds of the county, city, or incorporated town making the subscription, having such time to run and such rates of interest as may be agreed upon, shall be issued, with- out delay, by the authorities of the coun- ties, cities, or incorpoi-ated towns, to the president and directors of said corporation, to the amount of said subscription to tlie capital stock. * * *" The second act recited had the effect mere- ly to change the name of the company to that of "The Greenville, Columbus & Bir- mingham Railroad Company." The complaint alleged that the bonds and coupons described were delivered by the county of Carroll to the railroad company, for value, and that the plaintiff became a purchaser thereof for a valuable considera- tion before maturity, and was an innocent holder thereof without notice. The defendant pleaded three plens, of which the first in order is as follows: "And for further plea in this behalf said defend- ant, by attorney, says actio non, because it says that on the third day of March, 1873, on the application of the president of the Greenville, Columbus & Birmingham Rail- road Company, a corporation in this state, the board of supervisors of the county of Carroll ordered a special election to be held in said county on the first day of April, 1873, at which the question of subscription or no subscription, by said county, to the capital stock of said railroad company was to be submitted to the qualified voters of said county. And said defendant avers that said election was accordingly held, and said defendant avers that on the first day of April, 1873, the names of 3,129 registered voters were on the registration books of said county, and there were In fact on the first day of April, 1873, three thousand one hundred and twenty-nine qualified voters in said county, but that only l,'i80 of said voters voted at said election, of whom 918 vo- ted in favor of the proposition to subscribe for said stock and 362 voted against it, as fully appears by the returns of the three regis- trars of said county, filed with the clerk of said board of supervisors of said county. And said defendant says that, notwithstand- ing the refusal of two-thirds of the quali- fied voters of said county to vote in favor of subscription for stock, the then board of supervisoi-s of said county, in violation of their duty and the trusts reposed in them, and in violation of the constitution of the state of Mississippi, subscribed to the cap- ital stock of said railroad company, and issued the bonds and coupons in the declara- tion mentioned in fact, for said subscription for said capital stock in said railroad com- pany, without any statement or recital in said bonds that two-thirds of the qualified voters of said county had assented thereto. And this the said defendant is ready to veri- fy. Wherefore it prays judgment," etc. The second was like the first, with the ad- ditional averments that the said returns of the registi-ars of the county, filed and de- posited with the clerk of the said board of supervisors of said county, was "at all times open to the inspection of all persons in the public office of the clerk of the chancerv MUNICIPAL AID TO RAILROADS. 35 court of said county; and said defendant avers that the said registration of voters of said county was a book of record, de- posited and kept in the public office of the clerk of the chancery court of said county as a record book, and open for Inspection to all persons, and exhibited the fact that there were 3,129 registered voters in said county at the time of the election." The third plea was like the second, with the addition of the following: "And said defendant avers that before the issuance of any of the bonds and coupons in the dec- laration mentioned, a bill was exhibited by citizens and tax-payers of said county against the said board of supervisors in the chancery court of the county of Carroll to restrain and enjoin said board of super- visors from the issuance and delivery of the bonds of said county upon a subscription of stock in said railroad company; and there- upon an injunction was ordered and issued, before the issuance and delivery of any of the bonds and coupons mentioned in the dec- laration, restraining and enjoining the said board of supervisors from the issuance and delivery of such bonds. And said defendant avers that the said bill of injunction was sustained and made perpetual by the judg- ment and decree of the supreme court of the state of Mississippi. And said defendant says that, notwithstanding the issuance and pendency of said injunction, and notwith- standing the refusal of two-thirds of the qualified voters of said county to vote for said subscription for stock in said railroad company, the said board of supervisors fraudulently and illegally Issued and deliv- ered the bonds and coupons in the declara- tion mentioned, in fact for a subscription for stock in said railroad company. And this the said defendant Is ready to verify. "Wherefore it prays judgment." A demurrer to each of these pleas was sustained, and judgment rendered for the plaintiff below, to reverse which this writ -of error is prosecuted. The provision in the charter of the rail- road company, authorizing the issue of bonds in payment of subscriptions by municipal bodies to its capital stock, is based upon article 12, § 14, of the constitution of the state, which declares that "the legislature shall not authorize any county, city, or town to become a stockholder in, or to lend its credit to, any company, association, or cor- poration, unless two-thirds of the qualified "voters of such county, city, or town, at a special election or regular election to be held therein, shall assent thereto." It is claimed, on behalf of the plaintiff in error, that the qualified voters referred to in the constitution of Mississippi and the charter of the railroad company are those who have been determined by the registrars to have the requisite qualifications of elect- ors, and who have been enrolled by them as such, and that it requires a vote of two- thirds of the whole number enrolled as qualified to vote, and not merely two-thirds of such actually voting at an election for that purpose, to authorize the Issue of such bonds as those in suit. That presents the single question for our decision, for the aver- ment in the last plea, that "the board of supervisors fraudulently and illegally issued and delivered the bonds and coupons," i has reference merely to their being issued with- out the alleged requisite assent of two-thirds of the registered voters, and there is noth- ing alleged in the plea from which it can be inferred that the injunction bill, pending which the bonds, it is charged, were issued and delivered, was based on any other in- firmity. We do not think the plaintiff in error is precluded from raising this question by any recitals in the bonds. They contain no statement of any election called or held, or of the vote by which the issue of the bonds was authorized. They do not embody even a general statement that the bonds were Issued in pursuance of the statutes re- ferred to. The utmost effect that can be given to them is that of a statement that a subscription to the capital stock of the rail- road company was authorized by the stat- utes mentioned, and that the sum mentioned in the bonds was part of It. They servS simply to point out the particular laws un- der which the transaction may lawfully have taken place. They say nothing what- ever as to any compliance with the require- ments of the statute in respect to which the board of supervisors were authorized and appointed to determine and certify. They do not, therefore, within the rule of decision acted on by this court, constitute an estoppel, which prevents inquiry into the alleged invalidity of the bonds. Northern Bank of Toledo v. Porter Tp., 110 U. S. 608, 4 Sup. Ct. 254; County of Dixon v. Field, 4 Sup. Ct. 315; School-Dist. v. Stone, 106 U. S. 183, 1 Sup. Ct. 84. On the other hand, we do not agree with the counsel for the plaintiff in error that the -pendency of the injunction bill, referred to in the last plea, affects the title of the defendant in error, as a bona fide holder of the bonds for value,' or that this court is bound to follow and ap- ply the judgment of the supreme court of Mississippi in that case, reported as Haw- kins V. Carroll Co., 50 Miss. 735, perpetuat- ing the injunction, on the ground that the constitution and laws of the state required a majority of two-thirds of those qualified to vote to be cast at the election, to support the validity of the bonds. The defendant in error was no party to that suit, and the record of the judgment is therefore no estoppel. The bonds were negotiable, and there was, therefore, no constructive notice of any fraud or Illegality, by virtue of the doctrine of lis pendens. County of Warren V. Marcy, 97 U. S. 96. It is not alleged in the plea that the defendant in error had ac- tual notice of the litigation, or of the grounds 36 MUNICIPAL AID TO RAILROADS. on which it proceeded, or that any injunc- tion was served upon the board of supervis- ors; and, if he had, that notice would have been merely of the question of law, of which, as we have seen, he is bound to take notice, at all events, and which is now for adjudication in this case. There is noth- ing in the case of Williams v. Cammack, 27 Miss. 209, 224, to which we are referred by counsel on this point, inconsistent with these views. The decision in Hawkins v. Carroll Co., supra, is not a judgment of the supreme court of Mississippi, construing the consti- tution and laws of the state, which, without regard to our own opinion upon the ques- tion involved, we feel bound to adopt and apply in the present case. It is a decision upon the very bonds here in suit, pronounced after the controversy arose, and between other parties. It was not a rule previously established, so as to have become recognized as settled law, and which, of course, all parties to transactions afterwards entered into would be presumed to know and to conform to. When, therefore, it is present- ed for application by the courts of the Unit- ed States, in a litigation growing out of the same facts, of which they have jurisdiction by reason of the citizenship of the parties, the plaintiff has a right, under the consti- tution of the United States, to the independ- ent judgment of those courts to determine for themselves what is the law of the state by which his rights are fixed and governed. It was to that very end that the constitu- tion granted to citizens of one state, suing in another, the choice of resorting to a fed- eral tribunal. Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. 10. We have, however, considered the reason- ing of the supreme court of Mississippi, iu its opinion in the case of Hawkins v. Carroll Co., with the respect which is due to the highest judicial tribunal of a state speaking upon a topic as to which it is presumed to have peculiar fitness for correct decision, and, while we are bound to admit the care- fulness and fullness of its examination of the question, we are not able to adopt its conclusions. On the contrary, we are con- strained to follow the decision in St. Joseph Tp. V. Rogers, 16 Wall. 664, and adhere to the views expressed by this court in County of Cass V. Johnston, 95 U. S. 360, in deciding the same question upon the construction of a provision of the constitution of Missouri which Is Identical wfth that of the constitu- tion of Mississippi under consideration. It was there declared and decided that "all qualified voters, who absent themselves from an election duly called, are presumed to assent to the expressed will of the ma- jority of those voting, unless the law pro- viding for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect is clearly expressed." In Missouri, as in Mississippi, there was a constitutional provision requiring a registration of all qual- ified voters. State v. Sutterfield, 54 Mo. 391. Much stress in the argument was laid by the supreme court of Mississippi upon the registration record, as furnishing the stand- ard by which to ascertain the proportion of qualified voters whose assent was required by the constitution. On this point they say, (50 Miss. 761:) "There exists, therefore, in each county a registration of the list of voters, which ought to show, with approx- imate accuracy, the names of thoee entitled to vote 'at any election.' In ascertaining, therefore, the result of an election requiring two-thirds of the qualified voters of the coun- ty to assent thereto, we think that the reg- istration books are competent evidence on the point of the number of qualified voters in the county. It would be open to proof to show deaths, removals, subsequently in- curred disqualifications, etc. When the con- stitution uses the term 'qualified electors,' it means those who have been determined by the registrars as having the requisite qualifications by enrolling their names, etc. It would be a fair construction of the four- teenth section to hold that the 'two-thirds' meant that number of the whole number whose names had been enrolled as legal voters. That furnished ofiicial evidence of those prima facie entitled to vote. But, in this case, in addition to the information contained in the registration books, it Is admitted that there were from 2,000 to 2,500 qualified voters in Carroll county at the date of this election. The proposition sub- mitted did not have the assent of two-thirds as required by the constitution. The diffi- culty of proving the number of voters In the county has been obviated by this ad- mission." But this reasoning, as it seems to us, does not meet, much less overcome, the difficulty of the argument. The constitution of Mis- sissippi, although it does not recognize any voters as qualified, except such as are regis- tered, does not make all persons, registered as such, qualified. And yet, if it Is to be construed, in the clause in question, as referring to the registration as conclusive, of the number of qualified voters, then no proof is competent to purge the list of those who never were quali- fied, or have died, removed, or become other- wise disqualified, thus obliterating the distinc- tion between registered and qualified voters; and if, on the other hand, it is to be construed as meaning voters qualified, in fact and In law, without reference to the sole circum- stance of registration, then the body of electors Is as indefinite as though there were no registration, and the determination of the- whole number, if an actual enumeration is required to determine how many are two- thirds thereof, is completely a matter in ■ pais, and must be inquired of and ascer- tained, in each case, by witnesses. The MUNICIPAL AID TO RAILROADS. 37 difficulty, if not the impossibility, of reach- ing results by such methods, amounts al- most to demonstration that such could not have been the legislative intent, or the mean- ing of the constitution. The number and qualification of voters at such an election is determinable by Its result, as canvassed, ascertained, and declared by the officers ap- pointed to that duty, or as subsequently corrected by a contest or scrutiny in a direct proceeding, authorized and instituted for that purpose; it cannot be contested in any collateral proceeding, either by inquiry as 1o the truth of the return, or by proof of votes not cast, to be counted as cast against the proposition, unless the law clearly so re- quires. In our opinion, the constitution of Mississippi did not mean, in the clause un- der consideration, to introduce any new rule. The assent of two-thirds of the quali- fied voters of the county, at an election law- fully held for that purpose, to a proposed issue of municipal bondSj intended by that instrument, meant the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. The words "qualified voters," as used in the constitu- tion, must be taken to mean not those quali- fied and entitled to vote, but those qualified and actually voting. In that connection a voter is one who votes, not one who, al- though qualified to vote, does not vote. We are, consequently, of opinion that there is no error in the judgment of the cir- cuit court, and it is accordingly affirmed. Cf. OreiBon v. .Jennings (1886) 119 tJ. S. 74, 7 Sup. Ct. 124; Pleasant Township v. Aetna Life Ins. Co. (1891) 138 U. S. 67, 11 Sup. Ct. 215. 38 SHAEEHOLDERS. Preferred stock. Relation of stockholders to creditors WARREN et al. v. KING et al. (108 TJ. S. 389, 2 Sup. Ct. 789.) Supreme Court of the United States. May 7, 1883. Appeal from the circuit court O'f the United States for the district of Indiana. G. P. Lowrey, for appellants. B. M. John- son, Benj. Harrison, and W. H. Peckham, for appellees. BLATCHFORD, J. In Noyember, 1876, William King and others, holders of second- mortgage bonds and of Springfield Division bonds of the Ohio & Mississippi Railway Company, filed a bill in the circuit court of the" United States for the district of Indiana, to foreclose two mortgages on the property of the company, subject to a first mortgage. In August, 1877, Allan Campbell, a defend- ant in that suit and trustee of one of the two mortgages, called the second mortgage, and also of the first mortgage, filed a bill and a cross-bill in the same court to fore- close those two mortgages. In January, 1879, the two suits were consolidated. In December, 1879, George Henry Warren and others, as owners of preferred stock of the company, having been made parties defend- ant to the consolidated suit, filed a cross-bill. To this cross-bill a general demurrer for want of equity was interposed. The court sustained the demurrer, and entered a de- cree dismissing the cross-bill for want of equity. King v. Railroad Co., 2 Fed. 36. From this decree the plaintiffs in that bill have appealed to this court. The sole question involved is whether the prefeired stockholders are entitled to have their shares of stock declared to be a lien on the property of the company next after the first mortgage. As the question arises on demurrer, the allegations of the cross-bill are to be taken as true. The Ohio & Mis- sissippi Railroad Company, having been in- corporated by Indiana in February, 1848, was incorporated by Ohio in March, 1849, and by Illinois in February, 1851. Under a second mortgage made by it in January, 1854, all the property and franchises of the Illinois company were sold, on a foreclosure of that mortgage, in June, 1862, to the Ohio & Mississippi Railroad Company, an Illinois corporation created in February, 1861, for the purpose of purchasing the property and franchises of the Illinois corporation of Feb- ruary, 1851. The property and franchises of the Indiana and Ohio corporations were sold, under judicial decrees, in January, 1867, subject to certain mortgage debt recited in the decrees, to Allan Campbell and others, "trustees of creditors and stockholders of said Ohio & Mississippi Railroad Company, (Ea,steru Division.)" This trust was created by an instrument in writing, dated Decem- ber 15, 1858, and known as the "trust agree- ment of creditors and stockholders of the Ohio & Mississippi Railroad Company of In- diana and Ohio." By it Allan Campbell and others were created trustees, for the purpose of providing for and protecting claims of judgment creditors and other pei-sons holding liens on the property and franchises of the company, and also certain holders of un- liquidated demands against it, and also the interests of the stockholders of the company. Such interests of the creditors and stock- holders became vested in the trustees from time to time, so that on the fourteenth of September, 1867, they were the ovmers, sub- ject to the terms of the trust agreement, of the rights, claims, and interests of all the creditors and stockholders of the company in its property and franchises, except those ex- isting under a first mortgage made in May, 1853. The trustees issued, in exchange for the interests they so acquired, certificates in two classes, preferred and common. Under an amendment, made In April, 1863, to the trust agreement, the trustees purchased, for the benefit of the trust and the persons in- terested therein under the agreement of De- cember, 1858, all the stock and a portion of the bonds of the Illinois company of 1851, sometimes called the Western Division. On the fourteenth of September, 1867, the certificate holders, by an instrument known as "Amendments to the trust agreement of December, 1858," resolved that the trustees had made the purchase of January, 1867, for the benefit of those interested in the trust agreement of December, 1858, and had, in virtue of the amendment of April, 1863, pur- chased all the stock and a portion of the bonds of the Illinois cojnpany of 1851; that, by such purchases, the whole road from Cincinnati to St. Louis had become the prop- erty of the trust, subject only to outstanding mortgages; that it was the intention of all parties interested in the trust to form a new corporation, to which the entire prop- erty of the ti-ust might be transferred, in ac- cordance with the original agreement, such property to consist of all the rights and in- terests in the railroad in the three states; that the capital stock of the new corporation should consist of 35,000 shares of preferred stock and 200,000 shares of common stock, being in all $23,500,000 of stock, which should be issued and distributed to the owners of trustees' certificates registered on the books of the trust, as follows, namely, to owners of preferred certificates, preferred full-paid stock, for the amount of such preferred cer- tificates, at the rate of one share of preferred stock for every $100 of preferred certificates; that it should "be declared upon the face of said preferred stock that it Is to be and re- main a first claim upon the property of the corporation after its indebtedness;" that the holders thereof shall be entitled to receive from the net earnings of the company 7 per cent, per annum upon the amount of said stock, payable semi-annually, "and to have such interest paid in full, for each and every year, before any payment of dividend upon SHAREHOLDERS. 39 the common stock of said corporation, and that whenever the net earnings of the cor- poration which shall, be applied in payment of Interest on the preferred stock and of dividends on the common stock shall tie more than sufficient to pay both said interest of 7 per cent, on the preferred stock in full, and 7 per cent, dividend upon the common stock for the year in which said net earn- ings are so applied, then the excess of such net earnings, after such payments, shall be divided upon the preferred and common stock equally, share by share;" that the com- mon stock should be issued to holders of common certificates at the same rate; that the new corporation should be authorized to create a new mortgage on its entire property, consisting of 340 miles of railroad from Cin- cinnati to St. Louis, and upon the contem- plated Improvements thereon, for an amount not exceeding $6,000,000, $4,000,000 whereof should be used exclusively to take up the then outstanding bonds issued under the mortgages theretofore created on said road; that, if a branch should be built to Louisville, the new corporation might increase the pre- ferred stock at the rate of $10,000 for each mile in length of such branch, and the $6,- 000,000 mortgage to the amount of $15,000 for each mile of such branch; and that hold- ers of the outstanaing bonds of the old com- pany, both eastern and western divisions, and holders of bonds to be issued by the new corporation, should be entitled to one vote for each $100 of bonds so held, at all stockholders' meetings, and on all affairs of the corporation. Under statutes of Indiana and Ohio, Allan Campbell and others, as such trustees, be- came a corporation In those states by the name of the Ohio & Mississippi Railway Company. . Its capital stock was fixed at 35,- 000 shareg, of $100 each, of preferred stock, and 200,000 shares, of $100 each, of common stock, and provision was made, in the cer- tificate of incorporation, for increasing its preferred stock in an amount not exceeding $10,000 a mile for each mile of a branch to Louisville. In November, 1867, the Illinois company and the Indiana and Ohio company were consolidated under the name of the Ohio & Mississippi Railway Company, by articles of consolidation which provided for issuing preferred and common capital stock of the consolidated company to the extent above stated, and that the consolidated cor- poration should be authorized to create a new mortgage on the road for $6,000,000, of which $4,000,000 should be appropriated and used to take up the then existing mortgage bonds of the property, and should have "all such further powers and rights as are con- ferred and contemplated in certain amend- ments adopted by the certificate-holders at a meeting held by them on the fourteenth day of September, A. D. 1867, of an agreement dated December 15, A. D. 1858, of the cred- itors and stockholders of the Ohio & Missis- sippi Railroad Company of Indiana & Ohio, said agreement representing a trust which, at the date of said amendments, embodied the entire ownership of the property of both said companies so consolidated." The consolidated company issued preferred stock to the amount of 35,000 shares, upon certificates In the following form: "Ohio and Mississippi Railway Company. Reorganized and Consolidated 1867. PrefeiTed Stock. This is to certify that is entitled to shares of the preferred capital stock of the Ohio & Mississippi Railway Company, of $100 each, transferable only on the books of said company, in the city of New York, in person or by attorney, on the surrender of this certificate. The preferred stock is to be and remain a first claim upon the property of the corporation after its indebtedness, and the h;>lder thereof shall be entitled to re- ceive from the net earnings of the company 7 per cent, pe^ annum, payable semi-annual- ly, and to have such interest paid in full, for each and every year, before any pay- ment of dividend upon the common stock; and whenever the net earnings of the coi-- poration which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than suflicient to pay both said interest of 7 per cent, on the preferred stock in full, and 7 per cent, dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earn- ings after such payments shall be divided upon the preferred and common shares equal- ly, share by share." These preferred shares were issued in ex- change for the trustees' preferred certifi- cates, in pursuance of the resolutions of September 14, 1867. The cross-bill alleges that the certificate-holders, by the resolu- tions of September 14, 1867, intended and de- clared that the preferred stock to be issued should give to its holders, not only a prefer- ence in respect to dividends over the com- mon stock, but also the preference of a spe- cific and continuing lien and security upon the property of the new corporation, next after the then existing mortgage indebted- ness; that it was in accordance with and in execution of this intention that the certifi- cate-holders further resolved that it should be declared upon the face of the certificates of such preferred stock that it should be and remain a first claim upon the property of the corporation after its indebtedness; that the indebtedness referred to in the resolutions, and In the preferred-stock certificates, was such indebtedness only as should arise under the $6,000,000 mortgage, that amount being designed to represent, and having been au- thorized for the purpose of taking up and canceling, the indebtedness existing at the time of the consolidation on the property of the two consolidating companies; and that the consolidated company, under the articles of consolidation, became bound to perform 40 SHAREHOLDERS. the provisions of the amendments of Septem- ber, 1867, to the trast agreement, as to pre- ferred stock, and the securing the same on the property of the consolidated company to the full intent thereof. Besides the preferred stock to the amount of $3,500,000, further preferred stock, in the above form, to the amount of $800,000, was issued on the building of the Louisville branch. The plaintiffs in the cross bill, as owners of shares of such preferred stock, aver that they, in common with the other prefer- red stockholders, had and have a lien and security and first claim upon all the property and franchises of the consolidated company which existed at the time of the original issue of such preferred stock, in or about the year 1867, next after and subject only to the indebtedness under the $6,000,000 mort- gage, as authorized by said articles of con- solidation, as representing and designed to cover and cancel the only indebtedness on either of the consolidated roads which was outstanding at the time of such consolidation, and are entitled to the payment of interest, as stipulated in the certificate, out of such net earnings of the company as may remain after the payment of interest on first-mort- gage bonds, and in priority and pi-eference to the payment of any interest or indebtedness under any mortgage subsequent in date to the first mortgage, that being a mortgage ex- ecuted in December, 1867, under which bonds to the amount of about $6,800,000 have been issued. Under the so-called second mortgage, issued in March, 1871, and sought to be fore- closed in the original suit, $4,000,000 of bonds have been issued. The other mortgage sought to be foreclosed in the original suit is called the Springfield Division mortgage, and was executed in January, 1875, to secure $3,000,- 000 of bonds. The bill prays for a decree that such pre- ferred stockholders are entitled, as such, to, and have always had, a specific and continu- ing lien and security and first claim upon and in all the propei-ty and franchises of the com- pany, next after, and subject only to, the in- terest and security therein which is given un- der the first mortgage of December, 1867, and have been and are entitled to receive 7 per cent, interest upon their shares, out of the net earnings of the company remaining after the payment of interest to the holders of the first-mortgage bonds. It also prays that, in any decree of foreclosure of either of the mortgages so sought to be foreclosed, the rights of the preferred stockholders may be declared to be a lien and security on the prop- erty and franchises of the company next aft- er that secured by the first mortgage of De- cember, 1867; that, in case of foreclosure of the first mortgage, all surplus, after the sat- isfaction of claims thereunder, be applied, first, to payment in full, or pro rata, of the par value of their shares, to the preferred stockholders; and that, in case of foreclosure of either the second mortgage or the Spring- field Division mortgage, the decree therein shall provide that any sale, in either of such cases, shall be subject to not only the amount due under the first mortgage, but also, and next in order, to the amount at par of the preferred stock, with all unpaid interest due thereon at 7 per cent. The rights of the holders of preferred stock In this case must be determined by the lan- guage of the stock certificate. That is ex- actly the same as the language of the writ- ten instruments which preceded the issuing of the certificates. The shares are shares of the capital stock of the company, though shares with different privileges from shares of the common stock. The certificate de- clares the quality of the preferred stock in two respects: (1) Its relation to the property of the company; (2) its relation to the net earnings. As to the property, it is declared that the prefeiTed stock is to be and remain a first claim on the property of the company "after its indebtedness." But it is stock, and part of the capital stock, with the charac- teristics of capital stock. One of such char- acteristics is that no part of the property of a corporation shall go to reimburse the principal of capital stock until all the debts of the corporation have been paid. It would require the clearest language to admit of the application of a different rule to any capital stock. Section 5 of the statute of Indiana of June 15, 1852, "establishing provisions re- specting corporations," (1 Davis' St. 369,) en- acted as foUows: "If any part of the capital stock of such company shall be withdrawn and refunded to the stockholders before the payment of all the debts of the company, all the stockholders of such company shall be jointly and severally liable for the payment of such debts." The railroad law of Indiana of March 3, 1865, (1 Davis' St. 73Q,) entitled "An act to authorize, regulate, and confirm the sale of railroads, to enable purchasers of the same to form coi-porations and to exercise corporate powers, and to define their rights, powei-s, and privileges, to enable such cor- porations to purchase and construct connect- ing and branch roads, and to operate and maintain the same," under which law this company was reorganized, provided, in sec- tion 5, that the corporation should have pow- er to "make preferred stock, make and es- tablish preference in respect to dividends in favor of one or more classes of stock over and above other classes, and secure the same, In such order and manner, and to such ex- tent, as said corporation may deem expedi- ent;" and section 20 of the general law of In- diana of May 11, 1852, providing for the "in- corporation of railroad companies," (1 Davis' St. . 706,) provided that a coi-poratlon organ- ized under it might issue "a preferred stock to an amount not exceeding one-half of the amount of its capital, with such priority over the remaining stock of such company, in the payment of dividends, as the directors of such SHAREHOLDERS. 41 company may determine, and shall be ap- proved by a majority of the stockholders." It would be difficult to say that these stat- utory provisions allowed any preference in shares of capital stock, except a preference among classes of shares, or any preference of any class of shareholders over ci-editors. It is not to be supposed that those engaged in reorganizing this company intended to vio- late the law of Indiana, or the general prin- ciples of law applicable to private corpora- tions. Nor is there anything to show that they did. The language of the certificate is •entirely satisfied by referring it to a priority in rank of the preferred stock over the com- mon stock; to a first claim of the prefer- red stock on the property of the corporation, after its indebtedness should be paid, when there should be moneys to be divided among stockholders, — a claim which should be first as compared with the claim of other stock. Claims of stockholders, as such, on the corpus of the property of the company in which they are stockholders, do not arise until the debts of the company are paid. Until then the shares confer rights merely as regards profits and voting power. It is urged, for the appellants, that the ex- pression "after Its indebtedness" means, next after the indebtedness then existing or then authorized; that the preferred stock was is- sued to the holders of preferred certificates, owners of the property, as a quasi purchase- money mortgage on its sale; and that they intended to preserve their position except as to the new $6,000,000 mortgage, because they authorized that and did not authorize any other. It is very certain that at best the words "after its indebtedness" are, by them- selves, ambiguous on their face, and are as capable of being applied to futm-e indebted- ness as of being limited to then existing in- debtedness. Under the general rules applica- ble to the position of the stockholders of a corporation as regards its creditors, a claim of the kind here made should rest on clear and not doubtful language. But the provi- sion which follows, as to the rights of the preferred stock in the net earnings of the company, leav^ no doubt as to the meaning of the whole. There is a unity of right in the claim of the preferred stock on the prop- erty of the company, and in the title of its holder to receive a share of the net earnings of that property. His proprietorship in those earnings is a right to receive from them so much a year, if earned, before the common stock receives any dividend therefrom, and, when the two classes of stock have each re- ceived the same specified amount out of the year's net earnings, he has the right to share equally in the surplus with the holder of com- mon stock. Thus he can have no income on his stock unless there are net earnings. Those net earnings are what Is left after paying current expenses and interest on debt, and everything else which the stockholders, pre- ferred and common, as a body corporate, are liable to pay. The holders of preferred stock have the same relation, by virtue of the cer- tificate, to the corpus of the property, which they have to its net earnings. Their position in regard to both is one inferior to that of all creditors. They are not preferred as to re- imbursement of principal, or as to a right to net earnings, over any one but the holders of common stock. The Interest to be paid to them is not to be paid absolutely, as to a creditor, but only out of net earnings— the same fund out of which the dividends on com- mon stock are to be paid. Though called "Interest," it is really a dividend, because to be paid on stock and out of net profits. Tliere was no restriction on the creation of future indebtedness, and, necessarily, the net earn- ings of future business would be ascertained In reference to such future indebtedness and the interest on it; and the words "its in- debtedness," in the same sentence, naturally mean "its future indebtedness," in reference to which the net earnings subsequently treat- ed of are to be ascertained. Creditors may resort to the body of their debtor's property for interest as well as principal. But these holders of preferred stock are limited, for any income or interest, to the net earnings. There is nothing in the certificate which clothes them with a single attribute of a creditor, while It specially gives them, as stockholders, an equal interest with the com- mon stockholders in, the excess of net earn- ings in each year, after paying therefrom 7 per cent, on each share of stock, preferred and common. Whatever position the holders of preferred certificates occupied before they accepted preferred stock, whatever special right of lien they had, they became corporators, pro- prietors, shareholders, and abandoned the po- sition of creditors, and took up towards ex- isting and future creditors the same position which every stockholder In a corporation oc- cupies towards existing and future creditors. His chance of gain, by the operations of the corporation, throws on him, as respects cred- itors, the entire risk of the loss of his share of the capital, which must go to satisfy the creditors in case of misfortune. He cannot be both creditor and debtor, by virtue of his ownership of stock. In this case all the par- ties holding trustees' certificates united to form the new corporation, and converted themselves into stockholders in it. It seems very clear that if the trustees rep- resenting the holders of trustees' certificates had gone on and operated the road for them, not organizing a new company, any debts contracted by the trustees in the business would have had priority over the claims of the holders of such certificates. So, in be- coming stockholders In the new company, with the right to vote as to its management, and to share in its earnings, they must have Intended to allow, through the corporation, a priority of like debts over their claims as stockholders. 42 SHAREHOLDERS. The same principles must govern the pres- ent case which were applied by this court in St. John V. Railway Co., 22 Wall. 130, where creditors took preferred stock. It was held that they ceased to be creditors and could he regarded only as stockholders, with a chance for dividends out of net earnings and the power of voting, and a priority over hold- ers of common stock, but not a priority over debts subsequently contracted. Much stress is laid on the averment in the cross-bill that the existence of the preferred stock and of the certificates therefor and of their contents wa. under all or any probable set of circum- stances. But in cases involving the ques- tion of negligence, where this general rule of conduct is the only rule of law applica- ble, it may, and sometimes does, happen that the conduct under investigation is so manifestly contrary to that of a reasona- bly prudent man, or is so plainly and palpably like that of such a man, that the general rule itself may be applied as a matter of law, by the court, without the aid of a jury; that is, the conduct may be such that no court could hesitate or be in doubt concerning thequestion whether the conduct was or was not the conduct of a person of ordinary prudence, under the circumstances. The difference between the classes of cases where the court can thus apply the general rule of conduct, and those whei-ein it must be applied by the jury, is well il- lustrated in the following extract from the opinion of the supreme court of the United States in the case of Railroad Co. V. Stout, 17 Wall. 6.57: "If a sane man voluntarily throws himself In contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled as a matter of law that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives. So, if a coach-driver intentionally drives within a few inches of a precipice, and an accident happens, neg- ligence may be ruled as a question of law. On the other hand, if he had placed a suit- able distance between his coach and the precipice, but by the breaking of a rein or an axle, which could not have been antici- pated, an injury occurred, it might be ruled, as a question of law, that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to these inter- 110 NEGLIGENCE. mediate cases that the opposite rule pre- vails. Upon the facts proven in such cases, it is a matter of sound judgment and disci-ption, of sound inference, what is the deduction to be drawn from the undis- puted facts. Certain facts we may sup- pose to be clearly established, from which one sBusible, impartial man would infer that proper care had not been used, and that nesjlisence existed; another eijually sensible and equally impartial man would infer that proper care had been used, and that there was no nesliKence. It is this class of cases, and those akin to it, that the law commits to the decision of a jury." 'I'lie line of division between these two classes of cases is by no means a fixed and well-defined one. Close cases will occur where courts may well differ in opinion as to whether they lie on one side or on tlie other of the boundary line. "LeKal, like natural, divisions, however clear in their general outline, will be found, on exact scrutiny, to end in a penumbra or debat- able land." Holmes, Com. Law p. 127. Now, tlie difficultj' of determining wheth- er a conclusion or inference of negligence is one "of fact" or one "of law," as these phrases are commonly used, arises mainly in this intermediate class of cases. In such cases, the law itself furnishes no certain, specific, sufficient standard of conduct, and, of necessity, leaves the trier to deter- mine, both what the conduct is, and whether it comes up to the standard, as such standard exists in the mind of the trier. In a case of this kind, the inference or conclusion of the trier,-upon the ques- tion whether the ascertained conduct ■does or does not come up t(i such stand- ard, is, as we have said, called a "ques- tion of fact," and, generall.y speaking, it •cannot be reviewed'by this court. If such inference is drawn by a jury, it is final and conclusive, because their opinion of what a man of ordinary prudence would or would not do, under the circumstances, is the rule of decision in tliat special case. If drawn by a single trier, as it may be, under our system of law, it is equally final and conclusive for the same reason. In •every such case, the trier, for the time be- ing, adopts his own opinion, limited only by the general rule of what the man of or- ■ dinar.v prudence would or would not do, under the circumstances, and makes such opinion the measure or standard of the conduct in question. This view of the subject is forcibly put by Cooi.ey, J., in the case of Railroad Co. v. Van Steinburg, 17 Mich. 99, wherein he says: "When the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and measures the plaintiff's conduct by that. He thus makes his own opinion of what the prudent man would do a defi- nite rule of law. " And, in speaking of this same matter, the supreme court of Penn- sylvania uses the following language: "When the standard shifts with the cir- cumstances of tlie case, it is, in its very nature, incapable of being determined as a matter of law, and must be submitted to the jury. There are, it is true, some cases in which a court can determine that omissions ccmstitute negligence. They are those in which the precise measure of duty is determinate, the same under all circum- stances. When the duty is defined, a fail- ure to perform it is, of course, negligence, and may be so declared by the court. But where tlie measure of duty is not unvary- ing, where a higher degree of care is de- manded under some circumstances than under others, where both the duty and the extent of performance are to be ascer- tained as facts, a jury alone can deter- mine what is negligence, and whether it has been proved. Such was this case. The question v?as not, alone, what the defendants had done or left undone; but, i.i addition, what a prudent and reason- able man would ordinarily have done un- der the circumstances. Neither of these questions could the court solve." And later on, in the same'opinion.in comment- ing upon a case cited by the plaintiff, the court says: "Even if the court might, in that case, have declared the effect of the evidence, it must have been because the duty of the defendants was unvarying, and well defined by the law. Here the standard of duty was to be found as a fact, as well as the measure of its perform- ance." McCully V. Clark, 40 Pa. St. 39a. In his book on the common law. Judge Holmes speaks as follows: " When a case Arises in which the standard of conduct, pure and simple, is submitted to the jury, the explanation is plain. It is that; the court, not entertaining any clear views of public policy applicable to the matter, de- rives the rule to be applied from daily ex- perience, as it has been agreed that the great body of the law of tort has been de- rived. But the court further feels that it is not itself possessed of suflicient practi- cal experience to lay down the rule intel- ligently. It conceives that twelve men, taken from the practical part of the com- munity, can aid its judgment." Holmes, Com. Law, p. 12:3. In treating of contributory negligence, Mr. Beach, in his work on that subject, says: "In the ultimate determination of the question whether the plaintiff was guilty of contributory negligence, two sep- arate inquiries are involved : First, vrhat was ordinary care, under the circum- stances? Second, did the conduct of the plaintiff come up to that standard? With respect to the standard of ordinary care, it is not always a fixed standard. In many cases it must be found by the jury. In such a case, each of these inquiries is for the jury. They must assume a stand- ard, and then measure the plaintiff's con- duct b.v that standard. Whenever the standard is fixed, and when the measure of duty is precisely defined by law, then a failure to attain that standard is negli- gence in law, and a matter with which the jury can properly have nothing to do." Beach, Contrib. Neg. p. 459, § 163. The distinction between these two classes of cases is a fundamental one, and not one of mere form. It is sometimes said that, where all the facts are found, the mode of stating the inference or conclusion of neg- ligence will make it one ol law or fact, as the case may be. But this clearly is not so. No mere mode of statement, whether found in a special verdict or in a special plea, or in a finding of facts, can convert the one into the other. In Beers v. Rail- NEGLIGENCE. Ill road Co., 19 Conn. 566, this court said : " If it were competent for the defendant.^! to have availed themselves of a want of ordi- narj and reasonable care on the part of the plaintiff by a special plea, and that plea should allege raei-el.v the facts or cir- cumstaneres on which the defendant claims that the court should have declared to the jury that such want of care wag proved, or it they had been found in a special .ver- dict by the jury, it is quite clear that such plea or verdict would be unavailable to the defendant.? on the question, for the reason that the one would allege and the other would find only evidence of the fact In issue, and not the fact itself. " In Will- lams v. Clinton, 28 Coun. 'JQi, this court said : "Under the pleadings, the issue pre- sented nothing but a question of fact, — was there or not culpable negligence on her part? We cannot permit such a ques- tion to be taken from the jury, the legal andconstitutional tribunal, by the defend- ants specially reciting the evidence adduced on the trial, and claiming that the court shall instruct them as to its legal effect. Such a course would speedily put an end to all jurv trials. " In Fiske v. Bleaching Co.. 57 Conn. 119, 17 Atl. Rep. 350, this court said : "The only error assigned in this case is that the court below held that, 'upon the facts found, the defendants were guilty of negligence in leaving their liorses un- hitched and unattended, iu the manner de- scribed.' The finding of the court states all the facts with great particularity. * * * But the question of negligence cannot thus be made a question of law." In the following cases the lindings of facts were substantially similar in form to the finding of facts in the case at bar, j-et this court held, and rightly, that it had no power to review the conclusion as to neg- ligence. Daniels V. Saj'brook,34 Conn.377; Conadon v. Norwich. 37 Conn. 414; Young V. New Haven, 39 Conn. 435; Brennan v. Railroad Co., 45 Conn. :ix4; Davis v. Town of Guiliord. 55 Conn. 356, 11 Atl. Rep. 350. On the other hand, where special findings of fact were made, and from those facts the trial court formally drew the conclu- sion as to negligence, this court, notwith- standing the form of the finding, held the conclusions to be conclusions of law, and reviewed them. Beardsley v. Hartford, 50 Conn. 529; Nolan v Railroad Co. ,.53 Conn. 401, 4 Atl. Rep. 106; Bailey v. Railroad Co., .'56 Conn. 444, 16 Atl. Rep. 234; Dyson V. Railroad Co. ,57 Conn. 9,17 Atl. Rep. 137. It is frequently supposed or assumed that it makes some difference in this mat- ter whether the case is tried to the jury or to the court, hut this is not so. Whether the trier is one man or twelve men makes no difference. If the case is such that the trier, and not the law, must determine whether the conduct in question is or is not that of the prudent man, the conclu- sion of the single trier upon this point is jast as binding- and final as that of twelve men. In Shelton v. Hoadley, 15 Conn. 5-35, this court held that where an issue of fact is closed to the court, instead of to the jnry,the conclusion of the court cannot be reviewed upon a bill of exceptions, which sets out all the facts, any more than the verdict of a jury could be in like circum- stances. And inBrady V.Barnes, 42 Conn. 512, it is said: "When an issue of tact is closed and tried by the superior court, this court will not, upon evidence reported, as- sume the responsibility of finding, by infer- ence therefrom, a fact which that court could not find. The principles and the reasons which protect the sovereignty of juries over facts, when issues are closed to them, underlie this right of auditors and committees in chancery; for they are but statutory juries finding facts by forms of procedure peculiar to themselves. " So, al- so, in Stannard v.Sperry,56 Conn. 541, litls said: "Under our system, whenever the court, or a committee of its aiDpointment, finds a tact, such finding is beyond revis- ion or correction, equally with the verdict of a jury, if there be no illegality in the mode of proceeding, and no intentional wrong done. Errors of judgment .as to the value of property must stand uncor- rected. This is equally true of the find- ing of a committee appointed to hear and find in place of and for the court. If its finding of facts is to be reviewed in every case by the court, its hearing becomes a useless expenditure of labor and money." It may be said that this view of the sub- ject leaves the parties at the mercy of the ti'ier. A like objection, taken in the case last above cited, was thus answered in the opinion: "The defendant suggests that, if this be so, he is at the mercy of the committee, as to the value of his part. But this fact does not vitiate the proceed- ing. That every person shall be at the mercy of some tribunal, both as to law and fact, is the only reason for the exist- ence of a judicial system. " The distinction in question, then, being in general a fundamental and important distinction, the question remains whether any general rule exists, the application of which will determine in every case, with certainty, whether the inference as to neg- ligence to be drawn from ascertained facts is one of fact or of law, in the sense ex- plained. Perhaps no such general rule has been or can be formulated. At any rate, we know of none, and we do not intend in the present case to lay down any such general rule. But cases involving; the dis- tinction in question have been frequently before the courts; they have been decided upon principles which have been, to some extent, formulated into working rules; and these rules can be applied v\ith rea- sonable certainty in most cases that arise in actual practice. In his work on Torts, Judge Cooley states such a rule as follows: "The proper conclusion seems to be this: If the case is such that reasonable meji, unaffected by bias or prejudice, would be agreed concerning the presence or absence of due care, the judge wouldbe quite jus- tified in saying that the law deduced the conclusion accordingly. If the facts are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the judge should not be compelled to submit the question to the jury as one in dispute. " Cooley, Torts, p. 670. In the case of Railroad Co. v V'an Steinburg, supra. Judge Cooley stated the rule as follows: "It is a mistake to say, as is sometimes said, that, when the facts are 1 16 Atl. 261. 112 NEGLIGENCE. undisputed, the question of negligence is necessarily one of law. This is generally true only of that clarfs of cases, where a party has failed in the performance of a clear legal duty. When the question arises upon a state of facts on which rea- sonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of these conclusions has been drawn by the jury. The inferences must either be cer- tain or uncontrovertible, or they cannot be decided by the court. " Wharton says : "The true position is this: Negligence is always a logical inference, to be drawn by the jury from all the circumstances of the case, under the instructions of the court. In all cases in which the evidence is such as not to justify the inference of negligence, so that a verdict of a jury would be set aside by the court, then it is the duty of the court to negative the in- ference. In all other cases tile question is for the jury, subject to such advice as may be given by the court as to the force of the inference." Whart. Neg. § 420. The rule laid down by Judge Cooi.F.r is sub- stantially like the one adopted by the supreme court of the United States in the case of Railroad Co. v. Stout, supra. The rule is thus stated in Terry, Anglo- Amer. Law, par. 72: "The question, was the specific conduct of the specific person, in the specific circumstances, reasonable or not? must usually remain as a ques- tion which is really one of fact. When the reasonableness or unreasonableness of the conduct is very plain, the court will decide it. When it seems to the court fairly to admit of doubt, it will be handed over to the jurj'." Mr. Beach, in his work on Contributory Negligence, p. 454, states the rule as follows: "When the facts are unchallenged, and are such that reason- able minds could draw no other inference or conclusion from them than that the plaintiff w^as or was not at fault, then it is the province of the court to determine the question of contributory negligence as one of law. " In Ochsenbein v. 8hapley, 85 N. Y. 214. the court stated the rule thus: "When the facts are undisputed, and do not admit of different or contrary inferences, the question is one of law for the court." Thi^i also substantially ap- pears to be the rule in Ohio and Califor- nia. Railroad Co. v. Crawford, 24 Ohio St. Gi31 , McKeever v. Railroad Co., 59 Cal. 294. It is perhaps unnecessary to say that, in making the foregoing citations from text-writers and decisions, we do not necessarily adopt or approve of all their conclusions, or the rule precisely as stated by them ; but we think some of the principles stated, upOn which the rules are or profess to be based, will furnish a practical guide for the solution of the question we are considering, in cases like the one at bar. Manifestly this frequently recurring question ought to be decided upon principle, so far as it is possible to do so. We think an examination oF the cases from our own reports, heretofore cited, and of others therefrom, that might be cited, involving the question of negligence, will show that this court, in such decis- ions, has applied principles which, la most cases occurring in practice, will solve the question under consideration without much difficulty. From such an examina- tion, we think it will appear that, in cases involving the question of negligence, where the general rule ofconduct is alone applica- ble; where the facts found are of such a nature that the trier must, as it were, put himself in the place of the parties, and must exercise a sound discretion, based upon his experience, not only upon the question what did the parties do or omit, under thecircumstances? but upon thefur- ther question, what would a prudent, rea- sonable man have done under those cir- cumstances? and especially where thefacts and circumstances are of such a nature that honest, fair-minded, capable men might come to different conclusions upon the latter question, — the inference or con- clusion of negligence is one to be drawn by the trier, and not by the court as mat- ter of law. Such an inference or conclu- sion will, speaking generally, be treated by this court as one of fact, which will not be reviewed where the facts have been Iiroperly found, unless the court can see irom the record that in drawing such in- ference the trier Imposed some duty upon the parties which the law did not impose, or absolved thera from some duty which the law required of them under thecircum- stances, or in some other respect violated some rule or principle of law. Of course, we do not here mean to say that this court cannot review such a conclusion upon an appeal from a verdict against evidence, or that it may or may not do so upon a res- ervation or other proceeding of a like nature. We only mean to say that, in cases where it is the province of the trier to draw the inference of negligence, and no error of law in the sense explained is apparent on the record, error cannot be predicated of the mere act of the trier in drawing what is supposed to be an incor- rect or wrong- inference from facts proi)er- ly found. We think these principles can be applied to the case at bar, and that they are decisive of it. The principal facts are correctly found. They are somewhat numerous, and the question of the negligence of either party is complicated with questions as to the conduct of others, and with the special facts and circumstances of the case of which the conduct forms a part. Under the facts found, the only rule applicable was the general rule of conduct. The facts and circumstances are, we think, clearly of such a nature that a trier must, of necessity, measure the prudence of the parties' conduct by a standard of beliavior which he himself adopts for that case, based upon his opinion of the manner in which a man of ordinary prudence would act, under the same circumstances. The problem involved in such an inquiry can only be solved by the trier placing himseif in the position of the parties, and, in the light of his experience of human affairs, examining all the facts and circumstances as they appeared to them at the time. Furthermore, we think the facts found are of such a nature that men equally honest and impartial might, and probably would, from them draw different and opposite in- ferences as to whether due care was or JTEGLTGENCE. 1I» was not exercised by each party, under the circumstances. It is not apparent up- on the record that the court, in arriving at the conclusions, as to negligence, in the case at bar, imposed upon either party the performance of any duty which the law did not impose, nor that it did not require of them the performance of any duty which thelaw did require, nor that, in any B ALD W. BEIi. CAS.B. B. — 8 other respect, it violated any rule or prin- ciple of law. For these reasons we think, the case at bar comes within the class oE cases where the conclusions of the trier,, both as to negligence and contributory negligence, are regarded as conclusions of fact, which this court cannot review. There is no error apparent upon the rec- ord. The other judges concur. 114 NEGLIGENCE. Infant. Impntable negligence. NEWMAN V. PHIl^LIPSBURGH HORSE- CAR R. R. CO. (52 N. J. Law, 446, 19 Atl. 1102.) Supreme Court of New Jersey. June 5, 1890. Case certified from circuit court, Wairen county; before, Chief Justice Beasley. Tlie plaintiff was a child 2 years of age. She was in the custody of her sister, who was 22. The former, being left by herself for a few minutes, got upon the railroad track of the defendant, and was hurt by the car. The occurrence took place in a public street of the village of Phillipsburgh. The carelessness of the defendant was manifest, as at the time of the accident there was no one in charge of the horse drawing the car; the driver being in the car, collecting fares. The circuit judge submitted the three fol- lowing propositions to this court for its ad- visory opinion, viz.: "First, whether the neg- ligence of the persons in charge of the plain- tiff, an infant minor, should be imputed to the said plaintiff; second, whether the con- duct of the persons in charge of the plain- tiff at the time of the injury complained of was not so demonstrably negligent that the said circuit court should have nonsuited the plaintiff; or that the court should have di- rected the jury to find for the defendant; third, whether a ne\v trial ought not to be granted on the ground that the damages awarded are excessive." Argued November term, 1889. Shipman & Son, for plaintiff'. William H. Morrow, for defendant. BEASLEY, C. J., (after stating the facts as ■above.) There is but a single question pre- sented by this case, and that question plain- ly stands among the vexed questions of the law. The problem is whether an infant of tender years can be vicariously negligent, so as to deprive itself of a remedy that it would otherwise be entided to. In some of the American states this question has been an- swered by the courts in the affirmative, and in others in the negative. To the former of these classes belongs the decision in Hart- field V. Roper, reported in 21 Wend. 61o. This case appears to have been one of fli-st impression on this subject; and it is to he regarded not only as the precursor, but as the parent, of all the cases of the same strain that have since appeared. The inquiry with respect to the effect of the negligence of the custodian of the infant, too young to be in- telligent of situations and circumstances, was directly presented for decision in the primarj' ■case thus referred to; for the facts were these, viz.: The plaintiff, a child of about two years of age, was standing or sitting in the snow in a public road, and in that situa- tion was run over by a sleigh driven by the defendants. The opinion of the court was that, as the child was permitted by its cus- todian to wander into a position of such dan- ger, it was without remedy for the hurts thus received, unless they were voluntarily in- flicted, or were the product of gross careless- ness on the part of the defendants. It is obvi- ous that the judicial theory was that the in- fant was, through the medium of its custo- dian, the doer, in part, of its own misfortune, and that consequently, by force of the well- known rule under such conditions, he had no right to an action. This, of course, was visit- ing the child for the neglect of the custodian; and such infliction is justified in the case cit- ed In this wise: "The infant," says the court, "is not sui juris. He belongs to an- other, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose; in re- spect to third persons, his act must be deem- ed that of the infant; his neglect, the infant's neglect." It will be observed that the entire content of this quotation is the statement of a single fact, and a deduction from it; the premise being that the child must be in the care and charge of an adult, and the Inference being that for that reason the neglects of tJie adult are the neglects of the infant. But surely this is conspicuously a non sequitur. How does the custody of the infant justify or lead to the imputation of another's fault to him? The law, natural and civil, puts the infant under the care of the adult; but how can this right to care for and protect be con- strued into a right to waive or forfeit any of the legal rights of the infant? The capacity to make such waiver or forfeiture is not a necessary or even convenient incident of this office of the adult, but on the contrary is quite inconsistent with it; for the power to protect is the opposite of the power to harm, either by act or omission. In this case, in 21 Wend. 615, it is evident that the rule of law enunciat- ed by it is founded in the theory that the custodian of the infant is the agent of the infant. But this is a mere assumption, with- out legal basis ; for such custodian is the agent, not of the infant, but of the law. If such supposed agency existed, it would em- brace many interests of the infant, and could not be confined to the single instance where an injury is indicted by the co-operative tort of the guardian. And yet it seems certain that such custodian cannot suiTeuder or im- pair a single right of any kind that is vest- ed in the child, nor impose any legal burden upon it. If a mother, traveling with her child in her arms, should agree with a railway com- pany that, in case of an accident to such in- fant by reason of the joint negligence of her- self and the company, the latter should not be liable to a suit by the child, such an en- gagement would be plainly invalid on two grounds: First, the contract would be contra bonos mores; and, second, because the moth- er was not the agent of the child, authorized to enter into the agreement. Nevertheless the position has been deemed defensible, that the same evil consequences to the infant will follow from the negligence of the mother, in NEGLIGENCE. 115 the absence of such supposed contract, as would haye resulted if such contract should lave been made, and should have been held valid. In fact, this doctrine of the imputabillty of the misfeasance of the keeper of a child to the child itself is deemed to be a pure in- tei-polation into the law; for, until the case under criticism, it was absolutely unknown, nor is it sustained by legal analogies. In- fants have always been the particular objects •of the favor and protection of the law. In the language of an ancient authority, this doc- trine is thus expressed: "The common prin- ciple is that an infant, in all things which ;sound in his benefit, shall have favor and pre- ferment in law as well as another man, but shall not be prejudiced by anything to his disadvantage." 9 Vin. Abr. 374. And it would appear to be plain that nothing could be more to the prejudice of an infant than to convert, by construction of law, the con- nection between himself and his custodian Into an agency to which the harsh rule of respondeat superior should be applicable. The answerableness of the principal for the au- thorized acts of his agent is not so much the dictate of natural justice as of public policy, and has arisen, with some propriety, from the -circumstances that the creation of the agency is a voluntary act, and that it can be con- trolled and ended at the will of its creator. But in the relationship between the infant and its keeper all these decisive characteris- tics are wholly wanting. The law imposes the keeper upon the child, who of course can neither control nor remove him; and the in- justice, therefore, of making the latter respon- sible in any measure whatever for the torts of the former, would seem to be quite evi- dent. Such subjectivity would be hostile in -every respect to the natural rights of the in- fant, and consequently cannot with any show of reason be introduced into that provision which both necessity and law establish for Tiis protection. Nor can it be said that its existence is necessary to give just enforce- ment to the rights of others. When it hap- pens that both the infant and its custodian have been injured by the co-operative negli- gence of such custodian and a third party, It seems reasonable, at least in some degree, that the latter should be enabled to say to the custodian: "You and I, by our common carelessness, have done this wrong, and there- tore neither can look to the other for redress." TBut when such wrong-doer says to the in- fant: "Your guardian and I, by our joint misconduct, have brought this loss upon you; consequently, you have no right of action against me, but you must look for indem- nification to your guardian alone,"— a propo- sition is stated that appears to be without any basis either in good sense or law. The conversion of the infant, who is entirely free from fault, into a wrong-doer, by imputation, is a logical contrivance uncongenial with the spirit of jurisprudence. The sensible and le- gal doctrine is this: An infant of tender years cannot be charged with negligence, nor can he be so charged with the commission of such fault by substitution, for he is incapable of appointing an agent; the consequence be- ing that he can in no case be considered to be the blamable cause, either in whole or in part, of his own injury. There is no injustice nor hardship in requiring all wrong-doers to be answerable to a person who is incapable either of self-protection, or of being a par- ticipator in their misfeasance. Nor is it to be overlooked that the theory here repudiated, if it should be adopted, would go the length of making an infant in its nurse's arms an- swerable for aU the negligences of such nuree while thus employed in its service. Every person so damaged by the careless custodian would be entitled to his action against the in- fant. If the neglects of the guardian are to be regarded as the neglects of the infant, as was asserted in the New York decisions, it would, from logical necessity, follow that the infant must Indemnify those who should be harmed by such neglects. That such a doc- trine has never prevailed is conclusively shown by the fact that in the reports there is no indication that such a suit has ever been brought. It has already been observed that judicial opinions touching the subject just discussed are in a state of direct antagonism, and it would therefore serve no useful purpose to refer to any of them. It is sufficient to say that the leading text-writers have concluded that the weight of such authority is adverse to the doctrine that an infant can become in any wise a tort-feasor by imputation. 1 Shear. & R. Neg. § 75; Whart. Neg. § 311; 2 Wood, Ry. Law, 1284. In our opinion, the weight of reason is in the same scale. It remains to add that we do not think the damages so excessive as to place the verdict under judicial control. Let the circuit court be advised to render judgment on the finding of the jury. 116 NEGLIGENCE. Infajit. Invitation by servants to board moving car. Scope of servant's employ- ment. Averring matter of law. Proximate cause. SNYDER V. HANNIBAL & ST. JOSEPH R. R. CO. (60 Mo. 413, 9 Am. Railway Eep. 254.) Supreme Court of Missouri. May Term, 1S75. Appeal from circuit court, Bucbanan county. Hill & Carter, for appellant. M. Oliver, for respondent. HOUGH, J. This was an action by the plaintifE to recover damages for the loss of the services of her infant son by reason of injuries alleged to have been inflicted upon him, in consequence of the negligence and carelessness of defendant's servants, and also for expenses incurred by her for medical attendance, and in nursing him during his resulting sickness. The material portion of the petition is as follows: "The defendant was the owner of a certain railroad, running through the city of St Joseph and across the streets and al- leys thereof, and to the Missouri river bank, and the engines and cars therein, and was, and for a long time previous to the time of the injuries hereinafter complained of, had been, engaged in the business of running said engines and cars, over and upon said railroad, alternately, from defendant's depot in said city of St. Joseph to said river and back again, making numerous trips each day with its said engines and cars, over its said road between said points, through a densely inhabited part of said city, in the line of its duty and business, and defendant, by its employes, was, and for a long time previous had been, accustomed to and did, while so acting within the line of their duty and busi- ness for the defendant, willfully and unlaw- fully assume control over, and did careless- ly and negligently Induce, encourage and permit the son of plaintifE, one Henry Sny- der, an infant about 11 years of age, and divers other children and boys, residing with their parents, in the vicinity of, and adjacent to defendant's said road, and in the absence of, and against the wish, entreaties and pro- testations of their said parents, and while their said cars were in motion, running as aforesaid, over said road, to frequently jump upon and ride upon defendant's said cars, be- tween said points, and that said son of plain^ tifC, Henry Snyder, being so encouraged and permitted by said defendant's said employes, was, in obedience to his childish instincts In the premises, attempting to so jump upon said cars, to-wit, on or about the 25th day of October, 1871, and while said cars were be- ing so run by said employes in defendant's said business, through said city between said points, when said Henry Snyder was then and there thrown down, and under the wheels of said ears, and in consequence of defendant's said carelessness and negligence, his leg was then and there run over by said cars, and was thereby so crushed and man- gled, that same had to be amputated; where- by, etc.," and plaintiff claimed damages for the loss of services which would thereby be incurred by her during the whole period of her son's minority. To this petition, the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer and rendered final judgment thereon, for the defendant, and plaintiff has appealed to this court. The rule is firmly established that the mas- ter is civilly liable for the tortious acts of his servant, whether of omission or commis- sion, and whether negligent, fraudulent or deceitful when done in the course of his employment, even though the master did not authorize, or know of such acts, or may have disapproved or forbidden them. Garretzen V. Duenckel, 50 Mo. 107. The chief difficulty which has arisen in the application of this rule as appears from, the adjudicated cases, has been in ascertain- ing whether the act complained of was com- mitted in the course of the servant's em- ployment. Conceding for the present, that the peti- tion in this case charges that the Injury com- plained of was received by the plaintiff's son. while attempting to get on the cars, in con- sequence of an invitation extended to him at the time by the servants of the defendant,, in charge of said cars, can the defendant on such a state of facts, be held liable in this action? Can such injury be said to have happened, by reason of any act of defend- ant's servants, within the scope of tlieir em- ployment? What was their employment? It is char- ged to have been the running of the engines and cars of the defendant between two points within the limits of the city of St.. Joseph. It does not appear whether such cars were at the time being used in the transportation of passengers, or of freight only; or whether the defendant'^ servant.^ were merely engaged in switching cars to be thereafter used for passengers or freight. In the case of Wilton v. Middlesex R. R.. Co., lO-" Mass. 108, it appeared that the plain- tiff, a girl of nine years of age was walking with several other girls upon the Charles- town bridge about 7 o'clock in the evening, when one of the defendant's horse cars came- along very slowly, and the driver beckoned, to the girls to get on. They thereupon got on the front platform, and the driver imme-- diately stmck his horses, when, by reason of their suddenly starting, plaintiff lost her balance and fell so that one of the wheels, passed over her arm. It was admitted that the plaintiff was not a passenger for hire, and that the driver had no authority to take the girls upon the car and carry them, un- less such authority was Implied from the fact of his employment as driver. The- court says: "The driver of a horse ear is an. NEGLIGENCE. 117 agent of the corporation having charge in part of the car. If, in violation of his in- structions, he permits persons to ride with- out pay, he is guilty of a breach of his duty as a servant. Such act is not one outside of his duties hut is an act within the gen- ■eral scope of his agency for which he is re- sponsible to his master. In the case at bar, the invitation to the plaintiff to ride was an act within the general scope of the driver's employment, and if she accepted it innocent- ly, she was not a trespasser. It is imma- terial that the driver was acting contrary to his instructions." Wharton in his work on Negligence says, that the principle announced in the foregoing case, cannot be extended so as to imply au- thority on the part of the engineer of a loco- motive to invite a child on the machinery, and cites in support of his text, the case of Flower v. Railroad Co., 69 Pa. St. 210, In that case the fireman on an engine, which with the tender and one freight car, had been detached from a train of cars, and was stopped at a water station for water, re- quested a small boy standing near to put in the hose and turn on the water, and while he was climbing on the tender to put in the hose, the freight cars belonging to the train from which the engine was detached, came down, without a brakeman and struck the ear behind the tender, driving the engine and tender forward 10 feet. The boy fell from the tender and was crushed to death. There was testimony that engineers were not permitted to receive any one on the en- gine but the conductor and superintendent. The court held that the boy was not a pas- senger, or one to whom the company owed a special duty, and says, "It is evident there- fore, that the case turns wholly on the ef- fect of the request of the fireman, who was temporary engineer, to put in the hose and turn on the water. Did that request involve the company in the consequences ? This is a very hard case. A willing bright boy, not arrived at years of discretion, has lost his life in simply trying to oblige the fireman. But we must not suffer our sympathies to do injustice to others, by overriding those fixed principles which underlie the rights of all men and are essential to justice. It is nat- ural justice that one man should not be held liable for the act of another, without his participation, his privity, or his authority. It is clear that the fireman, through his in- dolence or haste, was the cause of the boy's loss of life. Unless his act can be legally at- tributable to the company, it is equally clear the company was not the cause of the in- jury. The maxim, 'Qui facit per alium facit per se,' can only apply where there is an au- thority, either general or special. It is not pretended there was a special authority. Was there a general authority which would comprehend the fireman's request to the boy to fill the engine tank with water? This seems to be equally plain without resorting to the evidence given that engineers are not permitted to receive anyone on the engine but the conductor and foreman or superin- tendent; that it is the duty of the fireman to supply the engine with water; that he has no power to invite others to do it, and can leave his post only on a necessity. * ■" * It is not like the case of one injured while on board a train, by the sufferance of the conductor, whose general authority ex- tends to receiving and discharging persons to and from the train." In the case of Lynch v. Nurdin, 1 Adol. & E. (N. S.) 29, chiefly relied on by the appel- lant, the servant of the defendant was palpa- bly negligent, in leaving the horse and cart, in his charge unattended in the street, where- by an infant who "merely indulged the natural instinct of a child, in amusing himself with the empty cart and the deserted horse," and to whom no concurrent negligence could be imputed, was injured. There the seiTant was clearly guilty of a negligent act in the course of his employment. The case of Eaton v. Kailroad Co., 13 Am. Law Reg. 665, decided by the New York commission of appeals, is an elaborate au- thority to the point that conductors of freight trains cannot create any liability on the part of the company to persons taken by them on such trains, unless the principal in some way assents to it. In that case however, the evidence not only failed to show that the company assented to the act of the freight conductor, but it was distinct- ly proved that it forbade the act. See, also. Judge Redfield's note to that case. It is patent from the foregoing cases that the acts of the defendant's servant as al- leged in the petition in inducing, encoura- ging and permitting the plaintiff's son and others to ride upon the cars operated by them, cannot be viewed as having been done by them in the course of their employment. It does not appear that they were engaged in carrying passengers or had any authority to permit persons to ride on said cars, with or without compensation, or that the invita- tion or permission alleged, were in further- ance of the master's interests or directly or indirectly connected with the service which they had engaged to render to it. The mere fact that a tortious act is committed by a servant while he is actually engaged in the performance of the service he has been em- ployed to render cannot make the master liable. Something more is required. It must not only be done while so employed, but it must pertain to the particular duties of that employment. The general state- ment that the acts of defendant's servants were within the range of their employment is a mere conclusion of law which cannot help the averment of facts and can avail nothing. Gillet v. Railroad Co., 55 Mo. 315. The facts being conceded, whether a given act is within the scope of a servant's em- ployment is a question of law for the comt. 118 NEGLIGENX'E. A careful examination of the petition in this case, however, discloses the fact that no invitation to get upon the cars of defendant, is alleged to have been given at the time of the injury. The petition shows that the plaintiff's son attempted to get on the train of his own motion, and in pursuance of his childish Instincts and in consequence of the former permission and encouragement ex- tended to him by defendant's servants, and was thereby injured. It contains no allega- tion of negligence on the part of defendant's servants at the time the chUd attempted to get upon the train. Such an allegation would have brought the case within the rule laid down in Lynch v. Nurdin, if the negli- gent acts alleged pertained to the particular duties of the servant's employment. From all that appears the defendant's serv- ants were, at the time of the injury, in the exercise of usual and ordinary care, and were not cognizant of the child's attempt to- get upon the cars. The previous encourage- ment alleged to have been given by defend- ant's servants to plaintiffs child and other children, to get upon their cars while the same were in motion, even if it could be held to have been within the range of their em- ployment, would not be the proximate cause of the injury complained of here. Nothing need be said as to the character or extent of the recovery sought here. The petition fails to state a cause of action against the defendant, and the judgment of the circuit court will be affirmed. The other judges concur. NEGLIGENCE. 119 Grade-crossing accident. Signals. Conflict of testimony. Positive e-ridence ont- weigbs negative. Excessive damages. Remittitur, Nonsnit. Verdict against evidence. BOHAN T. MILWAUKEE, LAKE SHORE & W. RY. CO. (61 Wis. 391, 21 N. W. 241, 19 Am. & Eng. R. R. Cases, 276.J Supreme Court of Wisconsin. Nov. 6, 1884. Appeal from circuit court, Ozaukee county. Alfred L. Gary, for appellant G. W. Fos- ter, for respondent. LYON, J. This case was here on a former appeal, and is reported in 58 Wis. 30, 15 N. W. 801. The nature of the action and the facts of the case are there sufficiently stated, and will not be repeated here. The case has been again tried, and the trial resulted in a judgment for the plaintiff, from which the defendant has appealed. The testimony on the part- of the plaintiff on the last trial is substantially the same as that introduced by him on the first. By reference to the report of the case in 58 Wis. 30, 15 N. W. 801, It will be seen that the defendant introduced no testimony on the first trial. The grounds upon which the judgment went on the first appeal will appear by the following extract from the opinion: "It is not unlawful for railway companies to propel cars by pushing them in advance of the locomotive by which they are propelled, when the exigencies of their business require it to be done. If they do so under circumstances which increase the risks of injury to persons or property, the law places them under obligation to give timely and suitable notice or warning, in some manner, of what they are doing. In this case, it does not appear that the gravel cars could be distinguished or their presence discovered by persons at the street-crossing, when the plaintiff attempted to cross the track, unless by aid of the headlight If, therefore, the head-light did not disclose to persons at that point, using proper care and watchfulness, that the locomotive was pre- ceded by the gravel cars, the defendant com- pany was negligent in not furnishing some other and more effectual signal or notice of the fact. Hence the case seems to turn upon the question of the sufficiency of the head- light to enable the plaintiff to discover the gravel cai-s by exercising due care and scru- tiny. If it was sufficient, the plaintiff was negligent, and the defendant was not. If it was not sufficient, the result is reversed— the defendant was negligent, and the plaintiff was not." It was held that, under the cir- cumstances of the case, the question whether or not the head-light was sufficient to enable the plaintiff, exercising proper care, to see the gravel cars, was for the jury. There was no proof, on the first trial, that a lighted lantern was held on the forward end of the first gravel car from the depot, or that the train bell was rung immediately before the plaintiff was injured. On the last trial, four vritnesses, produced on behalf of the defend- ant, each testified that a brakeman stood upon the forward end of that car with a lighted lantern in his hand, plainly visible, from the time they left the gravel pit (nearly one-half mile south of the depot) until the train reached the depot. These witnesses were the conductor, engineer, and fireman on the train which injured the plaintiff, and the brake- man who held the lantern. There is a switch 230 feet south of the depot, and three of these witnesses testified that the engine bell was rung constantly while the tram was passing from a point several rods south of this switch to the depot The plaintiff and several witnesses introduced by him each testified that he saw the head-light of the approaching train when a short distance south of the depot platform, but saw no per- son on the forward end of the first gravel car, nor any light at that place, and that he does not remember to have heard the engine bell ring before the plaintiff was injured. This is all the testimony which in any man- ner tends to throw doubt upon the statements of the defendant's witnesses as to the ring- ing of the bell, or the presence of a lighted lantern on the gravel car. It satisfactorily appears from all the evi- dence that at the time the plaintiff was in- jured, and immediately before, the train was running at a reasonable and lawful rate of speed, and that it was equipped with a prop- er head-light It was held on the former ap- peal, and is res adjudicata on this appeal, that it was not unlawful for the defendant to propel its gravel cars in front of the loco- motive, if that was required by the exigen- cies of its business. That it was so required in this case is abundantly and conclusively proved. The defendant was only required to give timely and suitable notice or warning that it was so propelling the gravel cars. We do not perceive what notice or warning, besides that furnished by the head-light, the defendant could reasonably be required to give, other than to ring the engine bell and to keep a man with a lighted lantern station- ed at the head of the train. The question to be here determined is, does the testimony conclusively establish that such warnings were given in the present case? The testimony of the plaintiff's witnesses, that they did not hear the bell ring, or did not see the lighted lantern at the head of the gravel cars, is purely negative, and its negative character is intensified by the fact, which is made perfectly obvious by their tes- timony, that they did not look attentively, but only casually, at the approaching train, and the attention of none of them was di- rected to the presence or absence of such warnings. Upon this record the credibility of the defendant's witnesses, who testified positively to the ringing of the bell and the presence of the brakeman on the gravel car 120 NEGLIGENCE. with a lighted lantern, stands unimpeached. The jury were not at liberty to disregard their testimony, but it was their duty to rec- oncile the testimony of all the witnesses, if that could reasonably be done. There is no difficulty in doing so in this case. The testi- mony of the defendant's witnesses is positive that the bell was seasonably rung, and that the brakeman stood on the forward end of the leading gravel car holding a lighted lantern; and that of the plaintiff's witnesses is that, although they had the opportunity to hear and see such warnings, they failed to do so. The testimony does not tend to show a single fact or circumstance which gives a positive character to the testimony of the plaintiff and his witnesses. Such be- ing the nature of the testimony, the fact that the warnings were given was established, if not by the undisputed evidence, certainly by an overwhelming preponderance of testi- mony, and the jury were not Justified in find- ing that they were not given. Indeed, the negative testimony of plaintiff and his wit- nesses, while it "has some bearing upon the question of the warnings, amounts to little more than, so to speak, a mere scintilla of evidence, and did not justify the jury in their disregard of all the positive and otherwise unimpeached testimony that the warnings were given. See Muster v. Railway Co., 21 N. W. 223. This court always has been and is very careful not to interfere with findings of facts by juries unless absolutely compelled by the law to do so. But we find one fact in this record which causes us to feel less tender of this verdict. The jury assessed the plain- tiff's damages at $2,500,— a sum which, in view of the nature and extent of the plain- tiff's injuries, was greatly in excess of what he ought to have recovered, if entitled to re- cover at all. The learned circuit judge was of that opinion, and only denied a motion for a new trial on condition tliat the plaintiff remit one-half of the damages so assessed. The findings of a jury who could render such a verdict are not entitled to any special con- sideration at the hands of the court. Indeed, the damages awarded were so excessive, probably, it ought to be held that the assess- ment shows such bias, prejudice, or passion on the part of the jury that the judgment ought to be reversed for that reason; be- cause when the plalntifiC was injured the train of the defendant was moving at a law- ful rate of speed, and was lawfully propelling the gravel cars in front of the locomotive; because the head-light of the train was in proper condition and lighted; and because sufficient and timely warning of the approach of the train was given by the ringing of the bell, and by the presence of the brakeman with a lighted lantern on the extreme front of the train, it must be held that the defend- ant was not guilty of any negligence which caused the injuries complained of. The jury found specially that as the train approached, none of the defendant's men stood" on the forward end of the forward gravel car, and based their finding that the defendant was guilty of negligence upon the fact alone that the front gravel car was not lighted. It fol- lows from what has already been said that the evidence does not support these findings. At the close of the testimony the defendant moved for a nonsuit. The motion was de- nied. It should have been gi-anted. Not having been granted, the circuit court should have granted the motion of the defendant for a new trial. The foregoing views are decisive of the case; hence it becomes unnecessary to con- sider the question of the alleged contributory negligence of the plaintiff. Judgment re- versed, and cause remanded for a new trial. Cf. Johnson v. Scribner, 6 Conn. 185; Rail- road Co. T. McDonald (1894) 152 U. S. 262, 14 Sup. Ct 619; Southern Pac. Co. v. Pool (1896) 160 U. S. 438, 16 Sup. Ct. 338. INJURIES TO TRAVELERS ON HIGHWAY. 121 Office of bill of exceptions. Exceptions to charge to the jury. Generality in as- signment of error. Ordinary care. Negligence, when a question of law. Run- ning train at undue rate of speed. City ordinance. Duty to provide flagman or gates, w^hen a question for the jury. Contributory negligence. Duty to looh and listen. Request to charge on detached portions of evidence. GRAND TRUNK RT. CO. OF CANADA v. IVES. (144 U. S. 408, 12 Sup. Ct. 679.) Supreme Coui-t of the United States. April 4. 1892. In error to the circuit court of the Uni ted Statesfor the eastern district of Michigan. Affirmed. E. W. Meddavffh and Otto Kircbner, for plaintiff in error. Don M. Dickinson and E. G. Stevenson, for defendant in error. Mr. Justice LA MAR delivered the opinion of the court. This was an action b.y Albert Ives, Jr., Bs administrator of the estate of Elijali Smith, deceased, against the Grand Trunk Railway Company of Canada, a Canadian corporation operating a line of railroad in Michigan, to recover damages for the al- leged wrongful and negligent Isilling of plaintiff's intestate, without fault on his own part, by the railway company, at a fitreetcrossinginthecity of Detroit. It was commenced in a state court, and was after- wards removed into the federal court on the ground of diverse citizenship. The action was brought under sections 3.391 and 3392 of Howell's Annotated Statutes ol Michigan, and, as stated in the declara- tion, was for the benefit of three daugh- ters and one son of the deceased, whose names were given. There was a trial before the coart and a jury, resulting in a verdict and judgment in favor of the plaintiff for $5,000, with interest from the date of the verdict to the time the judgment was entered. The plaintiff offered to remit the interest, but the court refused to allow it to be done. The defendant then sued out this writ of «rror. On the trial the plaintiff, to sustain the issues on his part, offered evidence tending to prove the following facts: Elijah Smith, plaintiff's intestate, at the time of his death, iu May, 1884, was about 75 jfears of age, and had been residing on a farm, a few miles out of the city of Detroit, for several years, being engaged in grape •culture. It was his custom to nialie one or more trips to the cit,y every day during that period. In going to tlie city he trav- eled eastwardl.v on a much traveled road, known as the "Holden Road," which, ■continued into the city, becomes an impor- tant and well-known street running east and west. Within the limits of the city the street was crossed obliquely, at a grade, by the defendant's road and two other parallel roads coming up from the «outh-west, which roads, in the language of the defendant's engineer, curve "away from a person coming down the Holden road." At tlie crossing the Holden road is 65)^ feet wide. The defendant's right of way is 40 feet wide, and the right of way of all the parallel railways at that place is 160 feet wide. For a considerable distance— at least 300 feet— along the right side of the road go- ing into the city there were obstructions to a view of the railroad, consisting of a house known as the "McLaughlin House, " a barn and its attendant outbuildings, an orchard in full bloom, and, about 76 feet from the defendant's track, another house, known as the "Lawrence House." Then there were some shrub bushes, or, as described by one witness, some stunted locust trees and a willow, a short distance from the line of the right of way. So that it seems, from all the evidence introduced on this point, that it was not until a trav- eler was within 15 or 20 feet of the track, and then going up the grade, that he could get an unobstructed view of the track to the right. One witness testified that, if he was in a buggy, his horse would be within S feet of the track before he could get a good view of it in both directions. On the morning of the fatal accident, Mr. Smith and his wife weredriving down the Holden road into Detroit, in a buggy with the top raised, and with the side curtains either raised or removed. Oppo- site the Lawrence house they stopped sev- eral minutes, presumably to listen for any trains that might be passing, and while there a train on one of the other roads passed by, going out of the city. Soon after it had crossed the road, and while the noise caused by it was still quite dis- tinct, they drove on towards their desti- nation. Just as the.v had reached the de- fendant's track, and while apparentl.v watching the train that had passed, they were struck by one of the defendant's trains coming from the right at the rate of at least 20 — some of the witnesses say 40 — miles an hour, and were thrown into the air, carried some distance, and in- stantly killed. This train was a transfer train between two junctions, and was not running on any schedule time. The plain- tiff 's witnesses agree, substantially, in say- ing that the whistle was not blown for this crossing, nor was the bell rung, and that no signal whatever of the approach of the train was given until it was about to strike the buggy in which Mr. Smith and his wife were riding. The train ran on some 400 feet or more after striking Mr. Smith before it could be stopped. It further appeared that an ordinance of the city of Detroit required railroad trains within its limits to run at a rate not ex- ceeding six miles an hour; and it likewise appeared! that there was no flagman or any one stationed at this crossing to warn travelers of approaching trains. Most of the witnesses for the defense, consisting, tor the main part, of its em- ployes aboard the train at the time of the accident, testified, substantially, that the ordinary signals of blowing the whistle and ringing the bell were given before reaching the crossing, and that, in their opinion, the train was not moving faster than six miles an hour. It must be stat- ed, however, that some of the defendant's witnesses, the brakemau, among others, would not say that the ordinary signals were given, nor would they testify that the train was not moving faster than at 122 INJURIES TO TRAVELERS ON HIGHWAY. the rate prescribeci by tlie city ordinance; and one ot its witnesses, in particular, testified that the train was nioving"about 20 miles an hour, — perhaps a little faster. " A witness called by the plaintiff in re- buttal, an engineer of 45 years' standing, who was examined as an expert, testified that if the train ran on, after striking Mr. Smith, the distance it was said to have gone before it could be stopped, it must have been going at the rate of 25 or 30 miles an hour;- and that if It had been go- ing but 6 miles an hour, as claimed by the defendant, it could have been stopped in the length of the engine, and even without brakes would not have run more than 35 feet, it reversed. The foregoing embraces the substance of all the evidence set forth in the bill of exceptions on the question of how the fatal accident occurred, and with respect to the alleged negligence of the defendant in the premises, and also the alleged con- tributory negligence of Mr. Smith. At the close of the testimony the defend- ant submitted in writing a number of re- quests for instructions tothe jury, which, if the.y had been given, would have virtual- ly taken the case from the jury, and would have authorized them to bringina verdict in its favor. The court refused to give any of them in the language requested, but gave some of them in a modified form, and embraced others in the general charge. The refusal to give the instructions re- quested was excepted to, and exceptions were also noted to various portions of the charge as given. As those exceptions are substantially embodied in the assignment of errors, they will not be further referred to here, but such of them as we deem ma- terial will be considered in a subsequent part of this opinion. The first point raised by the defendant, and urgently insisted upon as being em- braced in the assignment of errors, is that there is no evidence in this record that Mr. Smith left any one dependent upon him for support, and that, therefore, no right of action could be in the plaintiff, as his administrator, under the Michigan statutes, against the defendant, for caus- ing his death. Sections 3391 and 3392 of Howell's An- notated Statutes of Michisan, under which this action was brought, provide as follows: "Sec. 3391. Whenever the death of a per- son shall be caused by wrongful act, neg- lect, or default of any railroad company, or its agents, and the act, neglect, or de- fault is such as would fif death had not ensued) entitle the party injured to main- tain an action and recover damages in re- spect thereof, then, and in every such case, the railroad corporation which would have been liable if death had not ensued shall be liable to au action on the case for da mages, notwithstanding the death of the person so injured, and although the death shall have been caused under such circum- stauces as amount in law to felony. "Sec. 3392. Every such action shall be brought b.y and in the names of the per- sonal representatives of such deceased per- son, and the amount recovered in any such action shall be distributed to the persons, and in the proportion, provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such amount of damages as they shall deem fair and just to the persons who may be entitled to such damages when recovered: provided, nothing here- in contained shall affect any suit or pro- ceedings heretofore commenced and now pending in any of the courts of this state. " According to the decisions of the su- preme court of Michigan bearing upon the construction ot these sections, a right of action will not arise for the negligient killing of a person by a railroad company, unless the deceased left some one depend- ent upon him tor support, or some one- who had a reasonable expectation of re- ceiving some benefit from him during his life-time. Railway Co. v. Bayfield, 37 Mich. 205; Van Brunt v. Railroad Oo., 7S Mich. .530, 44 N. W. Rep. 321 ; Cooper v. Railway Co., 66 Mich. 261, 33 N. W. Rep. 306. But it seems to us that no question con- cerning this phase of the case can arise here upon this record. The declaration averred that the action was brought for the benefit ot three daughters and one son of the deceased, whose names were given ; and the defendant's plea was merely in the nature of a plea of the general issue, stat- ing simply that the defendant "demands a trial of the matters set forth in the plaintiff's declaration." It is true that, so far as appears from this record, the only evidence with respect to the benefi- ciaries of the suit named in the declara- tion was brought out apparently inci- dentally, one of plaintiff's witnesses, Mrs. Briscoe, stating that she was the daugh- ter of the deceased, and another witness stating that sometimes Mr. Smith's son went to town to attend to the sale of his farm products. We should bear in mind, however, that it is not for this court to say that the en- tire evidence in the case is set forth in tho bill of exceptions, for that would be to presume a direct violatioh of a settled rule ot practice ns regards bills of ex- ceptions, viz., that a bill of exceptions should contain only so much ot the evidence as may be necessary to explain the bearing ot the rulings of the court upon matters ot law in reference to the questions in dispute between the parties to the case, and which inay relate to ex- ceptions noted at the trial. A bill of ex- ceptions should not include, nor as a rulft does it include, all the evidence given on the trial upon questions about which there is no controversy, but which it is necessary to introduce as proof of the plaintiff's right to bring the action, or of other matters of like nature. It such evi- dence be admitted without objection, and no point be made at the trial with respect to the matter it was intended to prove, we know of no rule of law which would require that even the substance ot it should be embodied in a bill of exceptions subsequently taken. On the contrary, to incumber the record with matter not ma- terial to any issue involved has been re- peatedly condemned by this court as use- less and improper. Pennock v. Dialogue, 2 Pet. 1, 15; Johnston v. Jones, 1 Black, INJURIES TO TRAVELERS ON HIOHWAT. 12S 209, 219, 220; Zeller's Lessee v. Eekert, 4 How. 289, 297. But, as the record fails to show that any exception was taken at the trial based upon the lack of any evidence in this par- ticular, we repeat, it is not properly pre- sented to this court for consideration. If the defendant deemed that the court be- low erroneously made no reference in its charge to the jury to the lack of any evi- dence in the record respecting the existence of any beneficiaries of the suit, it should have called that matter to the attention of the court at that time, and insisted up- on a rulins as to that point. Failing to do that, and failing, also, to save any ex- ception on that point, it must be held to have waived any right it may have had in that particular. The only exception taken on the trial and embodied in ihe assign- ment of errors that can, by any latitude of construction, be held to refer to this point, is the eighth request for instruc- tions, which was refused, and which re- fusal is made the basis of the sixth assign- ment of errors. That request is as fol- lows: "The court ia requested to instruct the jury that under theevidencein this case the plaintiff is not entitled to recover, and their verdict must be for defendant. " But the context and the reason given by the court for its refusal to give the instruc- tion clearly show that that request was not aimed at this point, but related solely to the qut?stion of negligence on the part of the defendant company, and the alleged contributory negligence of the party killed. That this request for instructions meant what the court understood it to mean, and had no reference whatever to theques- tion of evidence re8i)ecting the existence of the beneticiaries named lu the declaration, is further shown by the fact that the court in its general charge assumed that such evidence had been introduced, and also by the fact that theninth request of the plain- tiff in error for instructions to the jury likewise proceeded on that assumption. That request is as follows: "The damages in cases of this kind are entirely pecuniary in their nature, and the jury must not award damages beyond the amount the evidence shows the children would proba- bly have realized from deceased had he continned to live. Nothing can be given for injured feelings or loss of society. " Furthermore, this assignment of error is too broad and general, under the twenty-first rule of this court, (3 Sup. Ct. Rep. xii.,) to bring up such a spe- cific objection as it seeks to do. This court should not be put to the labor and trouble of examining the whole of the evidence to see whether there was enough for the verdict below to have rest- ed upon. But any objection made to the non-existence of evidence to support the verdict^and judgment below should, in the language of the rule, "set out separately and particularly each error asserted and intended ■ to be urged." Van Stone v. Stillwell & Bierce Manuf'g Co., 142 D. S. 128, 12 Sup. Ct. Rep. 181. In our opinion, therefore, this point raised by the plain- tiff in error is without merit. As to wheth- er, as a matter of fact, there was evidence respecting the existence of any beneficiaries to this action, we do not, of course, ex- I press any opinion. In the view above taken of the matter it is not necessary to decide that point. The legal presumption is that there was, and we shall proceed to consider the other assignments of error upon that presumption. These assignments of error, so far as we can considi r them, properly relate to but two questions: (1) Whether there was negligence outhepart of the railroad com- pany in the running of the train at the time of the accident; and (2) whether, even if the company was negligent in this particular, the deceased was guilty of such contributory negligence as will defeat this action. With respect to the first question, as here presented, the court charged the jury, sub- stantially, that negligence on the part of either the railroad company or the de- ceased might be defined to be "the failure to do what reasonable and prudent per- sons would ordinarily have done, under the circumstances of the situation, or do- ing what reasonable and prudent persons, under the existing circumstances, wonld not have done;" that the law did not re- quire the railroad company to adopt and have in use, at public crossings, the most highly developed and beat methods of sav- ing the life of travelers on the highway, but only such as reasonable care and pru- dence would dictate, under thecircumstan- ces of the particular case; and that the question of negligence, or want of .ordi- nary care and prudence, was one for the jury to decide. In this connection the court gave to the jury the following in- struction, which, it is claimed, was erro- neous: "You fix the standard for reasonable, prudent, and cautious men under the cir- cumstances of the case as you find then), according to .your judgment and experi- ence of what that class of men do under these circumstances, and then test the con- duct involved and try it by that standard ; and neither the judge who tries the case nor any other person can supply you witli the criterion of judgment by any opiniou he may have on that subject." But it seems to us that the instruction was correct, as an abstract principle of law, and was also applicable to the facts brought out at the trial of the case. There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be con- sidered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms "ordi- nary care," "reasonable prudence," and such like terms, as applied to the conduct and affairs of men, have a relative signifi- cance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case m:iy, under different surroundings and circumstances, be gross negligence. The polic.v of the law has relegated the de- termination of such questions to the jury, under proper instructions from the court. It is their province to note the special cir- cumstances and surroundings of each par- ticular case, and then say whether the con- duct of the parties in that case was such as would be expected of reasonable, prudent men, under asimilarstate of affairs. When a given state of facts is such that reasona- 124 INJURIES TO TRAYELEKS ON HIGHWAY. ble men niaj' fairly differ upon the ques- tion as to whetlier tliere was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court. Railroad Co. V. Pollard, 22 Wall. 341; Railroad v. Con- verse, 139 U. S. 469,11 Sup. Ct. Rep. r)69; Thompson v. Railway Co., 57 Mich. iJOO, 23 N. W. Rep. 820; Railway Co. v. Miller, 25 Mich. 274; Railway Co. v. Van Stein- burg, 17 Mich. 99, 122; Gay nor v. Old Golony & Newport Ry., 100 Mass. 208, 212; Marietta, etc., Railroad Co. v. Ricksley, 24 Ohio St. 654; Railroad Co. v. Ogier. .35 Pa. St. 60; Robinson v. Cone, 22 Vt. 213; Ja- mison V. Railroad Co., 55 Cal. 593; Red!. R. R. (5tli Ed.) § 133, par. 2; 16 Amer. & Eng. Enc. Law, tit. "Negligence," 402, and au- Ihorities cited in note2. We do notthink, therefore, that this instruction was erro- neous in any particular. It is further urged that the court erred in giving to the jury the followinginstruc- tiou : "If you tind from the evidence in this case that the railroad train which killed Elijah Smith was moving at a rate of speed forbidden by the city ordinances, * * * the law authorizes you to infer negligence on the part of the railroad ■company as oneof the facts established by the proof." It is said that no evidence was Intro- duced with respect to an ordinance of the city regulatlngths speed of railway trains. ■Counsel, in this matter, labor under a misapprehension. The bill of exceptions states that " the ordinance of the city of Detroit prohibitins the runnina: of rail- road trains within the limits of the city at a greater rate of speed than six miles per hour" was admitted in evidence, over the defendant's objections; and as there was a great deal of evidence introduced on behalf of the plaintiff that the train which killed Mr. Smith was running at a much more rapid rate than tha ordinance permitted, the instruction quoted was applicable, and, under the authorities, was as favorable to the defendant as it had the right to demand. Indeed, It has been held in many cases that the run- jiing of railroad trains within the limits of a city at a rate of speed greater than is allowed by an ordinance of such city is negligence per se. Sehlereth v. Railway Co., 96 Mo. 509, 10 S. W. Rep. 66; Railway €o. V. White, 84 Va. 498, 5 S. E. Rep. .573. 'But perhaps the better and more generally accepted rule is that such an act on the part of the railroad company is al- ways to be considered b3' the jury as at least a circumstance from which negli- gence may be inferred in determining whether the company was or was not .guilty of negligence. Railway Co. v. Rass- mussen,25Neb.810, 41 N. W. Rep. 778; Blan- chard v. Railway Co., 126 111. 416, 18 N. E. Hep. 7i>9; Meloy v. Railway Co., 77 Iowa, 743,42 N. W. Rep. 563; Railway Co. v. Dannagan, 82 Ga. 579, 9 S. E. Rep. 471 ; Peyton v. Railway Co., 41 La. Ann. 861, 6 South. Rep. 690. -it any rate, the charge of the court in this particular was not unfavorable to the defendant, under the law. Haas v. Railroad Co.. 41 Wis. 44; Railroad Co. v. McGowan, 62 Miss. 0S2; Railroad Co. v. Stebbing. 62 Md. .504; Mc- Grath v. Railroad Co., 63 N. Y. 522; Rail- road Co. V. Terry, 42 Tex. 4.51 ; Bowman v. Railroad Co., 85 Mo. 533; Crowley v. Rail- road Co., 65 Iowa, 658, 20 N. W. Rep. 467. and 22 N. W. Rep. 918; Keim v. Transit Co., 90 Mo. 814, 2 S. W. Rep. 427; Ellis v. Railroad Co., 138 Pa. St. 506, 21 Atl. Rep. 140; 4 Amer. & Eng. Enc. Law, tit. "Cross- ings, " 934, and authorities cited in notes H and 10. One of the chief assignments of error, and perhaps the one most strongly relied on to obtain a reversal of the judgment below, is that the court erred in giving the following instruction : "So if you find that because of the spe- cial circumstances existing in this case, such as that this was a crossing in the city much used and necessarily frequently pre- senting a point of danger, where several tracks run side by side, and there is conse- quent noise and confusion and increased danger; that owing to the near situation of houses, barns, fences, trees, bushes, or other natural obstructions which afforded less than ordinary opportunity for obser vation of an approaching train, and other like circumstances of a special nature, it was reasonable thattherailroadcompany should provide special safeguards to per- sons using the crossing in a prudent and cautious manner, — the law authorizes you to infer negligence on its part for any failure to adopt such safeguards as would have given warning, although you have a stat- ute in Michigan which undertakes by its provisions to secure such safeguards in the way the statute pointsout. Thedutymay exist outside the statute to provide flag- men or gates or other adequate warnings or appliances, if the situation of the cros.s- ing reasonably requires that, — and of this you are to judge,— and it depends upon the general rule that the company must use its privilege of crossing the streets on its surface grade with due and reasonable care for the rights of other persons using the highway with proper care and caution on their part. "So if you find that the train hands kept no proper lookout, and managed the train without due caution and reasonable care, you will be authorized to infer negligence on the part of the company as one of the facts established in the case. " That this Instriiction Is in harmony with the general rule of law obtaining in most of the states and at common law we think there can be no doubt. The general rule is well stated in Railway Co. v. Kuhn, 86 Ky. 578, 5S9, 6 S. W. Rep. 441, as follows: "The doctrine with reference to injuries to those crossing the track of a railway where the right to cross exists is that the company must use such reason- able care and precaution as ordinSiry pru- dence would indicate. This vigilance and care must be greater at crossings in a populous town or city than at ordinary cros.sings in the country ; so what is rea- sonable care and prudence must depend on the facts of each case. In a crossing within a city, or where the travel Is great, reasonable care would require a flagman constantly at the crossing, or gates or INJURIES TO TRAVELERS ON HIGHWAY. 12!> bars, so as to prevent injury; but such care would not be required at a crossing in the country, where but few pej-sons passed each day. The usual signal, such as rinsing the bell and blowing the whistle, would be sufficient." Siting Thomp. Neg. 417; Railroad Co. v. Goetz, 79 Ky. 442. And it was accordingly held in that case that a railroad company which had failed to provide a flagman or gates during the night-time, when many trains were passing, at a crossing in a thickly populated portion of the city of Louisville, buildings being situated near the track at that point, was guilty of "negligence of the most flagrant char- acter." See, also, to the same effect. Rail- road Co.v. Dunn, 78 111. 197; Bentley v. Rail- way Co., 80 Ala. 484, 6 South. Rep. 37; Railroad Co. v. Young, 81 Ga. 397, 7 S. E. Rep. 912; Troy v. Railroad Co., 99 N. C. 298, 6 S. E. Rep. 77 ; Bolinger v. Railroad Co., 36 Minn. 418, 31 N. W. Rep. 856. It is also held in many of the states (in fact the rule is well-nigh, if not quite, uni- versal) that a railroad company, under certain circumstances, will not be held free from negligence, even though it may have complied literally with the terics of a statute prescribing certain signals to be given, and other precautions to be taken by it, for the safety of the traveling public atcrossings. Thusin Railroad Co. v. Per- kins, 125 111. 127, 17 N. E. Rep. 1, it was held that the fact that a statute provides certain precautions will not relieve a rail- way company from adopting such other measures as public safety and common prudence dictate. And in Thompson v. Railroad Co.. 110 N. Y. 636, 17 N. E. Rep. C90, it was held that the giving of signals required by law upon a railway train ap- proaching a street crossing does not, un- der all circumstances, render the railway company free from negligence, especially where the evidence tends to show that the train was being run at an undue and highly dangerous rate of speed through a citj- or village. See, also, Louisville, etc., Ry. Co. v. Com., 13 Bush. 388; Weber v. Railroad Co., 58 N. Y. 451. The reason for such rulings is found in the principle of the common law that every one must so conduct himself and use his own property as that, under ordinary cir- cumstances, be will not injure another in any way. As a general rule it may be said that whether ordinary care or rea- sonable prudence requires a railroad com- pany to keep a flagman stationed at a crossing that is especially dangerous is a question of fact for a jurj' to determine, under all the circumstances of the case, and that the omission to station a flag- man at a dangerous crossing may be taken into account as evidence of negli- gence, although in some cases it has been held that it irf a question of law for the court. It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous; as, for instance, that it is in a thickly populated portion of a town or city; or that the view of the track is obstructed either by the company itself, or by other objects proper in themselves; or that the cross- ing is a much traveled one, and the noise- of approaching trains is rendered indis- tinct, and the ordinary signals difficult to be heard, by reason of bustle and confu- sion incident to railway or other busi- ness; or by reason of some such like cause; and that a jury would not be war- ranted in saying that a railroad company should niaiutain those extra precautions at ordinary crossings in thecountry. The following cases are illustrative of various phases of the rules we have just stated: Eaton V. Railroad Co., 129 Mass. 364; Bailey v. Railroad Co., 107 Mass. 496; Pennsylvania R. Co. v. Matthews, 36 N. J. Law, 531; Railroad Co. v. Killips, 88 Pa. St. 405; Railroad Co. v. Richardson, 25- Kan. .391 ; State v. Philadelphia, etc., R. Co., 47 Md. 76; Welsch v. Railroad Co.. 72 Mo. 451; Frick V. RailwayCo., 7dMo..595; Rail- way Co. V. Yundt, 78 Ind. 373; Hart v. Railway Co., 56 Iowa, 166, 7 N. W. Rep 9, and 9 N. W. Rep. 116; Kinney v. Crocker, 18 Wis. 74. But it is insisted that these rules are- none of them applicable to this case, be- cause the whole subject of signals and flagmen, gates, etc., at crossings in Michi- gan is regulated by statute. The claim is- put forth that under the statute of Michi- gan (3 How. St. § 3301) an officer of the state, known as the "railroad commis- sioner, " is charged with the duty of de- termining the necessity of a flagman at any and all crossings in the state, and that, unless an order had been made by him rtquiring a railroad company to sta- tion a flagman at any particular crossing, the failure on the part of the company to provide sucli flagman could not even be considered as evidence of negligence; and that in this case no such order by the conimissionerisshown to have beenraade. Battishill v. Humphreys, 64 Mich. 494, 31 N. W. Rep. 894; Guggenheim v. Railway Co., 66 Mich. 150, 33 N. W. Rep. 161; and Freeman v. Railwav Co., 74 Mich. 86, 41 N. W. Rep. 872,— are relied on as sustaining- this contention. If the construction of this statute by the Michigan courts be as claimed by the defendant, of course this court would feel constrained to adopt the same construc- tion, even if we thought it in conflict with fundamental principles of the law of negli- gence to which we have referred in a pre- ceding part of this opinion, obtaining in other states. Meister v. Moore, 96 U. S. 76; Bowdltch v. Boston, 101 U. S. 16; Flash v. Conn, 109 D. S. 371, 3 Sup. Ct. Rep. 263; Bucher v. Railroad Co., 125 D. S. 55.5, 8 Sup. Ct. Rep. 974 ; Detroit v. Osborne, 1.35 U. S. 492, 10 Sup. Ct. Rep. 1012. But do the Michigan cases cited sustain the defendant's contention? We think not; but rather that they support the rule laid down by the court below in the- charge excepted to. Jn Battishill v. Humphreys, the court below had refused to instruct the jury, upon a request by the plaintiff in error, that "the railroad law of this state (article 4, § 3) lays upon the railroad commissioner of the state the duty of determining the necessity of es- tablishing a flagman upon any particular street crossing of a railway and, upon 126 INJURIES TO TRAVELEES ON HIGHWAY. the testimony and nnder the pleadings in tbis case, the absence of a flagman at Sum- mit avenue is no evidence of any negli- gence upon the part of the receivers. " Such refusal having been assigned as error, the supreme court of the state held that the instruction should have been Riven, and accordingly reversed the judg- ment below. In the opinion the court «aid : "I think the second request of the de- fendants should liave been given. No ref- erence was made to this matter in the cliarge of the court, and it may well be considered, when a request is specifically made, and it is refused, that the jury will take such refusal as a liberty to infer that the request is wrong inlaw, unless some explanation is made by the court of the reasons for sucli refusal to rebut such natural inference * * * Evidence of this nature was introduced, and the re- quest which ought to have been given denied, and we cannot say it did not have some influence upon the jury in determin- ing the question of the negligence of the company." If this decision stood alone, there would "be much force in the contention of the defendant in this case; bat theotherdecis- ions referred to have explained it, and apparently qualifie<] the broad doctrine laid down in it, bringing the rule in Michi- gan in harmony with the generally accept- ed rule obtaining elsewhere. Thus in Guggenheim v. Railway Co., although it was stated in the opinion that "the railroad company Is not com- pelled to keep a watchmau or flagman at every street or road crossing when a jury, Tipon a trial like this, might think it neces- sary to have one stationed ; " and that "this matter is regulated under the stat- tites of our state by the railroad commis- sioner; "yet it was held that when the company itself so obstructs its track that its trains cannot be seen by travelers ap- proaching a crossing, or so that the ordi- nary signals required by statute will not be sufficient to warn travelers of the approach of trains, "some additional warning must be given, and there are cases where a flagman would benecessary to acquit the company of negligence." And it was further held that the trial court was right in instructing the jury that it was the duty of the company to give to the traveler on the highway due and timely warning of the coming of its trains and the approachingdanger"either by bell or whistle, or both, or by some other means, and in such a way as to give him an opportunity, by the exercise of due diligence and care, to meet and guard himself from danger;' thus show- ing that a duty on the part of therailway company to providB against accidents at crossings may and does exist outside of the statute. But the case of Freeman v. Railway Co., which, so far as we have examined, is the latest adjudication of the supreme court of Michigan on the subject, contains the most thorough discussion of the general question of any of those referred to by the defendant, and, so far from sus- taining its contention, is directly opposed to it, and in line with the instruction given by the court below in this case. In that case one of the questions considered bv the court was whether it was negli- gence on the part of the railway in not providing a flagman at the crossing of Genesee street, in the city of Marquette, the railroad commissioner not having required it to station one there. The facts In relation to the hazardous nature of the crossing are referred to particularly in the opinion of the court from which we quote. In considering the question the court went very fully into the merits of it, in all its bearings, and said: "The contention of the defendant is that it was not negligence. It is claimed that under the statutes of this state the duty of de- termining where flagmen shall be sta- tioned devolves upon the railroad commis- sioner; and that, in order to hold defeml- ant liable for such negligence in this case, it should have appeartd in proof that the railroad commissioner had ordered a flag- man to be stationed at this crossing, and that his orders were not obeyed, or that the crossing was such an exceptionally dangerous one that a common-law duty was imposed on the defendant to keep a flagman at that point; and thatnoshow- ing of this kind was made." Replying to this contention the court Said: "We think the judge below ruled correctly on this point, and in accordance with our previous decisions. The jury were instructed, substantially, that it is not the law of this state that at every road or street crossing in a village or city a railroad company is bound to place a flagman. The law puts upon the railroad commissioner the duty of determining the necessity of establishing a flagman upon any particular street crossing of a railroad, and the absence of a flagman at Genesee-Street crossing, where the accident occurred, is of itself no evidence of negli- gence upon the part of the defendant. And the plaintiff must show that the cir- cumstances of the crossing are such that common prudence would dictate that the railroad company should place a flag- man there, or his equivalent. That, be- fore the jury could find this, it must be made to appear to them that the dan- ger at the crossing was altogether excep- tional, — that there was something about the case rendering ordinary care on the part of the witness Grant (the driver of the carriage which was run over and broken up at the crossing) an insufficient protection against injury, and therefore made the assumption of the burden of a flagman on the part of the railroad com- pany a matter of common duty tor the safety of people crossing. ' You have, as I said before, been at this crossing; you have seen the situation; you have seen its relation to travel and to the city ; and it is for you to determine, il you reach that point, under all the circumstances of the case, whether or not it was negli- gence, under the instructions 1 have given you and the evidence, not to have a flag- man there.'" The supreme court then went on to say : "If any fault can be found with this charge, it was too favorable to the de- fendant, in that it connected the necessity of keeping a flagman at the ci-ossing with INJURIES TO TRAVELERS ON HIGHWAY. 127 thfi use of ordinary care on the part of <3rant. The duty of retaining a flagman at this point did not depend on the ques- tion whether Grant, in this particular instance, could by common prudence have avoided this collision or not. It depend- ed rather upon the situation of the cross- ing, its relation to the travel upon the street generally, and the facilities afford- ed, not only the travelers on the street, but the trainmen on the cars, to avoid collisions and accidents of this kind, with- out a flagman to give warning of ap- proaching trains. "I thinlcthe jury vrere warranted in find- ing it to be negligence in the defendant in not providing a watchman at this point. It seems that to the south from Genesee street there was a steep up-grade, so that a train of loaded curs must, in order to ascend the same, cross the street at a higher rate of speed than would, consid- ering the situation of the crossing, be pru- dent to the safety of passers on the street, without warning of the train's approach. A train coming from the north could not be seen at all by those traveling on the street in the direction Grant was driving, until the traveler was within 40 feet of the track, and the train within from 150 to 17-5 feet of the center of the street: and the engineer on the train, being lower down in his cab than a man in a buggy, could not get his eye into Genesee street west of the track, as was the fact in this case, until the locomotive was within fiO or 75 feet from the crossing, and then his vision would only extend 40 or 50 feet west of the track on the street. Under such circum- stances a train ought to run over this crossing so that it could be stopped at «nce, or a flagman ought to be stationed where he could give warning of its ap- proach. When an engineer, at a distance beyond 75 feet from the crossing of a street in a citj' like Marquette, cannot see into the street except the straight line thereof where the track crosses, and the traveler cannot see even the top of the locomotive until begets within 40 feet of the track, something more than ordinary pains to prevent accidents is incumbent both on the 7-ailroad company and also on the traveler, if such traveler is ac- quainted with the situation. "In Battishill v. Humphreys we held, under the pleadings and testimony in the case, that the absence of a flagman at Summit-Avenue crossing in Detroit could not be considered negligence in the rail- road company, as the railroad commis- sioner had not determined that it was necessary to maintain one there. But nothing was said, or intended to be said, in that opinion, that there could be no negligence, in anyciise,in not maintaining a flagman at a street crossing unless such commissioner liad ordered one to be sta- tioned there. In Guggenheim v. Railway Co. the law in this respect is laid down substantially as the circuit judge in this case instructed the jury." We have quoted extensively from the opinion in the case last referred to, because it seems to us a complete refuta- tion of the contention of the defendant herein, and states the law on this point substantially as the court below did in its charge to the jury in this case, and because, also, the facts and circumstances rein five to the railroad crossing there were so very similar to those in this case that it makes it a very strong authority in support of the judgment below. The underlying principle in all cases of this kind which requires a railrcjad coniijany not. only to comply with all statutory requirements in the matter of signals, flagmen, and other warnings of danger at public crossings, but many times to do much more than is required by positive enactment, is that neither the legislature nor railroad commissioners can arbitrarily determine in advance what shall constitute ordinary care or reasonable prudence in a railroad company at a crossing, in every particular case which may afterwards arise; for, as already stated, each case must stand upon its own merits, and l>e decided upon its own facts and circum- stances, and these are the features which make the question of negligence primarily one for the jury to determine, under proper instructions from the court. We think, therefore, that, in that portion of the charge which we have been discussing, the court below committed no error to the prejudice of the defendant. Rut it is claimed that thelast paragraph of that portion of the charge last above quoted, referring to the question whether or notthe trainmen kept u profier lookout and managed the train in a prudent and cautious manner, was erroneous, because, so it is claimed, "there was no evidence that the train hands kept no proper lookout," etc. This contention is also without merit. There was evidence that the ordinary signals of blowingthe whistle and ringing the bell at the crossing were not given, and that the train was running at a more rapid rate than was permitted by the city ordinance. If the jury believed that evidence they must necessarily have found that the trainmen did not keep a proper lookout, and did not manage the train in a prudent and careful manner. The Instruction complained of was cer- tainly not prejudicial to the defendant in this particular, since it referred to matters concerning which evidence had been ad- mitted, and was correct on principle. The most that can be said against it is that the substance of it had perhaps been given In another portion of the charge, and the court below need not have given it; but the giving it In different language, while not necessary, and while also correct practice might require that it be not given, was not reversible error. So far, then, as the instructions of the court below ujjon the first question, as above arranged, are concerned, we conclude there was no error prejudicial to the defendant. And this leads to a consideration of the question of the alleged contributory negligence on the part of the deceased. It is earnestly insisted that, although the defendant may have been guilty of negligence in the management of its train which caused the accident, yet theevidenee in the case given by the plaintiff's own witnesses shows that the deceased himself was so negligent in the premises that but for such contributory negligence on his part the accident would not have hap- 128 INJURIES TO TRAVELERS ON HIGHWAY. pened; and it is therefore contended that the court below should, as matter of law, have so determined, and, it not having; done so, this court should so declare, and reverse its judgment. To this argument several answers might be given, but the main reason why it is unsound is this: As the question of negligence on the part of the defendant was one of fact for the jury to determine under all the circum- stances of the case, and under proper instructions from the court, so also the question of whether there was negligence in the deceased, which was the proximate causeof the injury, was likewise a question of fact for the jury to deteraiine under like rules. The determination of what was such contributory negligence on the part of the deceased as would defeat this action, or, perhaps, more accurately speaking, the question of whether the deceased, at the time of the fatal accident, was, under all the circumstances of the case, in the exercise of such due care and diligence as would be expected of a reasonably prudent and careful person umier similar circum- stances, was no more a question of law for the court than was the question of negligence on the part of the defendant. There is no more of an absolute standard of ordinary care and diligence in the one instance than in the other. This rule is sustained bv the Michigan authorities, (Mynning v. Railroad Co., 64 Mich. 93, 31 N. W. Rep. i47; Underbill v. Railway Co., 81 Mich. 43, 45 N. W. Rep. 508; Baker v. Railroad Co., fi8 Mich. 90, 35 N. W. Rep. 836; Engel v. Smith, 82 Mich. 1, 46 N. W. Rep. 21;) and its correctness is apparent from an examination and analysis of the generally accepted definitions of contribu- tory negligence, as laid down by the courts and by text-writers. Without going into a discussion of these definitions, or even attempting to collate them, it will be sufficient for present purposes to say that the generally accepted and most reasona- ble rule of law applicable to actions in which the defense is contributory negli- gence ma.v be thus stated : Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immedi- ate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this quali- fication, which has grown up in recent years, (having been first enunciated in Davies v. Mann, 10 Mees. & W. ,"546,) that the contributory negligence of the party injured will not defeat the action if it be Siiown that the defendant might, by the exercise of reasonable care and pru- dence, have avoided the consequences of the injured party's negligence. Coasting Co. v. Tolson, 139 U. S. 551, 558, 11 Sup. Ct. Rep. 653, and cases cited; Douohue v. Railroad Co., 91 Mo. 357, 2 S. W. Rep. 424, and .S S. W, Rep. 848; Railroad Co. v. Patton, 31 Miss. 1.56; Deans v. Railroad Co., 107 N. C. 686, 12 S. E. Rep. 77; 2 Thomp. Neg. 1157; Cooley, Torts, (1st Ed.) 675; 4 Amer. & Eng. Enc. Law, tit. "Contributory Negligeucu, " 30, and au- thorities cited in note 1. With respect to the question of the al- leged contributory negligence of the de- ceased, the court charged the jury as fol- lows: . "Turning, now, to the conduct of Smith, and subjecting that to the same test of reasonable prudence and cautlonsconduct of a person in his situation, you will un- derstand that, no matter how negligently the company ran this train, or how un- reasonably they neglected to provide sufH- cient safeguards at the crossing, if he brought his death upon himself by hisown negligence his administrator is not en- titled to a verdict in this suit. "So if you find thathe wasfamiliar with this arossing and its dangers, one and all of them; that he frequently used it, and knew how to act in using it to protect himself; and that under the special cir- cumstances which you find he failed to act as a prudent and cautious man should have acted from beginning to end, or that he omitted some precaution that a pru- dent man ougttto have taken, whereby he lost his life,— the plaintiff cannot recover. He should use all his faculties of seeing and hearing; he should approach cautious- ly aud carefully; should look and listen, and do everything that a reasonably pru- dent man would do before he attempted to make the crossing. Scrutinize his act- ings and doings under the light of the then situa tion ; the nature and character of the crossing; the fact of the difficulty of ob- servation; the time of da.y and the proba- bility of danger from passing trains: the fact thatthere wereother railroads side by side; that another train on one of these was actually approaching and passing; the noise and confusion; possibly thenoise and contusion of signals; and every fact and circumstance bearing on the case to influence his conduct then and there, un- der those circumstances and not any other circumstances, — and say upon your fair and impartial judgment whether he acted as a reasonable and prudent man should have acted, and with the due care and caution demanded by the exigencieo of the occasion. "If he did so act, and the railroad com- pany was negligent, bis administrator is entitled to your verdict. If he did not so act, the railroad company is entitled to your verdict, whether it was negligent or not. If it was not negligent, it is entitled to your verdict, no matter how Smith acted." These instructions are so full and com- plete, and are in such entire accord with the rules of law applicable to cases of this character, that no fault whatever can be found with them. They embody substan- tially the entire law of the case on the questions under consideration, and were applicable to every feature of it. Indeed, it they are open to any criticism at all it is that they were more favorable to the defeudantthan it had the rightto demand, under the rules above stated, since they enabled the defendant to be relieved from any liability in the case if the deceased had been guilty of contributory negligence, even though it might, by the exercise of ordinary care and prudence, have averred the results of such negligence. Mr. Pierce, In his work on Railroads, (page 343,) after a review of the authorities on the sub- ject, lays down substantially the same INJURIES TO TRAVELERS ON HIGHWAY. 129 general rule as to tire care required of travelers at railway crossings, in the fol- lowiiif? terms: "A traveler upon a high- way, when approaching a railroad cross- ing, ought to make a vigilant use of his senses of sight and hearing, in order to avoid a collision. This precaution is dic- tated by common prudence. He should listen for signals, and look in the different directions from wliich a train may come. If by neglect of this duty he suffers injury from a passing train, he cannot recover of the company, although it may itself be chargeable with negligence, or have failed to give the signals required by statute, or he running at the time at a speed exceeding the legal rate." See, also, generally upon this question, 4 Amer. & Eng. Enc. Law, 68-7S, and authorities ciced in the notes. The recent ease of Sullivan v. Railroad (^o., from Massachusetts, which, in ad- vance of the official reports, is published in 28 N. E. Rep. 911,1 jg go similar to theone at bar on thfs question that it deserves more than a passing notice. The sub- stance of the case is stated in the syllabus by the reporter as follows: "Plaintiff, a woman about 65 years of age,of ordinary intelligence, and possessed of good sight and hearing, was injured at a railroad crossing. The railroad had been raised several feet higher than the sidewalk, and the work of grading was still untinighed, and the crossing in a broken condition. There were three tracks, and a train was approaching on the middle one. The view was obstructed somewhat with buildings, but after reach- ing the first track it was clear. The evi- dence showed that the plaintiff was famil- iar with the passing of trains; that she did not look before going upon the track ; and that, it she had looked, she could have seen the train a quarter of a mile. When the whistle sounded she looked directly at the train, and hurried to get across. Plaintiff testified that she looked beff possible wrong in placing his animals on a railroad track, yet the railroad company is bound to exercise reasonable care and dili- gence in the use of its road; and if for want of that care the animals are injured, the company is liable." So, in Connecticut in Isbell v. Railroad Co., 27 Conn. 393, it was held, "that where the plaintifC's oxen were at large in a highway in violation of law, and went upon the rail- road track, and were there injured by the negligent management of the train by the servants of the railroad, the railroad was I'esponsible for the damages, though the cat- tle were trespassers. See, as justifying this conclusion. Transportation Co. v. Vanderbilt, 16 Conn. 421; Birge v. Gardiner, 19 Conn. 507; Daley v. Railroad, 26 Conn. 591; John- son V. Patterson, 14 Conn, t." In Illinois, where the rule of "comparative negligence" is recognized, it has been de- cided "in an action against a railroad com- pany to recover the value of cattle alleged to have been killed on the defendants' road by INJURIES TO CATTLE. 153 their locomotive and train, where it appeared that the cattle could have been seen on the track by the engineer, if he had been on the lookout, for a distance of more than half & mile, there being nothing to obstruct the view, the engineer making no effort to avoid the danger, and never slacking the speed of the train, but rushing on at a rapid rate, without any signal to give the alarm, that it was gross negligence on the part of the engineer not to stop the train in time to avoid the danger, for which the company should be held responsible, even though the cattle were upon the track without the fault of the company." Railway Co. v. Barrie, 5.5 111. 226. And in Railway Co. v. Bray, 57 111. 514, it was held, "that where stock was Tiilled upon a railroad-track, and the engineer in charge at the time could by the use of ordinary care and skill, without danger, have stopped the train in time to avoid the colli- sion, the company is liable, though the ani- mals were wrongfully on the track." See, also. Railway Co. v. Ingraham, 58 111. 120, and Railway v. Wren, 43 111. 77. There have been in Illinois a number of <;ases, where it has been held, "that stock getting upon a railway are trespassers, and the company are not liable for injury they may sustain, unless it is occasioned by gross negligence of the railroad's servants." See Railroad Co. v. Reedy, 17 111. 580; Railroad ■Co. V. Rockafellow, 17 111. 541; Railroad Co. V. Thompson, 17 HI. 131; Railroad Co. v. Patchin, 16 111. 198; Heade v. Rust, 39 111. 192. In Iowa, in the case of Parker v. Railroad Co., 34 Iowa, 309, It was decided, "that a railroad company is bound to have in charge of its engine men of reasonable skill and Judgment, and the engineers thus in charge must exercise such judgment and skill in avoiding injury to cattle on the track, having ■due regard to the safety of the train and pas- sengers, in order to exonerate the company from liability." In Kentucky, in the case of Railroad Co. V. Walnscott, 3 Bush, 151, decided in 1867, Judge Robertson, delivering the opinion of the court, says: "Had the mule been on the track far enough ahead to enable the en- gineer by proper means to stop the locomo- tive before it reached the animal, or to have ■enabled him to retard the train's progress until the mule could have been driven out of all danger of collision, it was his duty to see and save it; and failing so to do, the appellant would have been responsible for the value of the mule." This seems to be in- consistent with the decision of the court in Railroad Co. v. Ballard, decided in 1859 (see 2 Mete. [Ky.] 177), when the court held ''that the paramount duty of a railroad com- pany through its agents entrusted with the conduct of a train is to look to the safety of the persons and property thereon, subordi- nate to which it is their duty to avoid un- necessary injury to animals straying on the road. But there Is a peculiar obligation up- on their owners to keep them off the road. And if they are found there, whilst railroad companies, their agents and servants are not allowed to omit all care and wilfully and wantonly injure them by running engines and trains over them, yet said companies are not to be held liable for injuries inflicted un- der such circumstances, unless it is proved that the conduct of the companies or their agents has been reckless, wanton and wil- ful." To sustain which position among oth- er cases the older Illinois cases above re- ferred to are cited. In Earmes v. Railroad Co., 98 Mass. 563, Chapman, J., thus states the law: "But though the sheep were trespassers, this would not authorize the defendant to kill, maim or otherwise injure them wilfully or carelessly. Even in driving off animals tres- passing on one's land reasonable care must be taken. And if they get upon the track, where they may expose passing trains and the people upon the trains to great danger, the managers of the trains are still bound to use reasonable care to avoid injuring the an- imals, and may not carelessly run upon them. But they are not bound to presume that such animals will be found upon the track; and if they injure or destroy the animals without negligence they are liable not to the owner." In Locke v. Railroad Co., 15 Minn. 355 (Gil. 283), referring to this case among others, the court held, that "if an engineer of a railroad train saw a cow on its track, he would be bound to exercise all reasonable and proper care to avoid injuring it, and if he failed to do so, the company would be responsible, but that he had a right to presume that there was no cow on the track, and he was therefore not bound, so far at least as his duty to the plaintiff was concerned, to look ahead to see if cattle were on the track, and his failure to do so would not be such negligence as would render the company responsible to the owner of the cow." It should be observed, as bearing upon the question whether it is a duty to the owner of cattle that the engineer should look ahead to see that cattle are not on the track, that in Massachusetts the law required the rail- roads to fence their tracks; and in Minne- sota, at the season of the year when this cow was killed, the law required the owners of cattle to keep them at home enclosed. The rule laid down in Mississippi, in Rail- road Co. V. Miller, 40 Miss. 48, is: "The railroad company, in order to prevent injury and destruction to stock on their track, are only bound to use such reasonable care and prudence in running as a prudent man en- gaged in the same business would use to pre- vent such injuiy and destruction." See, also. Railroad Co. v. Patton, 31 Miss. 156. In Raiford v. RailroajJ Co., 43 Miss. 329, the court says: "The plaintiff might well suffer his horses to run at large; but in so 154 INJUKIES TO CATTLE. doing he took the risk of their loss or injury by unavoidable accident. The fact that the animals were on the road did not justify the servants of the company in regarding them as there unlawfully and in violation of the rights of the company, and in any measure release the company's servants from the ob- servance of proper care and precaution." In New York, on the contrary, it has been held by the supreme court that the owner of domestic animals straying upon the track of a railroad company and injured in a collision with its engines while operated in the ordi- nary manner has no remedy for the loss against the company, although it might have been avoided by the exercise of ordinary care on its part; that gross negligence even in the absence of intentional injury will not subject the company to liability. Railroad Co. V. Manger, 5 Denio, 255, 4 N. Y. 349; Clark V. Railroad Co., 11 Barb. 112; Tal- midge v. Railroad Co., 13 Barb. 493; Terrey V. Railroad Co., 22 Barb. 574, 586. In New Jersey where the law required the owner of cattle to keep them at home en- closed, it has been held, thq,t if permitted to run at large, nothing but wilfulness on the part of the engineer, or such negligence as would amount to wilfulness, would make the company liable. See Vandegrift v. Rediker," 22 N. J. Law, 189. In North Carolina, in Jones v. Railroad Co., 70 N. C. 626, it was decided that "where the plaintiff's horse was in his pasture, through which the defendant's road run, and was run over in the day-time by one of the engines of the defendant, it appearing on the trial that the horse, before being struck, ran some two hundred yards on the track, and there was nothing to prevent the engineer from seeing him, and no alarm was given by the engineer until about the time the horse was run over, that this was such negligence on the part of the engineer as would make the defendant liable in damages for the in- jury to the horse." In Ohio, in the case of Railroad Co. v. Smith, 22 Ohio St. 244, the court considered the question whether the fact that the horses were trespassing on the track, excused the servants of the railroad company from the exercise of ordinary care; and it held, it did not; and also the question whether the , additional fact that the road was fenced, excused the engineer as respects the owner ef stray animals, from looking about to see whether such animals were on the track or not; and in reference thereto the court say: "They were bound to use the ordinary pre- cautions to discover danger as well as to avoid Its consequences after it became known." And again: "The fact that the road was fenced at the place of collision with the horses, was a circumstance to be considered in connection with the other cir- cumstances of the case in determining whether the engineer was guilty of negli- gence, in not looking ahead to discover the danger in time to avoid it. The fact that the road was fenced rendered it less probable that wandering animals would be on the track; but it cannot be said that the en- gineer, as a matter of law, by reason of the fences was wholly excused from keeping a look-out ahead of the train." The instruc- tion given, which was approved by the court, was: "That the defendant had the right to the free and unobstructed use of its railroad- track, and that the paramount duty of it» employes was the protection of the passen- gers and property in the train, and the train itself. But this being their paramount duty, they were bound to use ordinary care and diligence so as not unnecessarily to injure- the property of others." See, also, Ker- whacker v. Railroad Co., 3 Ohio St. 172; Railroad Co. v. Lawrence, 13 Ohio St. 69; Railroad Co. v. Terry, 8 Ohio St. 581. On the contrary, it has been held in Wiscon- sin, in Bennett v. Railway Co., 19 Wis. 158: "When the plaintiff's colt was trespassing on the railroad track, the company is not liable for injuring it, unless the injury was in- flicted wilfully or from gross negligence by the company's servants." See, also, Stricke V. Railroad Co., 9 Wis. 202. In Railroad Co. v. Skinner, 19 Pa. St. 51, the case itself was one in which probably the court properly held, that the railroad company was guilty of no negligence; but the syllabus of the case, adopting very strong language, used by Gibson, J., is "that an owner of cattle suffered to go at large, and which are killed or injured on a railway, has no recourse to the company or its servants." In Jackson v. Railroad Co., 25 Vt. 150, it was decided "that a railway company will be liable for either recklessness or want of common care at the time and after cattle are discovered by them on their track, or for wan- ton injury." In that state railroad companies are required to maintain fences along their roads. In Trout v. Railroad Co., 23 Grat, 619, the plaintiff's horses got out of his field on a rail- road track, by some third person without his knowledge leaving the gate open, and they were killed by the company's engine. The engineer had ample time after seeing the horses to stop the engine before reaching the place where they were killed; but he did not slacken his speed, but merely blew his whistle to frighten them off the track. On a demurrer to evidence by the defendant, the court held that the railroad company was liable. In this state it has been decided, that it is the duty of the servants of a railroad com- pany, so far as is consistent with their other paramount duties, to use ordinary care to avoid injury to cattle on the track. They are bound to adopt the ordinary precaution to dis- cover danger as well as to avoid its conse- quences after it is known. Baylor v. Railroad Co., 9 W. Va. 271. And in Blaine v. Railroad Co., 9 W. Va. 254, it was decided, that the remote negligence of the plaintiff will not IN JUKI ES TO CATTLE. IbS- prevent Ms recovery for an injury to his prop- erty immediately caused by tJie negligence of the defendant. The negligence of the plain- tiff, that defeats a recovery, must be the prox- imate cause of the injury; and that suftering cattle to run at large, by means whereof they stray on an uninclosed railroad-tracli, is not in general a proximate cause of the loss; and hence though there may have been some neg- ligence in the owners permitting cattle to go at large, such negligence being only a remote cause of the loss, it will not prevent his re- covering from the railroad company the value of the cattle, if the immediate cause of their death or injury was the negUgence of the company's servants in conducting the train. Though these authorities are to a consider- able extent conflicting, yet the weight of au- thority and reason are decidedly in favor of the proposition that though by the negligence of the plaintiff his cattle are on a railroad- track uninclosed, yet the servants of the rail- road company are bound to use ordinary pre- caution to discover that the cattle are on the track as well as to avoid injuring them when they are discovered to be on the track; and if they fail to do so the company is respon- sible. This responsibility they will not be re- lieved from by the fact, that under the circum- stances which existed it was the duty of the owner of the cattle to have given to the train, which he saw approaching, a signal of the danger, and he failed to do so; nor by the fact, that the owner of the cattle saw the train approaching and could have driven his cattle off the track, but from negligence failed to do so. A party Is only responsible for the natural consequences, which follow from his negligence, that is, such consequences as he might reasonably expect to follow from his negligence. The owner of the cattle, though he neither gave a signal to the approachmg train nor drove his cattle off the track, could not reasonably expect, that, if they were seen in time by the engineer of the railroad train, and he could rea,dily avoid injuring them, he would not do so. Therefore in the view of the law he is not responsible by reason of his neglect for the injury of his cattle. He did not directly contribute to this result; and in the view of the law it was caused entirely by the negligence of the railroad company's engineer In not using the ordinary precaution to discover that the cattle were on the track and to avoid injuring them. I have examined the various cases referred to by the counsel of the plaintiff in error; and I do not find that any of them are incon- sistent with the views I have above expressed. Many of them have a very remote bearing on the questions Involved In this case, some of them refer to the extent to which the plain- tiff's negligence must contribute directly to the result in order to prevent his recovery, that Is, whether it should be a substantial con- tribution to the result directly, or whether a slight contribution by the plaintiff directly to the result would bar him, when the defend- ant's negligence was gross. This point Is not according to my view involved in this case, and I have therefore waived expressing- any opinion upon it. A number of these cases sustain the view of Justice Swayne in delivering the opinion of the supreme court in Railroad Co. v. Jones, 95 U. S. 442, who says: "Where the plaintiff himself has so far contributed to the mistor- tune by his own negligence or want of ordi- nary care and caution, that but for such neg- ligence or want of care and caution on his part the misfortune would not have happened,, he is not entitled to recover." As I under- stand Justice Swayne when he speaks of the- plaintiff contributing to the misfortune, to mean contributing directly and not remotely, there is nothing in that case or in any of the- others, to which the counsel for the plaintiff in error refers, to indicate that any contribu- tion of the plaintiff is referred to as barring him of his right of action except direct contri- bution to the result. In fact, as we have seen, remote contribution is not regarded by the law as any contribution. The law, as we have seen, does not regard the remote cause- but treats it just as though it had no exist- ence; and when Justice Swayne and others refer generally to the cause of a misfortune,, they must be interpreted to refer to the direct or proximate cause and not to the remote cause. So understanding him, there is no in- consistency between the views he has ex- pressed and those I have expressed. He seems not to have had in his mind or under consideration, whether the plaintiff's negli- gence was the proximate or remote cause of the injury, but rather the question, what de- gree of negligence on his part would bar his recovering? .Negligence is a mixed question of law and fact generally, and what particular facts con- stitute negligence is generally a question of fact for the determination of the jury from all the evidence before them bearing on the sub- ject, rather than a question of law for the determination of the court. The most the court can do ordinarily, when there is a con- trariety of testimony, and the question of care or negligence depends upon the consid- eration of a variety of circumstances, is to define the degree of care and caution required by law, and leave to the practical judgment and discretion of the jury the work of com- paring the acts and conduct of the parties concerned, with the duties required of them under such circumstances. There may be some cases where the question of negligence may be properly one of law for the court; but such a case must present some prominent act not depending upon surrounding circum- stances for its quality, and in regard to the effect and character of which no room is left for ordinary minds to differ. Negligence Is, however, generally a relative term, very much dependent upon the particular facts and cir- cumstances of each case that occurs; so that what may be ordinary or reasonable care in. 156 INJURIES TO CATTLE. one state of the case may be gross negligence in another. It is not proper for the court to separate a few facts from their connection with others, and malie them the basis of an instruction of this character. Such a course would tend to mislead the jury. While the court has the power to set aside the verdict of the jury and grant a new trial in a proper case, still it is not proper for the court to derogate from the proper province of the jury, as it would do if it should separate a particular fact from Its connection with others on which it is depend- ent for its quality, and instruct the jury that such fact constitutes or does not constitute negligence. See Snyder v. Railroad Co., 11 W. Va. 34, 35; Railroad Co. v. Fitzpatricli, 32 Md. 32-^4; Railroad Co. v. Boteler, 38 Md. 586; Merchants' Bank of Baltimore v. Bank of Commerce, 34 Md. 53. Not only may that be negligence in one state of the case, which would not be in an- other, but what may be negligence in one country may not be negligence in another. The common law of England Imposes on the owner of domestic animals the duty of keeping them on his own land; and he be- comes a trespasser, if they stray upon the land of another uninclosed. But this com- mon law rule is not in force in this state. In this state a railroad company cannot com- plain, that cattle stray on its uninclosed road. The owner of cattle so sti-aying on an uninclosed road are not trespassers. See Blain v. Railroad Co., 9 W. Va. 252, and Bay- lor V. Railroad Co., 9 W. Va. 270. These principles necessarily lead us to the conclusion, that a railroad company, whose road is uninclosed, has no right to presume that the owners of domestic animals will keep them at home and not suffer them to roam upon the track of their railway. The law of West Virginia does not impose such a duty on them. All the authorities agree, that where dam- ages were occasioned entirely by the negli- gence of the defendant, the plaintiff is en- titled to recover; but the burden of proving this negligence is on him. If the plaintiff has contributed directly to the injury in the manner above fully explained, he cannot re- cover; but the burden of proof is on the de- fendant to establish such contributory neg- ligence in this state. See Snyder v. Railroad Co., 11 W. Va. 30. Before applying the principles of law we have stated to the case before us, we will dispose of a preliminary question raised by the demurrer to the declaration. The plain- tiff in error in his assignment of erroi-s and in his arguments points out no fatal defects in the declaration, and I perceive none. It seems to be substantially like the declara- tion in Blain v. Railroad Co., 9 W. Va. 252, and that declaration this court held to be good on demurrer. We will now consider the various eiTors as- signed by the plaintiff in error as occurring during the trial of the cause and apply to them the principles of law we have stated. Instruction A asked by the defendant's counsel, instead of being modified by the court and then granted, ought to have been refused. It was improperly interfering with the province of the jui-y for the court to in- struct them, that it was the duty of the de- fendant, if she could do so, to drive her horses from the railroad or to warn the de- fendant of the threatened danger by signal or otherwise, and if she failed in either re- spect, the plaintiff was guilty of contributory negligence and could not recover. Whether under all the circumstances it was or was not her duty to give a signal of the threat- ened danger, and whether it was negligence under the then existing circumstances to fail to do so, was a question of fact, with which the court ought not to have interfered. The necessity or propriety of the plaintiffs giv- ing such signal obviously depended on the surrounding circumstances. If for instance the cattle had been in a position, that the engineer could not see them, and the plain- tiff could see them, it might be his duty to give the approaching train a signal of this seci'et danger; and on the other hand if the plaintiff's servants were actively engag- ed in attempting to drive the cattle off the track, and they were in full view of the en- gineer, it would have been not only useless but improper for the plaintiff's servants to desist from driving the cattle off the track, to do, what might be under these cincum- stances an idle thing, that is, to give such a signal. The giving of any instruction therefore by the court on this point was an Improper Interference by it with the prov- ince of the jui-y on the principles we have laid down; and it was calculated to mis- lead the jui^y. If the jury had obviously based their verdict on the assumption, that the plaintiff was guilty of negligence under the circumstances in not giving such signal, and the circumstances had been such as ob- viously made it the duty of the plaintiff's servants to give such signal, the court could have set aside the verdict and have gi'anted a new trial. Under the circumstances which existed as shown by the record the court could not properly have set aside the ver- dict, because the jury assumed, that it was not negligence in the plaintiff to fail to give such signal. Much less could the court prop- erly give an instruction to the jury, which might lead the jury to infer, that it was the duty of the plaintiff to give such signals. But this error of the court did not prejudice the defendant and he could not in this court complain thereof. It complains, however, of the modiflcatiou of this instruction appended by the court which was in effect, that though the plain- tiff had been guilty of negligence in not driving the horses off the track or in not giving a signal to the approaching train, yet the jury should find a verdict for her, if they INJURIES TO CATTLE. 157 further found that after the cattle were dis- covered by the engineer to be upon the track, or ought to have been so discovered by the use of ordinary diligence, he failed to use ordinary precaution to avoid the danger. Though this modification is not very -well ■worded, It substantially lays dovcn the law, as we have stated it above, and the defend- ant could not complain of its being given. The latter part of the defendant's instruc- tion B, which is, "that when the horses were discovered on the railroad-track, the first and paramount duty of the engineer was to pro- vide for the safety of passengers and prop- erty upon the train, and after that to avoid unnecessary injury to them, if it could be done by the exercise of ordinary and rea- sonable care" is good law; and in a proper case it ought to have been granted. But there was no evidence tending in the least to show, that the conduct of the engineer in this case was influenced or could possibly have been influenced by his desire first to provide for the safety of passengers, and property, upon his train. And the court might for this reason have properly declined to give this part of the instniction. The legal proposition it states is good law, yet it was inapplicable to the evidence, which had been offered, and was a mere abstract legal proposition, which might, if given by the court, tend to mislead the jury. The first part of this instniction was still more objectionable, as it would, if given, have tended to mislead the jury. They could on- ly di-aw from it the conclusion, that the rail- road company would have a right to com- plain, that the plaintiff's horses were on their track, though their road ran through the meadow of the defendant and was un- inclosed. Such is not the law, as we have seen, in this state. The court thereupon properly rejected the defendant's instruction marked "B." The first part of defendant's instruction 0, lays down an abstract proposition of law correctly, that is, "that a railroad company has the right to regulate the management and speed of their train solely with refer- ence to the security of persons and property in their charge." But it is difficult to see any bearing this law could have on the facts of the case in evidence before the jury. The instruction then proceeds, "and they may make their plans upon the reasonable and legal presumption that the owners of domestic animals will keep them at home and not suffer them to stray upon the track." It is difficult to say what was meant by the words "they may make their plans." If this refers to the action of the superintendent of the road in making out his time-tables and providing for making connection with other roads, the proposition contained in the in- struction is good law; but It is law which could have no possible connection with this case, could not possibly enlighten the jury as to their duties, and might perhaps mis- lead them, and it ought for this reason to have been refused by the court. If by say- ing "the company might make its plans upon the legal and reasonable presumption, that the owners of domestic animals would keep them at home and not suffer them to stray upon the track," the instruction meant, as I supposed it did, "that the company might run their trains on this legal presumption," then the instruction was obviously pertinent to the case and would have given the jury essential aid in the performance of their duty. But, unfortunately for the defendant, if this was the meaning of the instruction, it laid down a proposition which is not good law in this state. It is not a reasonable and legal presumption in this state, that the owners of cattle will keep them at home and not permit them to stray upon the track. The law does not require the plaintiff to keep her cattle at home, but permits her to let them run at large. The railroad ran through her meadow and was uninclosed. She had a right to pasture her horses on her meadow; and having this right, clearly the railroad company could not reasonably pre- sume her horses would not stray upon the railroad-track. On the contrary they ought rather to presume that they would, and to run their trains with the care and caution which such presumption made necessary. The instruction, I suppose, meant to state the law otherwise; and if it did not, it is obvious that it was liable to be so under- stood by the jury; and the court therefore did not err in refusing to grant this instruction. Instruction B was well calculated to mis- lead the jury; and instruction C would cer- tainly have done so. They were both prop- erly rejected. All the evidence is not set forth; and of course this court cannot say, that the cir- cuit court erred in refusing to grant a ne-^^ trial. The evidence, that is set forth, seems to be such as renders it highly probable that the jury was justified in finding a verdict for the plaiiltiff. This court must presume, in the absence of anything showing that the verdict is wrong, that it was right. The judgment of the circuit court, there- fore, of March 28, 1878, must be afflnned;' and the defendant in error must recover of the plaintiff in error her costs in this court expended and damages according to law. The other judges concurred. Judgment affirmed.' See the contrary view, as to the duty of the company to avoid a collisiou, defended in Illi- nois Central R. R. Co. v. Noble, 142 111. 578, 32 N. E. 684. 158 INJURIES BY EIEE. Fire spreading over intervening peat bog. Statute, guish fire. Interference of third party. Dnty of company to extin- BIMMONDS V. NEW YORK & NEW ENG- LAND E. R. CO. (52 Conn. 264.) Supreme Court of Errors of Connecticut. Oct. Term, 1884. Action to recover damages caused by fire communicated from defendant's locomotive. There was a judgment for plaintiff. Defend- ant appealed. Aflfrmed. E. D. Robbins, for appeEant. •drews, for appellee. J. P. An- LOOMIS, J. A fire was communicated by a locomotive engine of the defendant to land of one Davis adjacent to the defendant's rail- road track. The fire by its own action and by the operation of natural causes spread and passed across the land of Davis to the land ■of the plaintiff, where the injury set forth in the complaint was done. While the fire was burning on the land of Davis the tracli foreman of the defendant, with men under him, commenced to extin- guish it, which could easily have been ac- complished. While the traeli foreman and liis men were so engaged, Davis came and "said he preferred that the bogs on his land should burn, if the fire was subdued else- where so that It could not spread. The fire then was extinguished elsewhere, and there- upon the track foreman and his men left, leaving some of the bogs burning. The court finds that the servants of the ■defendant were not prevented by Davis from extinguishing the fire, but that they sup- posed, as Davis did, that no injury could re- sult if the fire was left in the bogs. In this, however, they were disappointed, for the fire ■penetrated to the peat beneath the bogs, and so spread to the plaintiff's land, which ad- joined the land of Davis on the east. These facts are made the basis of the recovery of ■damages of the defendant by virtue of the provisions of a statute enacted in 1881 (Laws 1881, c. 92), the first section of wkich is as follows: "Where any injury is done to a building or other property of any person or -corporation, by fire communicated by a loco- motive engine of any railroad corporation, without contributory negligence on the part of the person or corporation entitled to the care and possession of the property injured, the said railroad corporation shall be held re- sponsible in damages to the extent of such injury to the person or corporation so in- jured; and any railroad corporation shall have an insurable interest in the property for which it may be so helo responsible ia damages along its route, and may procure insurance thereon in its own behalf." Aside from the effect of the interposition of Davis, which we will presently consider, it is obvious that the facts are ample to bring the case within the provisions of the statute. The right of the plaintiff to recover is not dependent at all upon any negligence on the part of the defendant as at common law nor is it material that the fire was not directly communicated to the plaintiff's land, but reached it through the intervening land of another. In Perley v. Railroad Co., 98 Mass. 99, un- der a similar statute, the sparks from the locomotive engine first set fire to the grass in the open field near by, which spread over the premises of several different ownei-s to the plaintiff's wood lot half a mile distant, where the injury was done for which the rail- road company was held liable. Such a construction of our statute the de- fendant does not seek to controvert, but re- lies solely on the principle that the interven- tion of the independent act of Davis between the act of the defendant complained of and the injury to the plaintiff, constitutes in law the proximate cause of the injury, and that therefore the act of the defendant is too re- mote. This introduces us to a realm of law abound- ing in nice distinctions, which however need not be particularly discussed. The general principle which the defendant invokes is es- tablished by a strong array of authorities, but the facts as fonnd by the court would seem to forbid its application to the present case. In the first place, it is difficult to discover in the independent act of Davis a sufficient power to stand as the cause of the injury. It is not pretended that he contributed any new force or power whatever to modify the result of the original act. The argument is merely that he adopted the fire as his own, but in so doing he did nothing to increase or extend it, but simply let it alone, so that the original cause was allowed to work out its natural consequences Then too this adoption of the fire was a matter confined to Davis and the defendant, and was voluntarily assented to by the latter. How then could it relieve the defendant of a primary liability which the law imposes In favor of third persons? Could the defendant delegate its duty to another and thereby escape liability? If the serv- ants of the defendant were obliged by law to leave the premises of Davis upon his sug- gestion before the fire was extinguished, it might well be contended that a new power had intervened which made the act of the de- fendant too remote. But nothing of this kind happened. The finding says that Davis did not prevent the extinguishment of the fire. Whether he could have done so right- fully we are not now called upon to deter- mine. In making the railroad corporations insur- ers against the consequences of fire communi- cated by thtir locomotive engines, the law Implies in them the right and duty to put it out when communicated. We know that under the general police INJURIES BY FIRE. 159 power of a state and by the law of overruling necessity private property during a fire may be destroyed to prevent the spreading of a conflagration. Whether this principle would allow a railroad corporation to enter upon land against the will of the owner to extin- guish a small fire which under the circum- stances did not at the time appear to be threatening to other property, may admit of some question, which we will not now at- tempt to solve. It will sutfice for the pm-- poses of this case that there was no prohibi- tion at all. Assuming that the statute is valid it makes railroad corporations insurers of all the property along the road liable to be burned by the running of locomotive en- gines. As soon as a fire is thus kindled the duty arises to prevent its spreading to other adjoining lands. The obligation is very dif- ferent from that of the landowner at common law who is liable only for the consequences of his negligence as to the fire which he kin- dles on his own land. The railroad corporation is bound at all hazards to prevent the fire from spreading, and is liable inevitably unless there is con- tributory negligence on the part of the land- owner. Now the duty which the defendant owed the plaintiff could not be excused by an arrangement made with a third person with- out the plaintiff's consent. One may pai-t with his rights, but can never cancel his duties without the consent of those to whom they are due. For these reasons we think the interven- tion of Davis was not sufficient to break the connection between the act of the defendant complained of and the resulting injury to the plaintiff for which this suit is brought. There was no error in the judgment com- plained of. In this opinion the other judges concurred. 160 I2f JURIES BY FIRE. Fire iiisnTaiice a contract of indemnity. Subrogation. Compromise and release by party injured, saving his rights against his insurer. or coals from engine, burning hotel buildfng. CONNECTICUT FIRE INSURANCE CO. v. ERIE RAILWAY CO. (73 N. Y. 399.) Court of Appeals of .New York. April '£i, 1878. Action by an insurance company against a railway company to recover the amount paid by plaintiff to a third person under a policy of insurance, on the ground that the loss was caused by defendant's negligence. A verdict for plaintiff was set aside, and the complaint dismissed. Plaintiff appealed. Re- versed. M. H. Hirschberg, for appellant. Lewis E. Carr, for respondent. CHURCH, C. J. It must be assumed from the verdict of the jury that the buildings were burned through the negligence of the defendant's agents and servants, and it is too well settled to render the citation of au- thorities necessary, that as between the plain- tiff, the insurer, and the defendant, the latter was ultimately liable for the loss. A Are pol- icy is a contract of indemnity, and if a loss is occasioned by the wrongful act of another the insurer is subrogated to the rights and remedies of the assured, and may maintain an action against the wrong-doer. If the as- sured receives the damages from the wrong- doer before payment by the insurer, the amount so received will be applied pr|) tanto in discharge of the policy. Hart v. Railroad Corp., 13 Mete. (Mass.) 99. If the vcrong-doer pays the assured after payment by the in- surer, with knowledge of the facts, it is re- garded as a fraud upon the insurer, and he will not be protected from liability to the latter. Clark v. Wilson, 103 Mass. 223; In- surance Co. V. Hutchinson, 21 N. J. Eq. 107; Graff V. Kip, 1 Edw. Ch. 619. The question is presented in this case in a somewhat novel aspect, and unlike that of any other case to which our attention has lieen called. The plaintiff paid the policy after the release by the assured to the defend- ant, and by consenting to the judgment the payment must be regarded as voluntary on its part. If the plaintiff might have inter- posed the payment by the defendant to the assured, and the release as a defense to an action by the latter upon the policy, then the plaintiff cannot maintain this action. This question and the liability of the defendant depend upon the construction to be put upon the release, or rather if that construction be in favor of the plaintifl; it will be unneces- sai-y to notice any other point. The release is as follows: "Loss and Damage. "Erie Railway Company, to John Martin, Salisbury Mills, Dr. "For settlement in full of all claims, de- mands and causes of action against the Erie Railway Company for loss and damage by fire, claimed to have been caused by sparks barn, shed and contents, fences, trees, etc, at Salisbury station, on or about May 13, 1873, $2,100. "This settlement is not intended to dis- charge the Connecticut Fire Insurance Com- pany from any claim which said Martin has against them for insurance, but as a full set- tlement with, and discharge of, the Erie Rail- way Company only. "Received, September 10, 1873, of the Erie Railway Company, through the hands of R. L. Brundage, claim agent, two thousand one hundred dollars, in full of the above amount. "$2,100. John Martin." It is proper to refer to the surrounding cir- cumstances. The buildings burned were woi-th about $3,400. Of the consideration paid for the release $300 was paid for a parcel of land' conveyed to the defendant, leaving $1,- 800 paid for the damage to the buildings. The clause that the settlement was not in- tended to discharge the plaintiff from any claim of the assured against it for insurance was in the nature of a proviso or exception from the general purview of the release. It must be construed so as to carry out the in- tent of the parties, and that intent must be determined from the language viewed in the light of surrounding circumstances. It is evident that the assured did not receive the full amount of the damages incurred. This circumstance sheds some light upon the mean- ing of the release. The clause was intended for some purpose, and it seems to me obvious that it was designed to prevent the plaintiff from interposing the release as a defense to an action on the policy, and it is inferable that the amount of the policy was deducted from the amount of the loss in the settlement with the defendaut. The substance of the transaction was that the assured, having a claim against the plaintiff for $1,500, settled with and released the defendant from liabil- ity for the balance, retaining the claim against the plaintiff. The form of the clause is not very specific, but looking at the sub- stance it was a proviso that the release should not opei'ate to prevent a recovery upon the policy against the plaintiff. With such a pro- viso, other portions of the release would have to yield to enable the proviso to have effect, and as to the plaintiff it would be the same as though no release had been given. It fol- lows that the plaintiff could not have inter- posed the release as a defense in an action by the assured upon the policy, and if not, the logical sequence is that the right of sub- rojiation imires against the defendant. It is insisted that as the assured has settled and released all his claim for damages, the plaintiff could acquire no right or remedy through him by equitable subrogation, or from him by assignment. This proposition implies an assumption of the controverted fact whether the assured did release all claim. INJURIES BY FIRE. 161 The answer to it is that the assured released only such damages as he could without in- terfering with his claim against the plaintiff, and the legal consequences must be regarded as a part of the exception, viz., the right of the plaintiff to a remedy over. This was as much reserved as the right to enforce the pol- icy. That vight could not be reserved with- out reserving the remedy. The power to en- force the policy having been expressly re- served, ; he parties could not take away the right of the plaintiff to the remedy which that reservation vested in him by law. Hav- ing made their agreement so as to prevent the plaintiff from interposing this defense, they cannot object to the consequences which legally flow from it. The exception neces- sarily embraces the right of subrogation. It is not needful to consider whether the effect BALD W. SBL. CAS. K. B. — 11 would- have been different if the assured had received the fuU amount of the loss. No in- justice is done the defendant by the result indicated. It was liable for the whole loss, and the payment to the plaintiff of the amount of the policy will, with that already paid, not exceed that amount. It did not profess to pay the assured but a part of that amount, nor did the assured intend to receive but a part, and the legal construction of the contract accords with the principles of right and justice. The action is properly brought in the name of the plaintiff. No other person has any right or interest in the claim. Code, § 111; Cummings v. Morris, 25 N. Y. 627. The judgment must be reversed and judg- ment ordered on verdict. All concur,- except MILLER, J., absent. Judgment accordingly. 162 LEGISLATIVE TOWEK OVER RAILROAB COMPANIES. Suit against State officer as such. Const. TJ. S., Amend. 11. .Wrongful execution of valid statute. Jurisdiction given to United States courts by State law. Bight to tolls. Railroad comnwssioners. Injunction. IJnreasonably low rates pre- scribed. Const. U. S., Amend. 14. Classification of freight. No profits earned. Kights of investors in railroads. 'Wasteful management. Partial reversal of .ludgment. REAGAN T. FARMERS' LOAN & TRUST GO. et al. (154 U. S. 362, 14 Sup. Ct. 1047.) Supreme Court of the United States. May 26, 1S94. No. 928. Appeal from the circuit court of the Unit- ed States for the western district of Texas. This was a suit hy the Farmers' Loan & Trust Company against John H, Reagan, W. P. McLean. L. L. Foster (railroad commis- sioners of the state of Texas), C. A. Culber- son (attorney general of the state), the In- ternational & Great Northern Railroad Com- pany, and Thomas N. Campbell (receiver of that company), brought to restrain said rail- road commissioners from enforcing certain rates and regulations prescribed by them for said company, and to restrain the attorney general from suing for penalties for failure to conform to such rates and obey such reg- ulations. The railroad company filed an an- swer and a cross bill similar to complain- ant's bill, and praying substantially the same relief. The railroad commissioners and the attorney general filed answers, but afterwards withdrew their answers, and filed demurrers. Their demurrers were over- ruled, and a decree for defendants was ren- dered, making a temporary injunction pre- viously granted (51 Fed. 529) perpetual. I'he railroad commissioners and the attor- ney general appealed. On April 3, 1891, the legislature of tjie state of Texas passed an act to establish a railroad commission. The first section pro- vides for the appointment and qualification of three persons to constitute the commis- sion; the second, for the organization of jthe commission; while the third defines the powers and duties of the commission, and Is as follows: "Sec. 3. The power and authority is hereby vested in the railroad commission of Texas and it is hereby made its duty, to adopt all necessary rates, charges, and regulations to govern and regulate railroad freight and pas- senger tariffs, the power to correct abuses and prevent unjust discrimination and ex- tortion in the rates of freight and passenger tariffs on the different railroads in this state, and to enforce the same by having the penal- ties inflicted as by this act prescribed through proper com-ts having jurisdiction. "(a) The said commission shall have pow- er, and it shall bfe its duty, to fairly and justly classify and subdivide all freight and property of whatsoever character that may be transported over the railroads of this state into such general and special classes or subdivisions as may be found necessary and expedient. "(b) The commission shall have power, and it shall be its duty, to fix to each class or sub- division o^ freight a reasonable rate for each railroad subject to this act for the trans- portation of each of said classes and subdi- visions. "(c) The classifications herein provided for shall apply to and be the same for all rail- roads subject to the provisions of this act. "(d) The said commission may fix different rates for different railroads and for different lines under the same management, or for different parts of the same lines if found nec- essary to do justice, and may make rates for express companies different from -the rates fixed for railroads. "(e) The said commission shall have power, and it shall be its duty, to fix and establish for all or any connecting lines of railroad in this state reasonable joint rates of freight charges for the various classes of freight and cars that may pass over two or more lines oZ such railroads. "(f) If any two or more connecting rail- roads shall fail to agree upon a fair and just division of the charges arising from the transportation of freights, passengers or cars over their lines, the commission shall fix the pro rata part of such charges to be received by each of said connecting lines. "(g) Until the commission shall make the classifications and schedules of rates as here- in provided for, and afterwards if they deem it advisable, they may make partial or special classifications for all or any of the railroads subject hereto, and fix the rates to be charged by such roads therefor; and such classifica- tions and rates shall be put into effect in the manner provided for general classifica- tions and schedules of rates. , "(h) The commission shall hate power, and it shall be its duty from time to time, to alter, change, amend, or abolish any classifi- cation or rate established by it when deemed necessary; and such amended, altered, or new classifications or rates shall be put into effect in the same manner as the originals. "(i) The commission may adopt and enforce such rules, regulations, and modes of pro- cedure as it may deem proper to hear and de- termine complaints that may be made against the classifications or the rates, the rules, reg- ulations, and determinations of the commis- sion. "(j) The commission shall make reasonable and just rates of charges for each railroad subject hereto for the use or transportation of loaded or empty cars on its road; and may establish for each railroad or for aU. rail- roads alike reasonable rates for the storing and handling of freight and for the use of cars not unloaded afl!er forty-eight hours' no- tice to the consignee, not to include Sun- days. LEGISLATIVE POWER OVER KAILROAD COMPAKIES. 163 "(k) The commission shall make and estab- lish reasonable rates for the transportation of passengers over each or aU of the railroads subject hereto, which rates shall not exceed the rates fixed by law. The commission shall liave power to prescribe reasonable rateg, tolls, or charges for all other services pei*- lormed by any railroad subject hereto." The first paragraph of the foui'th section is in these words: "Sec. 4. Before any rates shall be estab- lished under this act, the commission shall give the raili-oad company to be affected thereby ten days' notice of the time and place when and where the rates shall be fixed; and said railroad company shall be entitled to be heard at siich time and place, to the end that justice may be done; and it shall have process to enforce the attendance of its witnesses. All process herein provided for shall be served as in civil cases." The remaining paragraphs give power to adopt rules of procedure. The fifth, sixth, .and seventh sections are as follows: "Sec. 5. In all actions between private par- ties and railway companies brought under this law, the rates, charges, orders, rules, regulations, and classifications prescribed by said commission before the institution of such action shall be held conclusive, and deemed and accepted to be reasonable, fair, and just, and in such respects shall not be ■controverted therein until finally found oth- erwise in a direct action brought for that purpose in the manner prescribed by sec- tions 6 and 7 hereof. "Sec. 6. If any railroad company or other party at interest be dissatisfied with the de- cision of any rate, classification, rule, charge, ■order, act, or regulation adopted by the com- mission, such dissatisfied company or party may file a petition setting forth the particu- lar cause or causes of objection to such de- cision, act, rate, rule, charge, classification, or order, or to either or aU of them, in a court •of competent jurisdiction in Travis county, Texas, against said commission as defend- ant. Said action shall have precedence over all other causes on the docket of a different nature, and shall be tried and determined as ^ther civil causes in said court. Either party to said action may appeal to the appellate court having jurisdiction of said cause, and said appeal shall be at once returnable to said appellate court, at either of its term.'*, and said action so appealed shall have pre- cedence in said appellate court of all causes of a different character therein pending: pro- vided, that if the court be in session at the time such right of action accrues, the suit may be filed during such term and stand ready for trial after ten days' notice. "Sec. 7. In all trials under the foregoing section the burden of proof shall rest upon the plaintiff, who must show by clear and satisfactory evidence that the rates, regula- tions, orders, classifications, acts, or char- ges complained of are unreasonable and un- .just to it or them." Sections 8-13 contain special provisions which are not material to the consideration ' of any question presented in this case. Section 14 reads: "Sec. 14. If any railroad company subject to this act, or its agent or officer, shall here- after charge, collect, demand or receive from any person, company, firm or corporation a greater rate, charge, or compensation than that fixed and established by the railroad commission for the transportation of freight, passengers, or cars, or for tlie use of any car on the line of its railroad, or any line oper- ated by it, or for receiving, forwarding, handling, or storing any such freight or cars, or for any other service performed or to be performed by it, such railroad company and its said agent and officer shall be deemed guilty of extortion, and shall forfeit and pay to the state of Texas a sum not less than $100 nor more man $5,000." Section 15 defines "unjust discrimination," and imposes a penalty of not less than $500, nor more than $5,000, upon any railroad company violating any pi'ovision of the sec- tion. Section 16 is leveled against officers and agents of railroads, and imposes a penalty of not less than $100, nor more than $1,000, for certain offenses denounced therein. Section 17 declares that any railroad com- pany violating the provisions of the act shall be liable to the persons injured thereby for the damages sustained in consequence of such violation, and in case it is guilty of extortion or discrimination, as defined in the act, shall pay, in addition to such damages, to the person injured, a penalty of not less than $125, nor more than $500. In sections 18 and 19 are further provisions as to penalties. The remaining sections — 20 to 24, inclusive — contain matter of detail, which is unimportant in this case. Three of the plaintiffs in error, Reagan, Mc- Lean, and Foster, were duly appointed and qualified as members of said railroad com- mission, and organized it on the 10th day of June, 1891. The other plaintiff in error, Cul- berson, Is the attorney general of the state, who, by section 19 of the act, was charged with the duty of instituting suits in the name of the state for the recovery of all the pen- alties prescribed by the act, excepting those recoverable by individuals under the author- ity of section 17. After the commission had organized, on June 10th, it proceeded to establish certain rates for the transportation of goods over the railroads in the state, and also certain regulations for the management of such transportation. Thereafter, on April 30, 1892, the Farmers' Loan & Trust Company filed its bill in the circuit court of the United States for the western district of Texas, mak- ing as defendants the railroad commissioners, the attorney general, the International & Great Northern Railroad Company, and Thomas M. Campbell, the receiver thereof, duly appointed by the district comt of Smith 164 LEGISLATIVE POWER OVEU RAILROAD COMPANIES. county, Texl That bill, which is too long to be copied in full, alleged that the plaintiff was the trustee in a ti-ust deed executed by the railroad company on the 15th day of June, 1881, to secure a second series of bonds, aggregating $7,054,000, bearing interest at the rate of 6 per cent, per annum, and that there was a prior issue of bonds, to the amount of $7,954,000, sectu'ed by a convey- ance to John S. Kennedy and Samuel Sloan, as trustees. It then set forth the railroad commission act, heretofore referred to, or so much thereof as was deemed material, the proceedings of the commission, and the no- tices that were given to the railroad com- pany, and attached as exhibits the several or- ders prescribing rates and regulations. It also averred generally that such rates were unreasonable and unjust, set forth certain specific facts which it claimed established the injustice and unreasonableness of those rates, and prayed a decree restraining the commission from enforcing those rates, or any other rates, and also restraining the at- torney general from Instituting any suits to recover penalties for failing to conform to such rates and obey such regulations. The International & Great Northern Railroad Company appeared, filed an answer, and also a cross bill similar in its scope and effect to the bill filed by the plaintiff, and praying substantially the same relief. The i-ailroad commission and the attorney general at first filed answers, but, after a certain amount of testimony had been taken (of the nature and extent of which we are not advised, in- asmuch as It is not preserved in the record), they withdrew their answers, and filed de- murrers, leave being given at the same time to the complainant and cross complainant to amend the bill and cross bill before the filing of the demurrer. The amendments to the bill and cross bill were similar, and contain- ed allegations more in detail of the losses in revenue sustained by the company through the enforcement of the tariffs, and the aver- age reduction caused by such tariffs in the rate theretofore existing, and also setting forth certain contract rights under an act of the legislature of the state of Texas passed on Febuary 7, 1853. Thereafter the cause was submitted to the court on the bills and cross bills and demurrers, and on March 23, 1893, a decree was entered in favor of the plaintiff, as follows: "This cause having been set down for final hearing on the pleadings and evidence, and being called for hearing thereon, the defend- ants John H. Reagan, William P. McLean, L. L. Foster, and Charles A. Culberson presented their motion, on file herein, for leave to with- draw their answers and file demurrers, which motion was granted, conditioned upon the said defendants paying all costs of taking depositions and evidence, herein against them to be taxed, and for which execution may issue, and on condition, that the complainant and cross complainant have leave to amend before the filing of the demurrers of the said defendants, which leave was granted; and whereupon said amendments were filed, and the demm-rers of the said defendants were filed to the original bill of complaint and cross bill in this cause, as also to all amend- ments thereto, and were by complainant and cross complainant set down for argument, by consent, and were by all parties forthwith submitted. And thereupon, in consideration thereof, it was ordered, adjudged, aiid de- creed that said demurrers be, and the same are hereby, overruled. And the defendants. John H. Reagan, William P. McLean, L. L. Foster, and Charles A. Culberson having en- tered of record their refusal to make fm'ther answer, and the fact that they stood upon their demurrers, and all parties submitting the cause for final decree, it is now, upon con- sideration thereof, ordered, adjudged, and decreed that the bill of complaint, as amend- ed, and the cross bill of complaint, as amended, in the above-entitled cause, be, and the same are hereby, sustained, and taken for confessed. And the said cause coming on further to be heard upon the bill of com- plaint herein, as amended, and upon the an- swer of the defendant railroad company thereto, confessing the same, it is further or- dered, adjudged, and decreed as follows, to wit: "First. That the injunctions heretofore is- sued in this cause be, and the same are here- by, made perpetual, and accordingly. "Second. That defendant, the International & Great Northern Railroad Company be, and it is hereby, perpetually enjoined, restrained, and prohibited from putting or continuing in effect the rates, tariffs, circulars, or orders of the railroad commission of Texas, or either or any of them, as described in the bill of complaint herein, and in Exhibit C, thereto and therewith filed, and from charging, or continuing to charge, the rates specified in said tariffs, circulars, or orders, or either or any of them. "Third. It is further ordered, adjudged, and decreed that the defendants the railroad commission of Texas and the defendants John H. Reagan, William P. McLean, and L. L. Foster, acting as the railroad commis- sion of Texas, and their successors in office, and the defendant Charles A. Culberson, act- ing as attorney general of the state of Texas, and his successors in office, be, and they are hereby, perpetually enjoined, restrained, and prohibited from instituting or authorizing or directing any suit or suits, action or actions, against the defendant railroad company for the recovery of any penalties under and by virtue of the provisions of the act of the leg- islature of the state of Texas approved April 3, 1891, and fully described in the bill of complaint, or under or by virtue of any of the said tariffs, orders, or circulars of the said railroad commission of Texas, or any or either of them, or under or by virtue of the said act and the said tariffs, orders, or cir- culars of said railroad commission, or any or either of them combined; and said defend- LEGISLATIVE POWEU OVER RAILBOAD COMPANIES. 16S ants Reagan, McLean, and Foster, and the rayroad commission of Texas, are fm'ther per- petually restrained from certifying any copy or copies of any of said orders, tariffs, or circulars, or from delivering, or causing or permitting to be delivered, certified copies of any of said orders, tariffs, or circulars to the said Culberson, or any other party, and from furnishing the said Culberson, or any other party, any information, of any chai-acter, for the pm-pose of inducing, enabling, or aiding him, or any other party, to institute or pros- ecute any suit or suits against the said de- fendant railroau company for the recovery of any penalty or penalties under the said act. "Fourth. It is further ordered, adjudged, and decreed that the said railroad commis- sion of Texas and the said Reagan, McLean, and Foster be perpetually enjoined, restrain- ed, and prohibited from making, issuing, or delivering to the said railroad company, or causing to be made. Issued, or delivered to it, any further tariff or tariffs, circular or cir- culars, order or orders. "Fifth. It is fm'ther ordered, adjudged, and decreed that all other individuals, persons, or corporations be, and they are hereby, per- petually enjoined, restrained, and prohibited from Instituting or prosecuting any suit or suits against the said railroad company for the recovery of any damages, overcharges, penalty, or penalties, under or by virtue of the said act or any of its provisions, or under and by virtue of the said tariffs, orders, or circulars of the said railroad commission of Texas, or any or either of them, or under and by vii-tue of the said act and the said tariffs, orders, and circulars, or any or either of them combined. "Sixth. It is fiu-ther ordered, adjudged, and decreed that all rates, tariffs, circulars, and orders heretofore made and issued by said commission, and fully described in Exhibit C to the bill of complaint herein, be, and they are hereby, declared to be unreason- able, i:nfair, and unjust as to complainant and cross complainant, and they are hereby canceled, and declared to be null, void, and of no effect. "Seventh. It is further ordered, adjudged, and decreed that all costs herein be taxed against said defendants Reagan, McLean, Culberson, and Foster, and the railroad com- mission of Texas, and that execution may is- sue therefor." « From that decree the railroad commission and the attorney general have appealed to this court. C. A. Culberson, Atty. Gen., Henry C. Coke, and W. S. Simkins, for appellants. John F. Dillon, E. B. Kruttschnitt, Henry B. Turner, John J. McCook, Winslow S. Pierce, Geo. R. Peck, and J. W. Terry, for appellees. Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. The questions in this case are of great im- portance, and have been most ably and satis- factorily discussed by counsel for the re- spective parties. We are met at the threshold with an ob- jection that this is, in effect, a suit agains*. the state of Texas, brought by a citizen of another state, and therefore, under the elev- enth amendment to the constitution, beyond the jm-isdiction of the federal court. The question as to when an action against officers of a state is to be treated as an action against the state has been, of late, several times carefully considered by this court, especially in the cases of In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164, by Mr. Justice Matthews, and Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699, by Mr. Justice Lamar. In the former of these cases it was said (page 505, 123 U. S., and page 164, 8 Sup. Ct): "To secure the manifest purposes of the constitutional exemption guarantied by the eleventh amendment requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and large- ness as effectually to accomplish the sub- stance of its pm-pose. In this spirit, it must be held to cover, not only suits brought against a state by name, but those, also, against its officers, agents, and representa- tives, where the state, though not named as such, is nevertheless the only real party against which alone, in fact, the relief is asked, and against which the judgment or decree effectively operates." And in the latter (page 9, 140 U. S., and page 699, 11 Sup. Ct.) : "It is well settled that no action can be maintained in any federal court by the citi- zens of one of the states against a state, without its consent, even though the sole object of such suit be to bring the state with- in the operation of the constitutional provi- sion which provides that 'no state shall pass any law Impairing the obligation of con- tracts.' This immunity of a state from sui. is absolute and unqualified, and the consti- tutional provision securing it is not to be so construed as to place the state within the reach of the process of the court According- ly, it is equally weU settled that a suit against the olficers of a state, to compel them to do the acts which constitute a performance by it of its contracts, is, in effect, a suit against the state itself. "In the appUcation of this latter principle, two classes of ca^es have appeared in the de- cisions of this court, and it is in determin- ing to which class a particular case belongs that differing views have been presented. "The first class is where the suit is brought against the officers of the state, as represent- ing the state's action and liability, and thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts. In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164; Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. 128; Antoni v. 166 LEGISLATIVE POWEU OVEK RAILROAD COMPANIES. Greenhow, 107 U. S. 769, 2 Sup. Ct 91; Cunningliam v. Railroad Co., 109 U. S. 446, 3 Sup. Gt. 292, 609; Hagood v. Southern, 117 U. S. 52, 6 Sup. Ct. 608. "The other class is where a suit is brought against defendants who, claiming to act as ofHcers of the state, and under the color of an unconstitutional statute, commit acts of wrong and injury to th€ rights and property of the plaintiff acquired under a contract With the state. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by theih in behalf of the state, or for compensa- tion in damages, or, in a proper case where the remedy at law is inadequate, for an in- junction to prevent such wrong and injui*y, or for a mandamus, in a lilie case, to enforce upon the defendant the performance of a plain, legal duty, purely ministerial, is not, within the meaning of the eleventh amend- ment, an action against the state. Osborn V. Bank, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Tomlinson v. Branch, 15 Wall. 460; Litchfield v. Webster Co., 101 U. S. 773; Allen V. Railroad Co., 114 U. S. 311, 5 Sup. Ct. 925, 962; Board v. McComb, 92 U. S. 531; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct 903, 962." Appellants invoke the doctrines laid down in these two quotations, and insist that this action cannot be maintained because the real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates, is the state, and also because the statute under which the de- fendants acted, and proposed to act, is consti- tutional, and that the action of the state of- ficers under a constitutional statute is not subject to challenge in the federal court. We are unable to yield our assent to this ar- gument So far from the state being the only real party in interest, and upon whom alone the judgment effectively operates, it has, in a pecuniary sense, no interest at all. Going back of all matters of form, the only parties pecuniarily affected are the shippers and the carriers; and the only direct pe- cuniary interest which the state can have arises when it abandons its governmental character, and, as an individual, employs the railroad company to carry its property. There is a sense, doubtless, in which it may be said that the state is interested in the question, but only a governmental sense. It is Interested in the well-being of its citizens, in the just and equal enforcement of all its laws; but such governmental interest is not the pecuniary interest which causes it to bear the burden of an adverse judgment. Not a dollar will be taken from the treasury of the state, no pecuniary obligation of it will be enforced, none of its property affected by any decree which may be rendered. It is not nearly so much affected by the decree in this case as it would be by an injunction against officers, staying the collection of taxes; and yet a frequent and unquestioned exercise of jurisdiction of courts, state and federal, is In restraining the collection . of taxes, illegal in whole or in part. Neither will the constitutionality of the statute, if that be conceded, avail to oust the federal court of jurisdiction. A valid law may be wrongfully administered by officers of the state, and so as to make such admin- istration an illegal bturden and exaction upon the individual. A tax law, as it leaves the legislative hands, may not be obnoxious to any challenge; and yet the officers charged with the administration of that valid tax law may so act under it, in the matter of assess- ment or collection, as to work an illegal tres- pass upon the property rights of the individ- ual. They may go beyond the powers there- by conferred, and when they do so the fact that they are assuming to act under a valid law will not oust the courts of jurisdiction to restrain their excessive and Illegal acts. In Cunningham v. Railroad Co., 109 U. S. 446, 452, 3 Sup. Ct. 292, 609, it was said: "Another class of cases is where an indi- vidual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted un- der the orders of the government. "In these cases he is not sued as, or be- cause he is, the officer of the government, but as an indivUdual, and the court is not ousted of jurisdiction because he asserts au- thority as such officer. To make out his de- fense, he must show that his authority was sufficient In law to protect him. See Mitch- ell V. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204; Meigs v. McClung, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet 498; Brown V. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall. 364." Nor can it be said, in such a case, that re- lief is obtainable only in the coiu-ts of the state; for it may be laid down, as a general proposition, that, whenever a citizen of a state can go into the courts of the state to defend his property against the illegal acts of its omcers, a citizen of another state may invoke the jurisdiction of the federal courts- to maintain a like defense. A state cannot tie up a citizen of another state, having prop- erty rights within Its territory invaded by unauthorized acts of Its own officers, to suits for redress in its own courts. Given a case where a suit can be maintained In the courts of the state to protect property rights, a citizen of another state may invoke the juris- diction of the federal courts. Cowles v. Mercer Co., 7 Wall. 118; Lincoln Co. v. Luning, 133 U. S. 529, 10 Sup. Ct. 363; Chi- cot Co. V. Sherwood, 148 U. S. 529, 13 Sup. Ct 695. We need not, however, rest on the general powers of a federal court in this respect; for, in the act before us, expre;ss authority is given for a suit against the commission to accomplish that which was the specific ob- ject of the present suit Section 6 provides that any dissatisfied "railroad company, or LEGISLATIVE POWER OVER EAILROAD COMPANIES. 167 other party at interest, rcay file a petition" "in a court of competent jurisdiction in Trav- is county, Texas, against said commission as defendant." The language of this provision is significant. It does not name the covu-t in which the suit may be brought. It is not a court of Travis county, but in Travis county. The language, differing from that which ordi- narily would be used to describe a court of the state, was selected, apparently, in order to avoid the objection of an attempt to prevent the juiMsdiction of the federal com-ts. The circuit court for the western district of Texas is "a court of competent jurisdiction in Travis county." Not only is Travis county within the territorial limits of its jurisdiction, but also Austin, in that county, is one of the places at which the court is held. 23 Stat. 3.5. It comes, there- fore, within the very terms of the act. It cannot be doubted that a state, like any other government, can waive exemption from suit. Were this, in terms, a suit against the .state, if by express statute the state had waived its exemption, and consented that suit might be brought against it. by name, in any court of competent jurisdiction in Travis county, It might well be argued that thereby it con- sented to a suit brought by a citizen of an- other state in the circuit court of the United States for the western district of Texa,s, sit- ting in Ti-avis county, on the ground that the limitations of the eleventh amendment to the federal constitution simply create a personal privilege, which can at any time be waived by the state. However, it is unnecessary to go so far as that, for this cannot, for the rea- sons heretofore indicated, in any fair sense, be considered a ,suit against the state. Still another matter is worthy of note in this direction. In the famous Dartmouth College Case, 4 Wheat 518, it was held that the charter of a corporation is a contract pro- tected by that clause of the national con- stitution, which prohibits a state from pass- ing any law impairing the obligation of con- tracts. The International & Great Northern Railroad Company is a corporation created by the state of Texas. The charter which created it is a contract whose obligations neither party can repudiate without the con- sent of the other. All that is within the scope of this contract need not be determined. Obviously, one obligation assumed by the corporation was to construct and operate a railroad between the termini named; and, on the other hand, one obligation assumed by the state was that it would not prevent the company from so constnieting and operating the road. If the charter had, in terms, granted to the corporation power to charge and collect a definite sum per mile for the transportation of persons or of prop- erty, it would not be doubted that that ex- press stipulation formed a part of the obli- gation of the state, which it could not repudi- ate. Whether, in the absence of an express stipulation of that character, there is not implied, in the grant of the right to construct and operate, the grant of a right to charge and collect such tolls as will enable the com- pany to .successfully operate the road, and return some profit to those who have in- vested their money in the construction, is a question not as yet determined. It is at least a question which arises as to the extent to which that contract goes, and one in which the corporation has a right to invoke the judgment of the courts; and if the corpora- tion (a citizen of the state) has the right to maintain a suit for the determination of that question, clearly a citizen of another state, who has, under authority of the laws of the state of Texas, become pecuniarily interested in— equitably, indeed, the beneficial owner of the property of — the corporation, may invoke the judgment of the federal courts as to whether the contract rights created by the charter, and of which it is thus the beneficial owner, are violated by subsequent acts of the state in limitation of the right to collect tolls. Our conclusion from these considera- tions is that the objection to the jurisdiction of the circuit court is not tenable; and this whether we rest upon the provisions of the sta,tute, or upon the general jurisdiction of the court existing by virtue of the statutes of congress, under the sanction of the consti- tution of the United States. Passing from the question of jurisdiction to the act itself, there can be no doubt of the general power of a state to regulate the fares and freights which may be charged and re- ceived by railroad or other carriers, and that this regulation can be carried on by means of a commission. Such a commission is merely an administrative board created by the state for carrying into effect the will of the state, as expressed by its legislation. Railroad Commission Cases, IIG U. S. 307, 6 Sup. Ct 334. No valid objection, there- fore, can be made on account of the general ■features of this act, — those by which the state has created the railroad commission, and intrusted it with the duty of prescribing rates of fares and freights, as well as other regulations for the management of the rail- roads of the state. ' Specific objections are made to the act on the ground that, by section 5, the rates and regulations made by the commission are declared conclusive in all actions between private individuals and the companies, and that, by section 14, excessive penalties are imposed upon raihoad corporations for any violation of the provisions of the act; and thus, as claimed, there is not only a limita- tion, but a practical denial, to railroad com- panies, of the right of a judicial inquiry into the reasonableness of the rates prescribed by the commission. The argument is, in sub- stance, that railroad companies are bound to submit to the rates prescribed until, in a di- rect proceeding, there has been a final adju- dication that the rates are unreasonable, which final adjudication, in the nature of things, cannot be reached for a length of time; that meanwhile a failure to obey those 168 LEGISLATIVE POWER OVER RAILROAD COMPANIES. regulations exposes the company, for each, separate fare or freight exacted in excess of the prescribed rates, to a penalty so enormous a,s in a few days to roU up a sum far aboye the entire value of the property; that even if, in a direct proceeding, the rates should be adjudged unreasonable, there is nothing to prevent the commission from re-establishing rates but slightly changed, and still unrea- sonable, to set aside which requires a new suit, with its length of delay; and thus, as is claimed, the raili-oad companies are tied haui; and foot, and bound to submit to whatever illegal, unreasonable, and oppressive regula- tions may be prescribed by the commission. It is enough to say, in respect to these mat- ters, — at least, so far as this case is con- cerned, — that it is not to be supposed that the legislature of any state, or a commission appointed under the authority of any state, will ever engage in a deliberate attempt to cripple or destroy Institutions of such great value to the community as the railroads, but will always act with the sincere purpose of doing justice to the owners of railroad prop- erty, as well as to other individuals, and also that no legislation of a state, as to the mode of proceeding in its own courts, can abridge or modify the powers existing in the federal courts, sitting as courts of equity; so that if, in any case, there should be any mistaken action on the part of a state, or its commis- sion, injurious to the rights of a railroad cor- poration, any citizen of another state, inter- ested directly therein, can find in the federal court aU the relief which a court of equity Is justified in giving. We do not deem it necessary to pass upon these specific objec- tions, because the fourteenth section, or any other section prescribing penalties, may be dropped from the statute without affecting the validity of the remaining portions, and, if the rates established by the commission are not conclusive, they are at least prima facie evidence of what is reasonable and just. For the purpose of this case, it may be con- ceded that both the clauses are unconstitu- tional, and still the great body of the act re- mains unchallenged,— that which establishes the commission, and empowers it to malie reasonable rates and regulations for the con- trol of railroads. It is familiar law that one section or part of an act may be invalid with- out affecting the validity of the remaining portion of the statute. Any independent provision may be thus dropped out, if that which is left is fuUy operative as a law, un- less it is evident, from a consideration of all the sections, that the legislatui-e would not have enacted that which is within, indepen- dently of that beyond, its power. Applying this rule, and the invalidity of these two provisions may be conceded without impair- ing the force of the rest of the act. The creation of a commission, with power to es- tablish rules for the operation of railroads, and to regulate rates, was the prime object of the legislation. This is fully accomplished, whether any penalties are imposed for a violation of the rules prescribed, or whether the rates shall be conclusive, or simply prima facie, evidence of what is just and reasona- ble. The matters of penalty, and the effect, as evidence, of the rates, are wholly Inde- pendent of the rest of the statute. Neither can it be supposed that the legislature would not have established the commission, and given it power over railroads, without these independent matters. In other words, it is not to be presumed that the legislature was legislating for the mere salie of imposing penalties, but the penalties, and the provision as to evidence, were simply in aid of the main purpose of the statute. They may fail, and still the great body of the statute have operative force, and the force contemijlated by the legislature in its enactment. Take a similar body of legislation,— a tax law. There may be incorporated into such a law a pro- vision giving conclusive effect to tax deeds, and also a provision as to the penalties in- curred by nonpayment of taxes. These two provisions may, for one reason or another, be obnoxious to constitutional objections. If so, they may be dropped out, and the balance of the statute exist. It would not for a moment be presumed that the whole tax sys- tem of the state depended for its validity upon the penalties for nonpayment of taxes, or the effect to be given to the tax deed. We, therefore, for the purposes of this case, as- sume that these two provisions of the stat- ute are open to the constitutional objections made against them. We do not mean by this to imply that they are so in fact, but simply that it is unnecessary to consider and determine the matter, and we leave it open for future consideration. It appears from the bill that, in pursuance of the powers given to it by this act, the state commission has made a body of rates for fares and freights. This body of rates, as a whole, is challenged by the plaintiff as unrea- sonable, unjust, and worliing a destruction of its rights of property. The defendant de- nies the power of the court to entertain an inquiry into that matter; insisting that the fixing of rates for carriage by a public car- rier is a matter wholly within the power of the legislative department of the government, and beyond examination by the courts. It is doubtless true, as a general proposi- tion, that the formation of a tariff of charges for the transportation by a common carrier of persons or property is a Jegislative or ad- ministrative, rather than a judicial, function. Yet it has always been recognized that, If a carrier attempted to charge a shipper an un- reasonable sum, the courts had jurisdiction to inquire into that matter, and to award to the shipper any amount exacted from him in excess of a reasonable rate, and also, in a re- verse case, to render judgment in favor of the carrier for the amount found to be a rea- sonable charge. The province of the courts is not changed, nor the limit of judicial in- quiry altered, because the legislature, in- stead of the carrier, prescribes the rates. LEGISLATIVE POWER OVEK RAILROAD COMPANIES. 169 Ttui courts are not authorized to revise or change the body of rates imposed by a legis-. lature or a commission. They do not deter- mine whether one rate is preferable to an- otlier, or what, under all circumstances, would be fair and reasonable, as between the carriers and the shippers. They do not en- gage in any mere administrative work. But «till there can be no doubt of their power and duty to inquire whether a body of rates pre- scribed by a legislature or a commission is iinjust and unreasonable, and such as to work a practical destruction to rights of property, and, if found so to be, to restrain its operation. In Chicago, B. & Q. R. Go. v. Iowa, 94 U. S. 155, and Peik v. Railway Co., Id. 164, tlie question of legislative control over railroads was presented; and it was Iield that the fixing of rates was not a matter within the absolute discretion of the carriers, I)ut was subject to legislative control. As stated by Mr. Justice Miller in V/abash, St. L. & P. Ry. Co. V. Illinois, 118 U. S. 557, 569, 7 Sup. Ct. 4, in respect to those cases: "The great question to be decided, and which was decided, and which was argued in all those cases, was the right of the state within which a railroad company did busi- ness to regulate or limit the amount of any of these traffic charges." There was in those cases no decision as to the extent of control, but only as to the right •of control. This question came again before this coui't in Raih-oad Commission Cases, 116 xr. S. 307, 331, 6 Sup. Ct. 334, 348; and, while the right of control was reaffirmed, a limita- tion on that right was plainly intimated in the following words of the chief justice: "From what has thus been said, it is not to "be inferred that this power of limitation or regulation is Itself without limit. This pow- «r to regulate is not a power to destroy, and limitation is not the equivalent of confisca- tion. Under pretense of regulating fares and freights, the state cannot require a railroad corporation to cany persons or property without reward. Neither can it do that which in law amounts to a taking of private prop- erty for public use without just compensa- tion, or without due process of law." This language was quoted in the subse- •quent case of Dow v. Beidelman, 125 U. S. ■680, 689, 8 Sup. Ct. 1028. Again, in Chicago, M. & St P. Ry. Co. v. Minnesota, 134 V. S. 418, 458, 10 Sup. Ct. 462, 702, it was said by Mr. Justice Blatchford, speaking for the ma- lority of the court: "The question of the reasonableness of a rate of charge for transportation by a rail- road company, involving, as it does, the ele- ment of reasonableness, both as regards the •company and as regards the public, is emi- mently a question for judicial investigation, requiring the process of law for its deter- mination." And in Chicago & G. T. Ry. Co. v. Well- man, 143 U. S. 339, 344, 12 Sup. Ct. 400, is this declaration of the law: "The legislatui'e has power to fix rates, and the extent of judicial interference is protec- tion against unreasonable rates." * Budd V. New York, 143 U. S. 517; 12 Sup. Ct. 468, announces nothing to the contrary. The question there was not whether the rates were reasonable, but whether the business— that of elevating grain — was within legisla- tive control as to the matter of rates. It was said in the opinion: "In the oases before us the records do not show that the charges fixed by the statute are unreasonable." Hence, there was no occasion for saying any- thing as to the power or duty of the courts in case the rates, as established, had been found to be unreasonable. It was enough that, up- on examination, it appeared that there was no evidence upon which it could be adjudged that the rates were in fact open to objection an that ground. These cases all support the proposition that, while it is not the province of the courts to enter upon the merely administrative duty of framing a tariff of rates for carriage, it is within the scope of judicial power, and a part of judicial duty, to restrain anything which, in the form of a regulation of rates, operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property. There is nothing new or strange in this. It has al- ways been a part of the judicial function to determine whether the act of one .party (whether that party be a single individual, an organized body, or the public as a whole) operates to divest the other party of any rights of person or property. In every con- stitution is the guaranty against the taking of private property for public purposes with- out just compensation. The equal protec- tion of the laws, which, by the fourteenth amendment, no state can deny to the Individ- ual, forbids legislation, in whatever form it may be enacted, by which the property of one individual is, without compensation, wrested from him for the benefit of another, or of the public. This, as has been often observed, is a government of law, and not a government of men; and it must never be forgotten that under such a government, with its constitutional limitations and guar- anties, the forms of law and the machinery of government, with all their reach and pow- er, must, in their actual workings, stop on the hither side of the unnecessary and un- compensated taking or destruction of any private . property, legally acquired and legal ly held. It was therefore within the compe- tency of the circuit court of the United States for the western district of Texas, at the instance of the plaintiff, a citizen of another state, to enter upon an inquiry as to the reasonableness and justice of the rates prescribed by the railroad commission. In- deed, it was, in so doing, only exercising a power expressly named in the act creating the commission. ^ A classification was made by tlie commis- sion, and different rates established for dif- 170 LEGISLATIVE POWER OVER KAILKOAD COMPANIES. ferent kinds of goods. These rates were pre- scribed t>y successive cii'culars. Classification of rates is based on several considerations, such as bulk, value, facility of handling, etc. It is recognized in the management of all railroads, and no complaint is here made of the fact of classification, or the v?ay in which it was made by the commission. By these circulars, rates all along the line of classification were reduced from those there- tofore charged on the road. The challenge in this case is of the tariff as a whole, and not of any particular rate upon any single class of goods. As we have seen. It is not the function of the courts to establish a sched- ule of rates. It is not, therefore, within our power to prepare a new schedule, or rear- ■ range this. Our inquiry is limited to the ef- fect of the tariff as a whole, including there- in the rates prescribed for all the several classes of goods, and the decree must either condemn or sustain this act of quasi legisla- tion. If a law be adjudged invalid, the court may not, in the decree, attempt to enact a law upon the same subject which shall be obnoxious to no legal objections. It stops with simply passing its judgment on the val- idity of the act before it The same rule obtains in a case Uke this. We pass then to the remaining question. Were the rates, as prescribed by the commis- cion, unjust and unreasonable? The bill, it will be remembered, was filed by a second mortgagee. The railroad company was made a defendant, and filed a cross bill. Each of these bills contains a general averment that the rates are unjust and unreasonable. That in the original bill, which was filed April 30, 1892, or some six or seven months after the action of the commission, is in these words: "Eighth. That the classifications and sched- ules of rates and charges so announced and promulgated in and by said commodity tariffs and circulars of said commission, or sought so to be, as hereinbefore shown, are unfair, unjust, and unreasonable, and that the same cannot be adopted or put or continued in effect by the defendant company or defend- ant receiver without serious and irreparable loss to it, and serious and irreparable injury to, and destruction of, the property, rights, and interests of your orator and the benefi- ciaries of its trust, as hereinafter more fully set forth; that the rates so charged and an- nounced by said commission are not compen- satory, and are uni-easonably low, ajid that the adoption and enforcement thereof would result, as nearly as can be estimated, in a diminution of revenues derived from the operation of said International & Great Northern Railroad, aggregating more than $200,000 per annum; and that the revenues from said railroad, so reduced and diminish- ed, would be Inadequate and insufficient to provide for the payment of the interest up- on the prior obligations of the defendant railroad company, recited in paragraph 4 hereof, and the interest upon the second mortgage bonds secured by said mortgage to your orator as tmstee, after providing for the expenses of operating said lines of rail- road and property, and maintaining the same in proper order and good working condition, so that the trafiie and business of said road, and of every part thereof, shall at aU times- be conducted with safety to person and prop- erty, and with due expedition." It may not be just to take this as an alle- gation of a mere matter of fact, the truthful- ness of which is admitted by the demurrer, and which, as thus admitted, eliminates from consideration all questions as ^to the true character and effect of the rates. Yet it is not to be ignored. There are often, in plead- ings, general allegations of mixed law and fact, sucli as of the ownership of property and the like, which, standing alone, are held to be sufficient to sustain judgments and de- crees, and yet are always regarded as quali- fied, limited, or even controlled, by particular facts stated therein. It would not, of course, be tolerable for a court administering equity to seize upon a technicality for the purpose, or with the result, of entrapping either of the parties before it. Hence, we should hesi- tate to take the filing of the demurrers tO' these bills as a direct and explicit admissioi on the part of the defendants that the rates established by the commision are unjust and unreasonable. Yet it must be noticed that a' first answers were filed, tendering issue upon the matters of fact, and testimony was tak- en, the extent of which, however, is not dis- closed by the record. After that the defend- ants applied for leave to withdraw their an- swers, and file demurrers. It is not to be- supposed that this was done thoughtlessly. But one conclusion can be drawn from that action, and that is that, upon the taking of their testimony, defendants became satisfied that the particular facts were as stated in the bills, and that the conclusions to be drawn from such facts could not be over- thrown by any other matters. Hence, if it appears that the facts stated In detail tend to prove that the rates are unreasonable and unjust, we must assume, as against the de- muiTerg, that the general allegation hereto- fore quoted is true, and that there are no other and different facts, which, if proved, might induce a different conclusion, and com- pel a different result. What, then, are the special facts disclosed in the several bills? It appears that there- is a bonded indebtedness of over $15,000,000, and, in addition, capital stock to the amount of $9,755,000; that the bonds and stock were- issued for, and represent, value; and that the rates theretofore existing on the road were not sufficient to enable the company to- pay all the interest on the bonds. At the time suit was commenced the first mortgage bonds outstanding amounted to $7,054,000, drawing 6 per cent, interest; the second mortgage bonds, to $7,954,000, drawing alsO' 6 per cent, interest The stockholders had never received any dividends whatever upon LEGISLATIVE POWER OVER EAILROAD COMPANIES. 171 their investment, but, on the contrary (as ap- pears from the cross bill filed subsequently to the commencement of the suit), they had been forced to pay a cash assessment of over a million of dollars, or about 12 per cent, of the face value of the stock, for the purpose of providing in part for the interest upon the first mortgage bonds. The holders of those bonds had been compelled to accept, and had accepted, in payment of one-half of the ac- crued and defaulted interest, — a sum exceed- ing $750,000,— deferred certificates of indebt- edness bearing interest at the rate of 5 per cent. The holders of the second mortgage bonds had been called upon to fund, and substantially all had consented to fimd, past- due interest, amounting to upwards of $1,- 250,000, in third mortgage bonds, bearing 4 per cent interest; and they had also been re- quired to i-educe, and substantially all had agreed to reduce, the interest on their bonds to 4% per cent, per annum for the period of six years, and thereafter to 5 per cent, per annum. For about three years the road had been in the hands of a receiver appointed on nccount of the default of the company in the payment of its obligations. A statement in detail was incorporated in the bill, of the earnings and operating expenses of the road during the years 1889 and 1890, and the first nine months of 1891, which was supplement- ed by a like statement in the cross bill subse- quently filed of the earnings and expenses for the entire year 1891 and the first three months of 1892. These statements show the following figm-es: 1889: Earnings $3,488,185 14 Operating expenses, exclu- sive of taxes 2,629,452 90 Surplus 858,732 24 1890: Earnings 3,646,422 33 Operating expenses, exclu- sive of taxes 3,148,245 09 Surplus 498,177 24 1891: Earnings 3,648,641 79 Operating expenses, exclu- sive of taxes 3,093.550 20 Surplus 555,091 59 Three months of 1892: Earnings 759,176 18 Operating expenses, exclu- sive of taxes 829,074 87 Deficit 69,898 69 The bill also contains a tabular statement of the revenue per ton per mile derived from the operation of the road during the years 1883 to 1893, inclusive, as follows: Revenue per ton per mile for 1883 (in cents) 2.03 1884. 1885. 1.90 1.71 1886. 1.65 1887. 1.38 1888. 1.33 1889. 1.44 1890. 1.38 1891 1 arst nine) monthfl / 1.30 The mUeage owned and operated by the company within the state of Texas amounts to 825 miles. There had been necessarily ex- pended, in cash, in the construction and equipment of its road, more than $50,000 per mile, and it could not be replaced for less than $30,000 per mile. There Is also this allegation in the cross bill: "That the lines of railway of your orator's company have at all times been operated as economically as practicable, and that its operating expenses have at all times been as reasonable and low in amount as they could be made by economical and judicious management, and that it has not been pos- sible for your orator to operate said road for less than it has been operated; that for the year ending June 30, 1892, there were employed by your orator's company sev- enteen general officers, who received during said year an average daily compensation of $12.64, and, exclusive of its general officers, all of its employes, during and for the year ending June 30, 1892, received an average daily compensation of $2.01, and that at all times your orator has secured the service of its officers and employes as cheaply as prac- ticable, and has employed no more than nec- essary, and that the above were fair and reasonable rates of pay; that at all times the- International & Great Northern Railroad Company has secured aU supplies, material,, and property, of whatever character, for the operation of its road, at the cheapest mar- ket price, and at as low rates as the same could be secured, and has secured and used no more than actually necessary in the oper- ation of the road." In the amendment to the cross biU, filed in March, 1893, is given a table showing the actual reductions in amounts received by the railroad company for the transportation of the different classes of goods under the oper- ation of the new tariffs up to August 31, 1892, and amounting to $159,694.-51, and alsa a table showing the per cent, of reductions as to different articles, varying from 5 per cent., on cement, to 54.90 per cent., on grain in car loads. The bill also, in general terms, negatives the probability of any increase in amount of business to compensate for the reduction in rates, a negation sustained by the figures given in the amended bill as to- the actual effect upon the receipts. It also contains a general averment that the rates on interstate business would be inim"iously affected to an equal amount by reason of -the reduction of rates on business within the state. As against these facts the attorney general presses these matters: In the table in the bill heretofore referred to, showing earnings and expenses during the years 1889 and 1890, and the first nine months of 1891, there is this item, several times repeated, "Bal- ance of income account;" and this on Sep- tember 30, 1891, is stated at $3,795,785.68. Of what this account is composed, we are not informed. Possibly, there was included within it the proceeds of the land grant, which, as we are told, was made by the state to the corporation. But, whatever it in- cludes, it was on January 1, 1889, as stated, $2,612,118.68, which would make the increase 172 LEGISLATIVE POWER OVER RAILROAD COMPANIES. of that account during the two years and nine months to be $1,183,667. Confessedly, no interest was paid during those years, and that amounted each year to something like ![i900,000, or nearly two millions and a half for the two years and nine months. It is ob- yious that, no matter what may have been in the bookkeeping of the company Included in this account, or how much, or from what sources, in prior years, the road had accu- mulated this balance, the increase during the time stated did not equal the accruing in- terest. The attorney general also notices the report for the year ending June 30, 1892, made by the company to the railroad com- mission, a copy of which is attached as an exhibit to the amendment to the cross biU; and from that he tabulates a statement which, as he contends, shows that the earn- ings during that year were sufficient to pay the operating expenses and fixed charges. We give the table as he has prepared it: Oross earnings from operation. . $3,568,690 26 Less operating expenses 2,986,204 12 Income from operation $ 582,486 14 To which should be added amounts expended for "cost of road, equipment, and perma- nent improvements," admitted to have been included in operat- ing expenses 1 302,085 77 Dividends on (compress) stoclss owned 8,020 00 Total income $ 892,591 91 Deductions from Incomes Interest on funded debt accrued during the year, viz. : On $7,954,000 first mortgage bonds at 6^ $477,240 00 On $7,054,000 sec- ond mortgage bonds, one month, at 6^ 35,270 00 On $7,054,000 sec- ond mortgage bonds, eleven months, at 4%^ . . 290,977 50 Total interest accrued $803,487 50 Rental paid Colo- rado River Bridge Company 14,583 32 Taxes 28,951 35 Total deductions $847,022 17 Surplus after paying operat- ing expenses proper, inter- est accrued on bonds, taxes, etc $ 45,569 74 But this table ignores that which is dis- closed in the cross bill, to wit, $750,000 in certificates of indebtedness, bearing interest at 5 per cent., and $1,250,000 third mortgage bonds, bearing 4 per cent, interest, the inter- est on which sums would exceed all the ap- parent surplus. These items also appear in the report, under the head of "Current Lia- bilities," the total balance of which on July 1, 1892, is given as $3,772,062.94, which sum may not unreasonably be taken as showing by how much the company has faUen short of paying its operating expenses and fixed charges. Again, the sum of $302,085.77 ap- pears in that table, under the desci-iption "Cost of road, equipment, and permanent im- provements, admitted to have been included in operating expenses," and is added to the income, as though it had been improperly in- cluded in operating expenses. But, before this change can be held to be proper, it is well to see what further light is tteown on the matter by other portions of the report.^ That states that there were no extensions of tl;e road during that year, so that all of this sum was expended upon the road as it was. Among the items going to make up this sum of $302,085.77 is one of $113,212.09 for rails; and it appears from the same report that there was not a dollar expended for rails, ex- cept as included within this amount. Now, it goes without saying that in the operation of every road there is a constant weai-ing out of the rails, and a constant necessity for replacing old with new. The purchase of these rails may be called "permanent im- provements," or by any other name, but they are what is necessary for keeping the road in serviceable condition. Indeed, in another part of the report, under the head of "Re- newals of Rails and Ties," is stated the num- ber of tons of "new raUs laid" on the main line. Other items therein are for fencing, grading, bridging, and culvert masonry, bridges and trestles, buildings, fm-nitm-e, fix- tures, etc. It being shown affii-matively that there were no extensions, it is obvious that these expenditures were, those necessary for a proper carrying on of the business required of the compaay. Certainly, the mere title under which these expenditures are once stated, is not sufficient to overthrow the facts — so fully and cleai-ly shown — that the stock- holders have never received any dividends; that in order to meet the accumulating inter- est on the bonds they have had to put their hands in their pockets, and advance a million and over of dollars. Those are facts whose significance cannot be destroyed by any mere manner of bookkeeping or classification of expenditures. Further, the attorney general asserts that there are five trunk lines, of which the In- ternational & Great Northern road is one, paralleling each other, and thus dividing the business of the territory through which they pass; that the state of Texas had made large donations of land to railroad companies ; and that, as appears from its executive docu- ments, this railroad company had received a donation of 3,352,320 acres to aid in its con- struction, as well as exemption of all its property from taxation for 25 years. He also calls attention to the financial depres- sion which has of late years pervaded every avenue of trade, and adds a table from the report of tlie commissioner of agi'icultiu-e of Texas, showing, as to different articles pro- duced in that state, an increase in the amount of product, and a decrease in the prices re- LEGISLATIVE POWER OVER RAILROAD COMPANIES. 173 ceived therefor, all of which considerations, he earnestly insists, affect the question of the reasonableness of the rates prescribed. None of the matters mentioned in the fore- going paragraph appear in the pleadings, or elsewhere in the record, and it is therefore doubtful to what extent they may be taken into consideration. If we may talie judicial notice of the five parallel roads, must we also assume that the existence of the other four diminishes the business of the International & Great Northern, and that, if they had nev- er been built, all the business which now passes over the five would have been carried by the one? May not the topography of the country be such as to prevent any of the busi- ness of the other roads from ever coming to the International & Great Northern, even if, without them, it was obliged to seek water or wagon transportation? May not the build- ing of those other roads have increased the population and business to such an extent that the overflow has, so far from diminish- ing, really resulted in an Increase of, the business of the International & Great North- ern? If there has been a division of busi- ness, has there not also been a competition by which the? rates have been reduced, and reduced to such an extent as to forbid the propriety of any fm'ther reduction? If we may take judicial notice that the state made a grant of three million and odd acres to the company, must we also take notice of the value of that land, of its sale, and the amount realized therefrom? While, undoubtedly, there has been lately a period of financial de- pression, can we take judicial notice of the extent to which that depression has reduced the prices of the products of the state? And is the report of the commissioner of agricul- ture of the state to be considered as evidence -before us, and accepted as substantially cor- rect, both as to product and prices? And if the depreciation of prices, as stated in said report, be accepted as correct, will such de- preciation uphold a compulsory reduction of the rates of transportation to such an extent that some of those who have invested their money in railroad transportation receive no compensation therefrom? Is it just to de- prive one party of all compensation in order that another may make some profit? They who invest their money in railroads take the same chances that men engaged in other business do of making profit from the car- rying on of their business; and, as appears from other cases submitted to us with this, some of the railroads in the state of Texas have been operated at a constant loss. But such possibilities of loss are simply the nat- ural results of all business freely carried on, against which the law is powerless to afford protection. Very different are the considera- tions which arise when the strong arm of the law is mvoked to compel parties engaged in legitimate business, and business which can- not be abandoned at will, to so reduce their charges for service as to make the carrying on of that business result in a continued loss. In the one case the law is powerless to pre- vent injury. In the other, it is used to work injury. Counsel suggest that the state itself may construct and operate railroads, and then may properly make rates so low that the business Is done at a loss. They refer to the postal system of the United States,. which, carried on for the common welfare, not infrequently results in a loss, which is made good out of the public treasui-y. But the parallel is not good. In the case suggest- ed the loss is cast, through taxation, upon the general public, and all bear their propor- tionate share of that loss which is Incurred in securing a common benefit, while the scope of this legislation is to secure such common benefit at the expense of a single class. The equal protection of the laws — the spirit of common justice — forbids that one class should, by law, be compelled to suffer loss that others may make gain. If the state were to seek to acquire the title to these roads under its power of eminent domain, is. there any doubt that constitutional provi- sions would require the payment to the cor- poration of just compensation,— that compen- sation being the value of the property as it stood in the markets of the world, and not as prescribed by an act of the legislature?' Is it any less a departm-e from the obligations of justice to seek to take, not the title, but the use, for the public benefit, at less than its. market value? The act of 1853, to which reference has al- ready been made, contained a section looking to the acquisition by the state of the title to. railroad property. Section 17 of the act (Gen. Laws .Tex. 1853, p. 58) is as follows: "If the legislature of this state shall at any- time make a provision by law for the repay- ment to any such company of the amount expended by them in the construction of said road, together with all moneys for permanent fixtures, cars, engines, machinery, chattels, and real property, then in use for the said road, with all moneys expended for repairs or otherwise, and interest on such sums at the rate of twelve per centum per annum, after deducting the amount of tolls, freights,, passage money, and all moneys received from the sale of lands donated by the state to said company, with twelve per centum per an- num interest on all such sums, then the road, with all its fixtures and appurtenances afore- said, and all the lands donated to the same by the state and remaining imsold, shall vest in and revert to the state: provided, that the state shall not be required to pay or al- low a greater rate of Interest on any amount of the money so expended by any company which shall have been borrowed from this state than the state shall have received for the same from such company." This section, as wUl be perceived, provides- for the payment of interest at the high rate of 12 per cent, on the difference between what the company has paid out and what it has taken in, and to that extent evidences the thought of the state that justice required the 174 LEGISLATIVE POWER OVER RAILROAD COMPANIES. return to the builders of railroads of some- thing more than the actual cost, as the con- dition of depriying them of the title. It is only significant, however, as an expression ■of the thought of the state at the time; for, were the provision ever so unjust, every cor- poration which, after the passage of the act, invested its money in building a road, would ■do so with the knowledge that that was the condition upon which the investment was made, and could not, therefore, challenge its validity. And now what deductions are fairly to be drawn from all the facts before us? Is there anything which detracts from the force of the general allegation that these rates are unjust and unreasonable? This clearly ap- pears. The cost of this railroad property was $40,000,000. It cannot be replaced to- day for less than $25,000,000. There are $15,- 000,000 of mortgage bonds outstanding against it, and nearly $10,000,000 of stock. These bonds and stock represent money in- vested in the construction of this road. The owners of the stock have never received a dollar's worth of dividends in return for their investment. The road was thrown into the hands of a receiver for default in payment of the interest on the bonds. The earnings for the last three years prior to the establish- ment of these rates were insufficient to pay the operating expenses and the Interest on the bonds. In order to make good the defi- ciency in Interest, the stockholders have put their hands in their pockets, and advanced ■over a mUlion of dollars. The supplies for the road have been purchased at as cheap a, rate as possible. The officers and employes have been paid no more than is necessary to secure men of the skill and knowledge re- •quisite to suitable operation of the road. By the voluntary action of the company the rate, in cents, per ton, per mile, has decreased in 10 years from 2.03 to 1.30. The actual reduction by virtue of this tariff in the re- ceipts dm'lng tlie six or eight months that it has been enforced amounts to over $150,000. Can it be that a tariff which, under these circumstances, has worked such results to the parties whose money built this road, is other than unjust and unreasonable? Would any investment ever be made of private cap- ital in railroad enterprises with such as the proffered results? It is unnecessai-y to decide, and we do not wish to be understood as laying down as an absolute rule, that in every case a failure to produce some profit to those who have in- vested their money in the building of a road is conclusive that the tariff is unjust and un- reasonable. And yet justice demands that ■ every one should receive some compensa- tion for the use of his money or property, if it be possible without prejudice to the rights of others. There may be circum- stances which would justify such a tariff. There may have been extravagance, and a needless expenditure of money. There may be waste in the management of the road, enormous salaries, unjust discrimination as between individual shippers, resulting in gen- eral loss. The construction may have been at a time when material and labor were at the highest price, so that the actual cost far exceeds the present value. The road may have been unwisely built, in localities where there is ho sufficient business to sustain a road. Doubtless, too, there are many other matters affecting the rights of the commu- nity in which the road is built, as well as the riglits of those who have built the road. But we do hold that a general averment in a bill that a tariff, as established, is unjust and unreasonable, is supported ' by the ad- mitted facts that the road cost far more than the amount of the stock and bonds out- standing; that such stock and bonds repre- sent money invested in its construction; that there has been no waste or mismanagement in the construction or operation; that sup- plies and labor have been purchased at the lowest possible price consistent with the suc- cessful operation of the road; that the rates voluntarily fixed by the company have been for 10 years steadily decreasing, until the ag- gregate decrease has been more than 50 per cent.; that, under the rates thus voluntarily established, the stock, which represents two- fifths of the value, has never received any- thing in the way of dividends, and that for the last three years the earnings above oper- ating expenses have been insufficient to pay the interest on the bonded debt, and that the proposed tariff, as enforced, will so diminish the earnings that they wiU not be able to pay one-half the interest on the bonded debt above the operating expenses; and that such an averment, so supported, will, in the ab- sence of any satisfactory showing to the contrary, sustain a finding that the proposed tariff is unjust and unreasonable, and a de- cree restraining it being put in force. It follows from these considerations that the decree, as entered, must be reversed, in so far as it restrains the railroad commission from discharging the duties imposed by this act, and from proceeding to establish reason- able rates and regulations, but must be af- firmed so far only as it restrains the defend- ants from enforcing the rates already estab- lished. The costs in this court wiU be di- vided. Decree accordingly. Where a state, by law, specifically prescribes the maximum rates of charge, the courts can also give relief, if such rates are so unreasonably low as practically to destroy the property of the company. Such a law deprives the company of property without due process of law, and also deprives it of the equal protection of the laws, thus violating the fourteenth amendment of the United States constitution. St. Louis & San Francisco Railway Co. v. Gill (1895) 156 U. S. 649, 15 Sup. Ct. 484. LEGISLATIVE POWER OVER RAILROAD COMPANIES. 175 "Ettot to State court. Double damages for killing stock. Fourteenth amendment. Police poorer. Punitive damages. MINNEAPOLIS & ST. LOUIS RAILWAY OO. y. BECKWITH. (129 V. S. 26, 9 Sup. Ct. 207.) Supreme Court of the United States. Jan. 7, 1889. In error to the circuit court of Kossuth ■countj, state of Iowa. Eppa Hunton, for plaintiff in error. FIELD, J. This case comes before us from the circuit court of Kossuth county, Iowa, the highest court of that state in whicli the controversy between the parties could be de- termined. Rev. St. § 709. It was an action for the value of three hogs run over and killed by the engine and cars of the Minneapolis & St. Louis Railway Company, a corporation existing under the laws of Minnesota and Iowa, and operating a railroad in the latter state. The killing was at a point where the defendant had the right to fence its road.. The action was brought before a justice of the peace of Kossuth county. Proof having been made of the killing of the animals, anJ ■of their value, and that notice of the fact, with affidavit of the injury, had been served upon an officer of the company in the county where the injury was committed more than SO days before the commencement of the ac- tion, tlie justice gave judgment for the plain- tiff against the company for $24, double the proved value of the animals. The case was then removed to the circuit court of Kossuth ■county, where the judgment was affirmed. To review this latter judgment the case is brought here on writ of error. The judgment rendered by the justice was authorized by section 1289 of the Code of Iowa, which is as follows: "Any oorpoiation operating a railway that fails to fence the same against live stock running at large at all points where such right to fence exists shall be liable to the owner of any such stock injured or killed by reason of the want of sucli fence for the value of the property or damage caused, unless the same was occa- sioned by the willful act of the owner or his agent; and in order to recover, it shall only be necessary for the owner to prove tlie in- jury or destruction of his property; and if such corporation neglects to pay the value of ■or damage done to such stock within thirty days after notice in writing, accompanied by an affidavit of such injury or destruction, has been served on any officer, station or ticket agent employed in the management of the business of the corporation in the county where the injury con)pIained of was com- mitted, such owner shall be entitled to re- cover double the value of the stock killi-d or damages caused thereto." The validity of this law was assailed in the state court, and is assailed here, as being in conflict witli the first section of the fourteenth amendment of the constitution of the United States, in that It deprives the railway company of property without due process of law, so far as it allows a recovery of double the value of the animals killed by its trains; and in that it denies to the company the equal protection of the laws by subjecting it to a different liability for in- juries committed by it from that to which all other persons are subjected. It is contended by counsel as the basis of his argument, and we admit the soundness of his position, that corporations are persons within the meaning of the clause in question. It was so held in Santa Clara Co. v. Railroad Co., 118 U. S. 394, 396, 6 Sup. Ct. Rep. 1132, and the doctrine was reasserted in Mining Co. V. Pennsylvania, 125 U. S. 181, 189, 8 Sup. Ct. Rep. 737. We. admit also, as con- tended by him, that corporations can invoke the beneflts of provisions of the constitution and laws which guaranty to persons the en- joyment of property, or afford to them the means for its protection, or prohibit legisla- tion injuriously affecting it. We will consider the objections of the rail- way company in the reverse order in which they are stated by counsel. And first, as to the alleged conflict of the law of Iowa with the clause of the fourteenth amendment ordaining that no state shall deny to any per- son within its jurisdiction the equal protec- tion of the laws. That clause does undoubt- edly prohibit discriminating and partial leg- islation by any state in favor of particular persons as against others in like condition. Equality of protection implies, not merely equal accessibility to the courts for the pre- vention or redress of wrongs and the enforce- ment of rights, but equal exemption with others in like condition from charges and lia- bilities of every kind. But the clause does not limit, nor was it designed to limit, the sub- jects upon which the police power of the state may be exerted. The state can now, as be- fore, prescribe regulations for the health, good order, and safety of society, and adopt such measures as will advance its interests and prosperity. And to accomplish this end spe- cial legislation must be resorted to in numer- ous cases, providing against accidents, dis- ease, and danger in the varied forms in which they riiay come. The nature and extent of such legislation will necessarily depend upon the judgment of the legislature as to the se- curity needed by society. When tlie calling, profession, or business of parties is unat- tended with danger to others, little legislation will be necessary respecting it. Thus, in the purchase and sale of most articles of general use, persons maybe left to exercise their own good sense and judgment; but when the call- ing or profession or business is attended with danger, or requires a certain degree of scien- tiUc knowledge upon which otliers must rely, then legislation properly steps in to impose conditions upon its exercise. Thus, if one is engaged in the manufacture or sale of explo- sive or inflammable articles, or in the prep- aration or sale of medicinal drugs, legislation for the security of society may prescribe the terms on which he will be permitted to carry 176 LEGISLATIVE POWEE OVER EAILEOAD COMPANIES. on the business, and the liabilities lie will in- cur from neglect of them. The concluding clause of the flrst section of the fourteenth amendment simply requires that such legis- lation shall treat alike all persons brought under subjection to it. The equal protection of the law is afforded when this is accom- plished. Such has been the ruling of this court in numerous instances where that clause has been invoked against legislation supposed to be in conflict with it. Thus in Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Eep. 357, it was objected that a municipal or- dinance of San Francisco, prohibiting wash- ing and ironing in public laundries within certain designated limits of the city between the hours of 10 at niglit and 6 in the morn- ing, was in conflict with that amendment, in that it discriminated between laborers en- gaged in the laundry business and those en- gaged in other kinds of business, and between laborers employed within the designated lim- its and those without them. But the court held that the provision was merely a police regulation; that it might be a necessary meas- ure of protection in a city composed largely of wooden buildings, like San Francisco, that occupations in which fires are constantly re- quired should cease during certain hours at night, and of tlie necessity of such a regula- tion that municipal body was the exclusive judge; that tlie same authority which directs the cessation of labor must necessarily pre- scribe the limits within which it shall be en- forced, as it does the limits within which wooden buildings must not be constructed; and that restrictions of this kind, though nec- essarily special in character, do not furnish ground of complai nt if tliey operate alike upon all persons or property under the same cir- cumstances and conditions. "Class legisla- tion," saidthecourt, "discriminating against some :ind favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within tlie sphere of its operation it affects alike all persons similarly situated, is not within the amendment." In Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730, an objection was taken to a similar ordinance of San Francisco tliat it made an unwarrantable discrimination against persons engaged in the laundry bus- iness, because persons in other kinds of busi- ness were not required to cease from labor during the same hours at night. But, the court said, there may be no risks attend- ing the business of others, certainly not as great as where Qres are constantly required; and that specific regulations for one kind of business, which may be necessary for the pro- tection of the public, can never be the just ground of complaint, because like restrictions are not imposed upon business of a different kind. "The discriminations, which are open to objection," the court added, "are those wliere persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the dis- crimination can be said to impair that equal right wliich all can claim in the enforcement of the law." In Railway Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. Eep. 110, a statute of Missouri requiring every railroad corporation within it to erect and maintain fences and cattle- guards on the sides of its roads, where the same passed through, along, or adjoining in- closed or cultivated fields, or un inclosed lands, and, if it did not, making it liable in double the amount of damages to animals caused thereby, was assailed as in conflict with the fourteenth amendment on the same grounds urged in the present case; namely, that it deprived the defendant of property without due process of law, so far as it allowed a recovery of damages for stock killed or in- jured in excess of its value, and also that it denied to the defendant the equal protection of the laws, by imposing upon it a liability for injuries committed which was not im- posed upon otlier persons. But the courl; said that authority for requiring railroads to erect fences on tlie sides of their roads, so aa to keep horses, cattle, and otlier animals from going upon them, was found in the general police power of the state to provide against accidents to life and property in any business or employment, whether under the charge of private persons or of corporations ; that in few instances could that power be more wisely or beneficently exercised tlian in compelling railroad corporations to inclose their roads with fences having gates at cross- ings, and cattle-guards; that they are abso- lutely essential to gi-ve protection against ac- cidents in thickly-settled portions of the country; that the omission to erect and maintain them, in the face of the law, would justly be deemed gross negligence; and that if injuries to property are committed, some- thing beyond compensatory damages might be awarded in punishment of it. Referring to the rule which prevails of allowing juries to assess exemplary or punitive damagea where injuries have resulted from neglect of duties, thecourtsaid: "The statutes of near- ly every state of the Union provide for the increase of damages where the injury com- plained of results from the neglect of duties imposed for the better security of life and property, and make that increase in many cases double, in some cases treble, and even quadruple, the actual damages. And ex- perience favors this legislation as the most efficient mode of preventing, with the least inconvenience, tlie commission of injuries. The decisions of the highest courts have af- firmed the validity of such legislation. The injury actually received is often so small that in many cases no effort would be made by the sufferer to obtain redress if the private interest were not supported by the imposi- tion of punitive damages." And as to the objection that the statute of Missouri denied to the defendant the equal protection of the laws, the court said that it made no discrim- LEGISLATIVE POWER OVER RAILROAD COMPANIES. 177 ination against any railroad company in its requirement; that each company was subject to the same liabilities, and from each the same security was exacted by the erection of fences, gates, and cattle-guards, when its road passed through, along, or adjoining in- closed or cultivated fields or uninclosed lands ; and that there was no evasion of the rule of equality where all companies are sub- jected to the same duties and Uabilities under similar circumstances. In Railwav Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161, a statute of Kansas providing that "every railroad company doing business in that state should be liable for all damages done to any employe of such company in conse- quence of any negligence of its agents, or by any mismanagement of its engineers or other employes, to any person sustaining such damage, " was assailed on the ground that it was in conflict with the fourteenth amend- ment to the constitution, in that it deprived the company of its property without due process of law, and denied to it the equal protection of the laws. In support of the lirst position the company referred to the rule of law that prevailed previously in Kan- sas and some other states exempting from liability an employer for injuries to employes caused by the incompetency or negligence of a fellow-servant, and contended that the law of Kansas in creating, on the part of the railroad company, a liability in snch cases not previously existing, in the enforcement of which their property might be taken, au- thorized the taking of property without due process of law, and imposed a special liability upon railway companies that was not im- posed upon other persons, and thus denied to the former the equal protection of the laws. But the court answered that the law in question applied only to injuries subse- quently committed, and that it would not be contended that the state could not prescribe the liabilities under which corporations cre- ated by its laws should conduct their business in the future, where no limitation was placed upon its power in that respect by their charters; that whatever hardship or in- justice there might be in any law thus ap- plicable to the future must be remedied by legislative enactment; that the objection that the railroad company was denied the equal protection of the laws rested upon the theory tliat legislation special in its character was within the constitutional inhibition, but that, so far from such being the fact, the greater part of all legislation was special, either in the objects sought to be attained by it or in the extent of its application; that when such legislation applied to particular bodies or as- sociations, imposing upon them additional liabilities, it was not open to the objection that it denied to them the equal protection of the laws, if all persons brought under its in- fluence were treated alike under the same conditions; that the hazardous character of the business of operating a railway called for special legislation, with respect to railroad BALDW. SEL. CAS. K. B. — 13 corporations, having for its object the pro- tection of their employes as well as the safety of tlie public, which was not required by the business of other corporations not subject to similar dangers to their employes; and that the legislation in question met a particular necessity, and all railroad corporations with- out distinction were subject to the same lia- bilities. Erom these adjudications it is evident that the fourteenth amendment does not limit the subjects in relation to which tlie police power of the state may be exercised for the protection of its citizens. That this power should be applied to railroad companies is reasonable and just. The tremendous force brought into action in running railway cars renders it absolutely essential that every pre- caution should be taken against accident by collision, not only with other trains, but with animals. A collision with animals may be attended with more serious injury tlian their destruction; it may derail the cars and cause the death or serious injury of passengers. Where these companies have the right to fence in their tracks, and thus secure their roads from cattle going upon them, it would seem to be a wise precaution on their part to put up such guards against accidents at places where cattle are allowed to roam at lai-ge. The statute of Iowa, in fixing an absolute liability upon them for injuries to cattle com- mitted in the operation of their roads by rea- son of the want of such guards, would seem to treat this precaution as a ■duty. It is true that, by the common law, the owner of land was not compelled to inclose it, so as to pre- vent the cattle of others from coming upon it, and it may be that, in the absence of leg- islation on the subject, a railway corporation is not required to fence its railway, the com- mon law as to inclosing one's land having been established long before railways were known. But the obligation of the defendant railway company to use reasonable means to keep its track clear, so as to insure safety in the movement of its trains, is plainly implied by the statute of Iowa, which also indicates that the putting up of fences would be such reasonable means of safety. If, therefore, the company omits those means, the omission may well be regarded as evidence of such culpable negligence as to justify punitive damages where injury is committed; and if punitive damages in sucli cases may be given, the legislature may prescribe the extent to which juries may go in awarding them. The law of Iowa under consideration is less open to objection than that of Missouri, which was sustained in the case cited above. There double damages could be claimed by the owner whenever his cattle had strayed upon the track of the railway company for want of fences on its sides, and had been killed or injured by the railway trains. Here such damages can be claimed for like injuries to cattle only where the company has received notice and affidavit of the injury committed 30 days before the commencement of ttie ac- 178 LEGISLATIVE POWER OVER RAILROAD COMPANIES. tion, and has persisted in refusing to pay for the value of tlie property destroyed or the damage caused. There must be not merely negligence of the company in not providing guards against accidents of the kind, but also its refusal to respond for the actual damage suffered. Witliout the additional amount allowed there would be few instances of pros- ecutions of raih'oad companies where the value of the auiuials killed or Injured by them is small, as in tliis case; the cost of the proceeding would only augment the loss of the injured party. As said in the Missouri case cited: "The injury actually received is often so small that in many cases no effort would be made by the sufferer to obtain re- dress, if the private interest were not sup- ported by the imposition of punitive dam- ages." The legislation in question has been sus- tained in numerous instances by the supreme court of Iowa. In Welsh v. Railroad Co., 53 Iowa, 632, 6 N. W. Rep. 18, which was an action to recover double the value of a horse alleged to have been killed by one of the de- fendant's engines at a point wliere it had the right to fence the road, the court below in- structed the jury that it was the duty of the company to fence its road against live stock running at large at all points where such right to fence existed; and it was objected to this instruction that no such duty existed, upon which the supreme court of the state, to which the case was taken, said: "While it is true the statute does not impose an ab- stract duty or obligation upon railroad com- panies to fence their roads, yet as to live stock running at large a failure to fence fixes an absolute liability for injuries occurring in the operation of the road by reason of the want of such fence. The corporation owes a duty to the owners of live stock running at large either to fence its road, or to pay for in- juries resulting from the neglect to fence." And in Bennett v. Railway Co., 61 Iowa, 355, 16 N. W. Rep. 210, the same court said: "We think the only proper construction of the statute is that, in order to escape liability, the company must not only fence, but keep the road sufficiently fenced; and this has been more than once ruled." As it is thus the duty of the railway company to keep its track free from animals, its neglect to do so, by adopting the most reasonable means for that purpose, — the fencing of its roadway, as indicated by the statute of Iowa, — justly sub- jects it, as already stated, to punitive dam- ages, where injuries are committed by reason of such neglect. The imposition of punitive or exemplary damages in such cases cannot be opposed as in conflict with the prohibition against the deprivation of property without due process of law. It is only one mode of imposing a penalty for the violation of duty, and its propriety and legality have been rec- ognized, as stated in Day v. Woodworth, 13 How. 363, 371, by repeated judicial decisions for more than a century. Its authorization by the law in question to the extent of doub^ ling the value of the property destroyed, or of the damage caused, upon refusal of the rail- way company, for 30 days after notice of the injury committed, to pay the actual value of the property or actual damage, cannot, there- fore, be justly assailed as infringing upon the fourteenth amendment of the constitution of the United States. Judgment alfirmed. INTERSTATE COMMERCE ACT. 179 INTERSTATE COMMERCE ACT. <24 Stat. 379; 25 Stat. 856. 860; 26 Stat. 743; 27 Stat. 443, 531.) An Act to Regulate Commerce. Be it enacted by the senate and house of rep- resentatives of the United States of America in congress assembled, that the provisions of this act shall apply to any common carrier or carriers engaged in the transportation of pas- sengers or property wholly by railroad, or partly by i-ailroad and partly by water when both are used, under a common control, man- agement, or arrangement, for a continuous carriage or shipment, from one state or terri- tory of the United States, or the District of Columbia, to any other state or territory of the United States, or the District of Colum- bia, or from any place in the United States to an adjacent foreign country, or from any place in the United States thi-ough a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of trans- shipment, or shipped from a foreign country to any place in the United States and car- ried to such place from a port of entry either in the United States or an adjacent foreign country: provided, however, that the provi- sions of this act shall not apply to the trans- portation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one state, and not shipped to or from a foreign country from or to any state or territory as aforesaid. The term "railroad" as used in this act shall include all bridges and ferries used or oper- ated in connection with any railroad, and also all the road in use by any corporation oper- ating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "transportation" shall include all in- strumentalities of shipment or carriage. All charges made for any service rendered or to be rendered In the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, de- livering, storage, or handling of such property, shall be reasonable and just; and every un- just and unreasonable charge for such service is prohibited and declared to be unlawful. Sec. 2. That if any common can-ier subject to the provisions of this act shall, directly or Indirectly, by any special rate, rebate, draw- back, or other device, charge, demand, collect, or receive from any person or persons a great- er or less compensation for any service ren- dered, or to be rendered, in the transportation of passengers or property, subject to the pro- visions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of un- just discrimination, which is hereby prohib- ited and declared to be unlawful. Sec. 3. That it shall be unlawful for any comnion carrier subject to the provisions of this act to make or give any undue or unrea- sonable preference or advantage to any par- ticular person, company, firm, corporation, or locality, or any particular description of traf- fic, in any respect whatsoever, or to subject any particular person, company, firm, corpora- tion, or locality, or any particular description of traffic, to any undue or unreasonable prej- udice or disadvantage in any respect what- soever. Every common carrier subject to the provi- sions of this act shall, according to their re- spective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their sev- eral lines and those connecting therewith, and shall not discriminate in their rates and char- ges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier en- gaged in like business. Sec. 4. That it shall be unlawful for any common carrier subject to the provisions of this act to charge or receive any greater com- pensation in the aggregate for the transporta- tion of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer dis- tance over the same line, in the same direc- tion, the shorter being included within the longer distance; but this shall not be con- strued as authorizing any common carrier within the terms of this act to charge and re- ceive as great compensation for a shorter as for a longer distance: provided, however, that upon application to the commission appointed under the provisions of this act, such common carrier may, in special cases, after investiga- tion by the commission, be authorized to charge less for longer than for shorter dis- tances for the transportation of passengers or property; and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act. Sec. 5. That It shall be unlawful for any common carrier subject to the provisions of this act to entei into any contract, agreement, or combination with any other common car- rier or carriers for the pooling of freights of different and competing railroads, or to di- vide between them the aggregate or net pro- ceeds of the earnings of such railroads, or any portion thereof; and In any case of an agree- ment for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense. Sec. 6. (As amended March 2, 1889.) That every common carrier subject to the provl- 180 INTERSTATE COMMERCE ACT. sions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any .?uch common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plain- ly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places, in every depot, sta- tion, or office of such carrier where passen- gers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be con- veniently inspected. Any common carrier subject to the provi- sions of this act receiving freight in the Unit- ed States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates estab- lished and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight tor shipment; and any freight shipped from the United States through a foreign country into the United States, the through rate on which shall not have been made public as required by this act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as If said freight were of foreign production; and any law in conflict with this section is hereby repealed. No advance shall be made in the rates, fares, and charges which have been establish- ed and published as aforesaid by any common carrier in compliance with the requirements of this section, except after ten days' public notice, which shall plainly state the changes proposed to be made in the schedule then in force, and the time when the increased rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly Indicated upon the schedules in force at the time and kept open to public inspection. Reductions In such published rates, fares, or charges shall only be made after three days' previous public notice, to be given in the same manner that notice of an advance In rates must be given. And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the pro- visions of this section, it shall be unlawful for such common carrier to charge, demand, col- lect, or receive from any person or persons a greater or less compensation for the trans- portation of passengers or property, or for any services in connection therewith, than is speci- fied in such published schedule of rates, fares, and charges as may at the time be in force. Every common carrier subjeet to the provi- sions of this act shall file with the commis- sion hereinafter provided for copies of Its schedules of rates, fares, and charges which have been established and published in com- pliance with the requirements of this section, and shall promptly notify said commission of all changes made in the same. Every such common carrier shall also file with said com- mission copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provi- sions of this act to which it may be a party. And in cases where passengers and freight pass over continuous lines or routes operated by more than one common earlier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said commission. Such joint rates, fares, and charges on such continuous lines so filed as aforesaid shall be made public by such common carriers when directed by said commission, in so far as may, in the judgment of the commission, be deemed practicable; and said commission shall from time to time prescribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carriers to publish, and the places in which they shall be published. * No advance shall be made in joint rates, fares, and charges, shown upon joint tariffs, except after ten days' notice to the commis- sion, which shall plainly state the changes proposed to be made in the schedule then In force, and the time when the increased rates, fares, or charges will go into effect. No re- duction shall be made in joint rates, fares, and charges, except after three days' notice, to be given to the commission as is above provided in the case of an advance of joint rates. The commission may make public such proposed advances, or such reductions, in such manner as may, in its judgment, be deemed practicable, and may prescribe from time to time the measure of publicity which common carriers shall give to advances or reductions in joint tariffs. It shall be unlawful for any common car- rier, party to any joint tariff, to charge, de- mand, collect, or receive from any person or persons a greater or less compensation for the transportation of persons or property, or for any services in connection therewith, be- tween any points as to which a joint rate, fare, or charge is named thereon than is specified in the schedule filed with the com- mission in force at the time. The commission may determine and pre- ISITERSTATE COMMERCE ACT. 181 scribe the form in whicli the schedules re- quired by this section to be liept open to public inspection shall be prepared and ar- ranged, and may change the form from time to time as shall be found expedient. If any such common carrier shall neglect or refuse to file or publish its scliedules or tariffs of rates, fares, and charges as pro- Tided in this section, or any part of the same, such common carrier shall, in addition to other penalties herein prescribed, be sub- ject to a writ of mandamus, to be issued by any circuit court of the United States in the judicial district wherein the principal office of said common carrier is situated, or where- in such offense may be committed, and if such common carrier be a foreign corpora- tion in the judicial circuit wherein such com- mon carrier accepts traffic and has an agent to perform such service, to compel compli- ance with the aforesaid provisions of this section; and such writ shall issue in the name of the people of the United States, at the relation of the commissioners appointed under the provisions of this act; and the failure to comply with its requirements shall be punishable as and for a contempt; and the said commissioners, as complainants, may also apply, in any such circuit court of the United States, for a writ of injunction against such common carrier, to restrain such common carrier from receiving or trans- porting property among the several states a,nd territories of the United States, or be- tween the United States and adjacent for- eign countries, or between ports of trans- shipment and ol entry and the several states and territories of the United States, as men- tioned in the first section of this act, until such common carrier shall have complied with the aforesaid provisions of this section of this act. Sec. 7. That it shall be unlawful for any common carrier subject to the provisions of this act to enter into any combination, con- tract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage In different cars, or by other means or de- vices, the can-iage of freights from being continuous from the place of shipment to the place of destination; and no break of bulli, stoppage, or interruption made by such com- mon carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of ship- ment to the place of destination, unless such breals, stoppage, or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade, any of the provisions of this act. See. 8. That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to dc any act, matter, or thing in this act requirpil to be done, such common carrier shall be liable to the person or persons injured there- by for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a rea- sonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case. Sec. 9. That any person or pgrsons claim- ing to be damaged by any common carrier subject to the provisions of this act may either make complaint to the commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common car- rier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pui-sue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such ac- tion brought for the recovery of damages the court before which the same shall be pend- ing may compel any director, officer, receiver, trustee, or agent of the coi-poration or com- pany defendant in such suit to attend, ap- pear, and testify in such case, and inay compel the production of the books and pa- pers of such corporation or company party to any such suit; the claim that any such testi- mony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evi- dence or testimony shall not be used against such person on the trial of any criminal proceeding. Sec. 10. (As amended March 2, 1889.) That any common carrier subject to the provisions of this act, or, whenever such common car- rier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such corporation, who, alone Or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this act prohibit' ed or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, mat- ter, or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be sub- ject to a fine of not to exceed five thousand dollars for each offense: provided, that if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares, or charges, for 182 INTEKSTATE COMMERCE ACT. the transportation of passengers or property, such person shall, in addition to the fine hereinbefore provided for, be liable to im- prisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Any common carrier subject to the provi- sions of this act, or. whenever such com- mon carrier is a corporation, any officer or agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classification, false weighing, or false report of weight, or by any other device or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or persons to obtain transportation for property at less than the regular rates then established and in force on the line of transportation of such com- mon carrier, shall be deemed guilty of a misdemeanor, and Shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be sub- ject to a fine of not exceeding five thousand dollars, or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense. Any person and any officer or agent of any corporation or company who shall deliver property for transportation to any common carrier, subject to the provisions of this act, or for whom as consignor or consignee any such carrier shall transport property, who shall knowingly and willfully, by false bill- ing, false classification, false weighing, false representation of the contents of the pack- age, or false report of weight, or by any oth- er device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a mis- demeanor, and shall, upon conviction thereof in any court of the United States of com- petent jurisdiction within the district in which such offense was committed, be sub- ject for each offense to a fine of not exceed- ing five thousand dollars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court. If any such person, or any officer or agent of any such corporation or company, shall, by payment of money or other thing of value, solicitation, or otherwise, induce any com- mon c-arrier subject to the provisions of this act, or any of its officers or agents, to dis- criminate unjustly in his, its, or their favor as against any other consignor or consignee in the transportation of property, or shall aid or abet any common carrier in any such unjust discrimination, such person or such officer or agent of such coi"poration or com- pany shall be deemed guilty of a misdemean- or, and shall, upon conviction thereof in any court of the United States of competent ju- risdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars, or im- prisonment in the penitentiary for a term of not exceeding two years, or both, in the dis- cretion of the court, for each offense; and such person, corporation, or company shall also, together with said common carrier, b^ liable, jointly or severally, in an action on the case to be brought by any consignor or consignee discriminated against in any court of the United States of competent jurisdic- tion for all damages caused by or resulting therefrom. Sec. 11. That a commission is hereby cre- ated and established to be known as the in- ter-state commerce commission, which shall be composed of five commissioners, who shall be appointed by the president, by and with the advice and consent of the senate. The commissioners first appointed under this act shall continue in office for the term of two, three, four, five, and six years, respectively, from the first day of January, Anno Domini eighteen himdred and eighty-seven, the term of each to be designated by the president; but their successors shall be appointed for terms of six years, except that any person chosen to fill a vacancy shall be appointed on- ly for the unexpired time of the commissioner whom he shall succeed. Any commissioner may be removed by the president for inef- ficiency, neglect of duty, or malfeasance in office. -Not more than three of the commis- sioners shall be appointed from the same po- litical party. No person in the employ of or holding any official relation to any common carrier subject to the provisions of this act, or owning stock or bonds thereof, or who is in any manner pecuniarily interested therein, shall enter upon the duties of or hold such office. Said commissioners shall not engage in any other business, vocation or employ- ment. No vacancy in the commission shall impair the right of the remaining commis- sioners to exercise aU the powers of the com- mission. Sec. 12. (As amended March 2, 1889. and February 10, 1891.) That the commission hereby created shall have authority to in- quire into the management of the business of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to ob- tain from such common carriers full and complete information necessary to enable the commission to perform the duties and carry out the objects for which it was created; and the commission is hereby authorized and re- quired to execute and enforce the provisions of this act; and, upon the request of the com- mission, it shall be the duty of any district attorney of the United States to whom the commission may apply to institute in the INTERSTATE COMMERCE -ACT. 183 proper court and to prosecute under tbe di- rection of the attorney-geneial of the United States all necessary proceedings for the en- forcement of the provisions of this act and for the punishment of all violations thereof, and the costs and expenses of such prosecu- tion shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this act the commission shall have power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under in- vestigation. Such attendance of witnesses, and the pro- duction of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpojna the commission, or any party to a proceeding before the commission, may invoke the aid of any court of the United States In requiring the attendance and testimony of witnesses and the production of books, papers, and doc- uments under the provisions of this section. And any of the circuit courts of the Unit- ed States within tbe jurisdiction of which such Inquiry is carried on may, in case of contumacy or refusal to obey a subpoena is- sued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear before said commis- sion (and produce books and papers if so or- dered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the pei-son giving such evi- dence shall not excuse such witness from tes- tifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. The testimony of any witness may be tak- en, at the instance of a party in any proceed- ing or inv^tigation depending before the commission, by deposition, at any time after a cause or proceeding is at issue on petition and answer. The commission may also order testimony to be taken by deposition in any proceeding or investigation pending before it, at any stage of such proceeding or investiga- tion. Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancel- lor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the Urited States, or any notary public, not being of counsel or attor- ney to either of the parties, nor interested in the event of the proceeding or investigation. Reasonable notice must first be given in writing by the party or his attorney propos- ing to take such deposition to the opposite party or his attorni=y of record, as either may be nearest, which notice shall state the name of the witness and the tijne and place of the taking of his depcisition. Any person may be compelled to appear and depose, and to produce documentary evidence, in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the commission as hereinbe- fore provided. Every person deposing as herein provided shall be cautioned and sworn (or affirm, if he so request) to testify the whole truth, and shall be carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or under his direction, and shall, after it has been reduced to writ- ing, be subscribed by the deponent. If a witness whose testimony may be de- sired to be taken by deposition be in a for- eign country, the deposition may be taken before an officer or person designated by the commission, or agreed upon by the parties by stipulation in writing to be filed with the commission. All depositions must be prompt- ly filed with the commission. Witnesses whose deijositions are taken pur- suant to this act, and the magistrate or oth- er officer taking the same, shall severally be entitled to the same fees as are paid for like services in the courts of the United States. Sec. 13. That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of any- thing done or omitted to be done by any common carrier subject to the provisions of this act in contravention of the provisions thereof, may apply to said commission by pe- tition, which shall briefly state the facts; whereupon a statement of the charges thus made shall be forwarded by the commission to such common carrier, who shall be called upon to satisfy the .complaint or to answer the same in writing within a reasonable time, to be specified by the commission. If such common carrier, within the time spec- ified, shall make reparation for the injury al- leged to have been done, said carrier shall be relieved of liability to the complainant on- ly for the particular violation of law thus complained of. t( such carrier shall not sat- isfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the commission to in- vestigate the matters complained of in such manner and by such means as it shall deem proper. Said commission shall in like manner in- vestigate any complaint forwarded by the railroad commissioner or raili'oad commission of any state or territory, at the request of such commissioner or commission, and may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made. No complaint shall at any time be dismissed 184 INTERSTATE COMMERCE ACT. because of the absence of direct damage to tbe complainant. Sec. 14. (As amended March 2, 1889.) That Avhenever an investigation shall be made by said commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the commission are based, together with its recommendation as to what reparation, if any, should be made by the common carrier to any party or parties who may be found to have been injured; and such findings so made shall thereafter, in all ju- dicial proceedings, be deemed prima facie evi- dence as to each and evei-y fact found. All reports of investigations made by the commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any com- mon carrier that may have been complained of. The commission may provide for the pub- lication of its reports and decisions in such form and manner as may be best adapted for public information and use, and such author- ized publications shall be competent evidence of the reports and decisions of the commis- sion therein contained, in all courts of the United States, and of the several states, with- out any further proof or authentication there- of. The commission may also cause to be printed for early distribution its annual re- ports. Sec. 15. That if in any case in which an investigation shall be made by said commis- sion it shall be made to appear to the satis- faction of the commission, either by the tes- timony of witnesses or other evidence, that anything has been done or omitted to be done in violation of the provisions of this act, or of any law cognizable by said commission, by any common carrier, or that any injury or damage has been sustained by the party or parties complaining, or by other parties ag- grieved in consequence of any such violation, it shall be the duty of the commission to forthwith cause a copy of its report in re- spect thereto to be delivered to such com- mon carrier, together with a notice to said common cairier to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reasonable time, to be specified by the commission; and if, within the time spec- ified, it shall be made to appear to the com- mission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and no- tice of the commission, or to the satisfaction of the party complaining, a statement to that effect shall be entered of record by the com- mission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particular violation of law. Sec. 16. (As amended March 2, 1889.) That whenever any common can-ier, as de- fined in and subject to the provisions of this act, shall violate, or refuse or neglect to obey or perfomi any lawful order or requirement of the commission created by this act, not founded upon a controversy requiring a trial by jury, as provided by the seventh amend- ment to the constitution of the United States, it shall be lawful for the commission or for any company or person interested in such order or requirement, to apply in a summary way, by petition, to the circuit court of the United States sitting in equity in the judicial district in which the common carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, al- leging such violation or disobedience, as the case may be; and the said court shall have power to hear and determine the matter, on such short notice to the common carrier com- plained of as the court shall deem reasona- ble; and such notice may be served on such common carrier, his or its officers, agents, or servants in such manner as the court shall direct; and said court shall proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do jus- tice in the premises; and to this end such court shall have power, if it think fit, to di- rect and prosecute in such mode and by such persons as it may appoint, all such in- quiries as the court may think needful to enable it to form a just judgment in the matter of such petition; and on such hearing the findings of fact in the report of said com- mission shall be prima facie evidence of the matters therein stated; and if it be made to appear to such court, on such hearing or on report of any such person or persons, that the lawful order or requirement of said commission drawn in question has been vio- lated or disobeyed, it shall be lawful for such court to issue a writ of injunction or other proper process, mandatory or other- wise, to restrain such common carrier from further continuing such violation or disobedi- ence of such order or requirement of said commission, and enjoining obedience to the same; and in case of any disobedience of any such writ of injunction or other prop- er process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other process of said court incident or applicable to writs of injunction or other proper process, manda- toiy or otherwise, against such common carrier, and if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction, or other prop- er process, mandatory or otherwise; and said court may, if it shall think fit, make an order directing such common carrier or other person so disobeying such writ of injunction or other proper process manda- tory or otherwise, to pay such sum of mon- INTEUSTATE COMMERCE ACT. 185 ey, not exceeding for each carrier or per- son in default tlie sum of five hundred dol- lars for every day, after a day to be nam- ed in the order, that such carrier or oth- er person shall fall to obey such injunction or other proper process, mandatory or other- wise; and such moneys shall be payable as the court shall direct, either to the party complaining or into court, to abide the ulti- mate decision of the court, or into the treas- ury; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or or- der in the nature of a writ of execution, in like manner as if the same had been recov- ered by a final decree in personam in such court. When the subject in dispute shall be of the value of two thousand dollars or more, either party to such proceeding before said court may appeal to the supreme court of the United States, under the same regula- tions now provided by law in respect of se- curity for such appeal; but such appeal shall not operate to stay or supersede the •order of the court or the execution of any writ or process thereon; and such court may, in every such matter, order the pay- ment of such costs and counsel fees as shall be deemed reasonable. Whenever any such petition shall be filed or presented by the commission it shall be the duty of the dis- trict attorney, under the direction of the attorney-general of the United States, to prosecute the same; and the costs and ex- penses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States. If the matters involved in any such order or requirement of said commission are found- ed upon a controversy requiring a trial by jury, as provided by the seventh amendment to the constitution of the United States, and any such common carrier shall violate or refuse or neglect to obey or perform the same, after notice given by said commission as provided in the fifteenth section of this act, It shall be lawful for any company or person interested in such order or require- ment to apply in a summary way by peti- tion to the circuit court of the United States sitting as a court of law in the judicial dis- trict in which the carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, alleging such violation or dis- obedience as the case may be; and said court shall by its order then fix a time and place for the trial of said cause, which shall not be less than twenty nor more than forty days from the time said order is made, and it shall be the duty of the marshal of the district in which said proceeding is pending to forthwith serve a copy of said petition, and of said order, upon each of the defend- ants, and it shall be the duty of the defend- ants to file their answers to said petition within ten days after the service of the same upon them as aforesaid. At the trial the findings of fact of said commission as set forth in its report shall be prima facie evi- dence of the matters therein stated, and if either party shall demand a jui-y or shall omit to waive a jury the court shall, by its order, direct the marshal forthwith to sum- mon a jury to try the cause; but if all the parties shall waive a jury in writing then the court shall try the issues in said cause and render its judgment thereon. If the subject in dispute shall be of the value of two thousand dollars or more either party may appeal to the supreme couii: of the Unit- ed States under the same reg-ulations now provided by law in respect to security for such appeal; but such appeal must be taken within twenty days from the day of the ren- dition of the judgment of said circuit court. If the judgment of the circuit court shall be in favor of the party complaining he or they shall be entitled to recover a reasonable counsel or attorney's fee, to be fijced by the court, which shall be collected as part of the costs in the case. For the purposes of this act, excepting its penal provisions, the cir- cuit courts of the United States shall be deem- ed to be always in session. Sec. 17. (As amended March 2, 1889.) That the commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. A majority of the commission shall constitute a quorum for the transaction of business, but no commissioner shall par- ticipate in any hearing or proceeding In which he has any pecuniary interest. Said commission may, from time to time, make or amend such general rules or orders as may be requisite for the order and regula- tion of proceedings before it, including forms of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. Any party may appear before said commis- sion and be heard, in person or by attorney. Every vote and ofiicial act of the commis- sion shall be entered of record, and its pro- ceedings shall be public upon the request of either party interested. Said commission shall have an official seal, which shall be ju- dicially noticed. Either of the members of the commission may administer oaths and affirmations and sign subpoenas. Sec. 18. (As amended.) That each commis- sioner shall receive an annual salary of sev- en thousand five hundred dollars, payable in the same manner as the judges of the courts of the United States. The commission shall appoint a secretary, who shall receive an an- nual salary of three thousand five hundred dollars, payable in like manner. The com- mission shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper per- formance of its duties. Until otherwise pro- vided by law, the commission may hive suitable ofiices for its use, and shall have authority to procure all necessary office sup- 186 INTEKSTATE COMMERCE ACT. plies. Witnesses summoned before the com- mission shall be paid the same fees and mile- age that are paid witnesses in the courts of the United States. All of the expenses of the commission, in- cluding all necessaiy expenses for transpor- tation incurred by the commissioners, or by their employees under their orders, in making any investigation, or upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized vouch- ers therefor approved by the chairman of the commission. Sec. 19. That the principal office of the com- mission shall be in the city of Washington, where its general sessions shall be held; but whenever the convenience of the public or the parties may be promoted or delay or ex- pense prevented thereby, the commission may hold special sessions in any part of the United States. It may, by one or more of the commissioners, prosecute any inquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any com- mon carrier subject to the provisions of this p.ct. Sec. 20. That the commission is hereby au- thorized to require annual reports from all common carriers subject to the provisions of this act, to fix the time and prescribe the manner in which such reports shall be made, and to require from such carriers specific an- swers to all questions upon which the com- mission may need information. Such an- nual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same; the dividends paid, the surplus fund, if any, and the number of stockholders; the funded and floating debts and the interest paid thereon; the cost and value of the car- rier's property, franchises, and equipments; the number of employees and the salaries paid each class; the amounts expended for improvements each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources; the operating and other expenses; the balances of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an annual balance-sheet. Such re- jwrts shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, aiTange- ments, or contracts with other common car- riers, as the commission may require; and the said commission may, within its discre- tion, for the purpose of enabling it the bet- ter to carry out the purposes of this act, prescribe (if in the opinion of the commis- sion it is practicable to prescribe such uni- formity and methods of keeping accounts) a period of time within which all common carriers subject to the provisions of this act shall have, as near as may be, a uniform system of accounts, and the manner in whicti such accounts shall be kept. Sec. 21. (As amended March 2, 1889.) That the commission shall, on or before the first day of December in each year, make a re- port, which shall be transmitted to congress, and copies of which shall be distributed as are the other reports transmitted to congress. This report shall contain such information and data collected by the commission as may be considered of value in the determination of questions connected with the regulation of commerce, together, with such recommen- dations as to additional legislation relating thereto as the commission may deem neces- sary; and the names and compensations of the persons employed by said commission. Sec. 22. (As amended March 2, 1889, and Febraary 8, 1895.) That nothing in this act shall prevent the carriage, storage, or hand- ling of property free or at reduced rates for the United States, state, or municipal gov- ernments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents employ- ed in such transportation, or the issuance of mileage, excursion, or commutation passen- ger tickets; nothing in this act shall be con- strued to prohibit any common carrier from giving reduced rates to ministers of religion,, or to municipal governments for the trans- portation of indigent persons, or to inmates of the national homes or state homes for disabled volunteer soldiers, and of soldiers' and sailors' orphan homes, including those about to enter and those returning home aft- er discharge, under arrangements with the boards of managers of said homes; noth- ing in this act shall be construed to prevent railroads from giving free carriage to their own officers and employees, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employees; and nothing in this act contained shall in any way abridge or alter the remedies now existing at com- mon law or by statute, but the provisions of this act are in addition to such remedies: provided, that no pending litigation shall in any way be affected by this act: provided further, that nothing in this act shall prevent the issuance of joint interchangeable flve- thousand-mile tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of one thou- sand or more miles. But before any com- mon carrier, subject to the provisions of this act, shall issue any such joint interchange- able mileage tickets with special privileges, as aforesaid, it shall file with the interstate commerce commission copies of the joint tar- iifs of rates, fares, or charges on which such joint interchangeable mileage tickets are to- be based, together with specifications of the amoimt of free baggage permitted to be car- INTERSTATE COMMERCE ACT. 187 ried under such tickets, in the same manner as common carriers are required to do with regard to other joint rates by section six of this act; and all. the provisions of said sec- tion six relating to joint rates, fares, and charges shall be observed by said common carriers and enforced by the Interstate com- merce commission as fully with regard to such joint interchangeable mileage tickets as with regard to other Joint rates, fares, and charges referred to in said section six. It shall be unlawful for any common car- rier that has issued or authorized to be is- sued any such joint interchangeable mileage tickets to demand, collect, or receive from any person or persons a greater or less com- pensation for transportation of persons or baggage under such joint interchangeable mileage tickets than that required by the rate, fare, or charge specified in the copies of the joint tariff of rates, fares, or charges filed with the commission in force at the time. The provisions of section ten of this act shall apply to any violation of the re- quirements of this proviso. NEW SECTION (Added March 2, 1889). That the circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the re- lator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar condi- tions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to fur- nish cars or other facilities for transporta- tion for the party applying for the writ: provided, that if any question of fact as to the proper compensation to the common car- rier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwith- standing such question of fact is undeter- mined, upon such terms as to security, pay- ment of money into the court, or otherwise, as the court may think proper, pending the determination of the question of fact: pro- vided, that the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement. Public Act No. 41, approved February 4, 18S7, as amended by Public Acts No. 125, ap- proved March 2, 1889, No. 72, approved Feb- ruary 10, 1891, and No. 38, approved Febru- ary 8, 1895. An act in relation to testimony before the in- terstate commerce .commission, and in cases or proceedings under or connected with an act entitled "An act to regulate commerce," approved February foui-th, eighteen hundred and eighty-seven, and amendments thereto. Be it enacted by the senate and house of representatives of the United States of Ameri- ca in congress assembled, that no person shall be excused from attending and testi- fying or from producing books, papers, tar- iffs, contracts, agreements and documents before the interstate, commerce commission or in obedience to the subpoena of the com- mission, whether such subpoena be signed or issued by one or more commissioners, or in •any cause or proceeding, criminal or other- wise, based upon or growing out of any al- leged violation of the act of congress, en- titled "An act to regulate commerce," ap- proved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prose- cuted or subjected to any penalty or for- feiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to Its subpoena or the subpoena of either of them, or in any such case or pro- ceeding: provided, that no person so testi- fying shall be exempt from prosecution and punishment for perjury committed in so tes- tifying. Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements and documents, if in his power to do so, in obedience to the sub- poena or lawful requirement of the commis- sion shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five thousand .dollars, or by imprisonment for not more than one year or by both such fine and imprisonment. Public Act No. 54, approved February 11, 1893. An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate com- merce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlaw- ful for any common carrier engaged in in- terstate commerce by railroad to use on its line any locomotive engine in moving inter- state traffic not equipped with a power driv- 188 INTERSTATE COMMERCE ACT. ing-wheel brake and appliances for operat- ing the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equip- ped with power or train brakes that the en- gineer on the locomotive drawing such ti-ain can control its speed without requiring brake- men to use the common hand brake for that purpose. Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any ear used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men go- ing between the ends of the cars. Sec. 3. That when any person, firm, com- pany, or corporation engaged in interstate commerce by railroad shall have equipped a sufficient number of its cars so as to comply with the provisions of section one of this act, It may lawfully refuse to receive from con- necting lines of road or shippers any cars not equipped sufficiently, in accordance with the first section of this act, with such power or train brakes as will work and readily inter- change with the brakes in use on its own cars, as required by this act. Sec. 4. That from and after the first day of July, eighteen hundred and ninety -five, un- til otherwise ordered by the interstate com- merce commission, it shall be unlawful for any railroad company to use any car in Inter- state commerce that is not provided with se- cure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars. Sec. 5. That within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the interstate commerce commission the standard height of drawbars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the drawbars, for each of the several gauges of railroads in use in the Unifed States, and shall fix a maximum variation from such standard height to be allowed between the drawbars of empty and loaded cars. Upon their determination being certified to the in- teretate commerce commission, said commis- sion shall at once give notice of the standard fixed upon to all common carriers, owners, or lessees engaged in interstate commerce in the United States by such means as the com- mission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the interstate commerce commission to do so, be- fore July first, eighteen hundred and ninety- four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars, either load- ed or unloaded, shall be used in interstate traffic which do not comply with the stand- ard above provided for. Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a pen- alty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction In the locality where such violation shall have been committed, and it shall be the duty of such district attorney to bring such suits up- on duly verified information being lodged with him of such violation having occurred. And it shall also be the duty of the interstate commerce commission to lodge with the prop- er district attorneys information of any such violations as may come to its knowledge: provided, that nothing in this act contained shall apply to trains composed of four-wheel cars or to locomotives used in hauling such trains. Sec. 7. That the Interstate commerce com- mission may from time to time upon full hearing and for good cause extend the period within which any common cairier shall com- ply with the provisions of this act. Sec. S. That any employee of any such com- mon carrier who may be injured by any loco- motive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby oc- casioned, although continviing in the employ- ment of such can-ier after the unlawful use of such locomotive, ear, or train had been brought to his knowledge. Public Act No. 113, approved March 2, 1893. An act supplementary to the act of July first, eighteen hundred and sixty-two, entitled "An act to aid in the construction of a railroad and telegraph line from the Mis- souri river to the Pacific Ocean, and to se- cure to the government the use of the same for postal, military, and other purposes," and also of the act of July second, eighteen hundred and sixty-four, and other acts amendatory of said first-named act. Be it enacted by the senate and house of representatives of the United States of Amer- ica in congress assembled, that all railroad and telegraph companies to which the United States has granted any subsidy in lands or bonds or loan of credit for the eonsti-uction of either railroad or telegraph lines, which, by the acts incorporating them, or by any act amendatory or supplementai-y thereto, are re- quired to construct, maintain, or operate tele- graph lines, and all companies engaged in operating said railroad or telegraph lines shall forthwith and henceforward, by and through their own respective corporate officers and employees, maintain, and operate, for rail- road, govermental, commercial, and all other purposes, telegraph lines, and exercise by themselves alone all the telegraph franchises conferred upon them and obligations assumed INTERSTATE COMMENCE ACT. 189' by them under the acts making the grants as aforesaid. Sec. 2. That whenever any telegraph com- pany which shall have accepted the provi- sions of title sixty-five of the Revised Stat- utes shall extend its line to any station or oflice of a telegraph line belonging to any one of said railroad or telegraph companies, re- ferred to in the first section of this act, said telegraph company so extending its line shall have the right and said railroad or telegraph company shall allow the line of said tele- graph company so extending its line to con- nect with the telegraph line of said railroad or telegraph company to which it is extended at the place where their lines may meet, for the prompt and convenient interchange of telegraph business between said companies; and such railroad and telegraph companies, referred to in the first section of this act, shall so operate their respective telegi'aph lines as to afford equal facilities to all, with- out discrimination in favor of or again.st any person, company, or corporation whatever, and shall receive, deliver, and exchange busi- ness with connecting telegraph lines on equal terms, and affording equal facilities, and without discrimination for or against any one of such connecting lines; and such exchange of business shall be on terms just and equita- ble. Sec. 3. That if any such railroad or tele- graph company referred to in the first section of this act, or company operating such rail- road or telegraph line shall refuse or fail, in whole or in part, to maintain, and operate a telegraph line as provided in this act and acts to which this is supplementary, for the use of the government or the public, for com- mercial and other purposes, without discrim- ination, or shall refuse or fail to make or con- tinue such arrangements for the interchange of business with any connecting telegraph company, then any person, company, corpo- ration, or connecting telegraph company may apply for relief to the interstate commerce commission, whose duty it shall thereupon be, undei' such rules and regulations as said commission may prescribe, to ascertain the facts, and determine and order what arrange- ment is proper to be made in the particular case, and the railroad or telegraph company concerned shall abide by and perform such order; and it shall be the duty of the in- terstate commerce commission, when such determination and order are made, to notify the parties concerned, and, if necessary, en- force the same by writ of mandamus in the courts of the United States, in the name of the United States, at the relation of either of said interstate commerce commissioners: pro- vided, that the said commissioners may in- stitute any inquiry, upon their own motion, in the same manner and to the same effect as though complaint had been made. Sec. 4. That in order to secure and preserve to the United States the full value and bene- fit of its liens upon all the telegraph lines re- quired to be constructed by and lawfully be- longing to said railroad and telegraph com- panies referred to in the first section of this act, and to have the same possessed, used, and operated in conformity with the provi- sions of this act and of the several acts to which this act is supplementary, it is hereby made the duty of the attorney-general of the United States, by proper proceedings, to pre- vent any unlawful interference with the rights and equities of the United States un- der this act, and under the acts hereinbefore mentioned, and under all acts of congress re- lating to such railroads and telegraph lines, and to have legally ascertained and finally adjudicated all alleged rights of all persons and coriJirations whatever claiming in any manner any control or interest of any kind in any telegraph lines or property, or exclusive rights of way upon the lands of said railroad companies, or any of them, and to have all contracts and provisions of contracts set aside and annulled which have been unlawfully and beyond their powers entered into by said raih'oad or telegraph companies, or any of them, with any other person, company, or corporation. Sec. 5. That any officer or agent of said railroad or telegraph companies, or of any company operating the railroads and tele- graph lines of said companies, who shall re- fuse or fail to operate the telegraph lines of said railroad or telegraph companies under his control, or which he is engaged in operat- ing, in the manner directed in this act and by the acts to which it is supplementary, or who shall refuse or fail, in such operation and use, to afford and secure to the government and the public equal facilities, or to secure to each of said connecting telegraph lines equal advantages and facilities in the intei'- change of business, as herein provided for, without any discrimination whatever for or adverse to the telegraph line of any or either of said connecting companies, or shall refuse to abide by, or perform and carry out within a reasonable time the order or orders of the interstate commerce commission, shall in every such case of refusal or failure be guilty of a misdemeanor, and, on conviction there- of, shall in every such case be fined in a sum not exceeding one thousand dollars, and may be imprisoned not less than six months; and in every such case of refusal or failure the party aggrieved may not only cause the officer or agent guilty thereof to be prosecut- ed under the provisions of this section, but may also bring an action for the damages sustained thereby against the company whose officer or agent may be guilty thereof, in the circuit or district court of the United States in any state or territory in which any por- tion of the road or telegraph line of said com- pany may be situated; and in case of suit process may be served upon any agent of the company found in such state or territory, and such service shall be held by the court good and sufficient 190 INTERSTATE COMMERCE ACT. Sec. 0. That it shall be the duty of each and every one of the aforesaid railroad and telegi-aph companies, within sixty days from and after the passage of this act, to file -with the interstate commerce commission copies of all contracts and agreements of every de- scription existing between it and every other person or corporation whatsoever in refer- ence to the ownership, possession, main- tenance, control, use, or operation of any tele- graph lines, or property over or upon its rights of way, and also a report describing with suf- ficient certainty the telegraph lines and prop- erty belonging to it. and the manner in which the same are being then used and operated by it, and the telegraph lines and property upon its right of way in which any other per- son or coiTporation claims to have a title or interest, and setting forth the grounds of such claim, and the manner in which the same are being then used and operated; and it shall be the duty of each and every one of said railroad and telegraph companies annu- ally hereafter to report to the interstate com- merce commission, with reasonable fullness and certainty, the nature, extent, value, and condition of the telegraph lines and property then belonging to it, the gross earnings, and all expenses of maintenance, use, and opera- tion thereof, and its relation and business with all connecting telegraph companies dur- ing the preceding year, at such time and in such manner as may be required by a sys- tem of reports which said commission shall prescribe; and if any of said railroad or tele- graph companies shall refuse or fail to make such reports or any report as may be called £oT by said commission, or refuse to submit its books and records for inspection, such neglect or refusal shall operate as a forfei- ture, in each case of such neglect or refusal, of a sum not less than one thousand dollars nor more than five thousand doUai'S, to be recovered by the attorney-general of the Unit- ed States, in the name and for the use and benefit of the United States; and it shall be the duty of the interstate commerce commis- sion to inform the attorney-general of all such cases of neglect or refusal, whose duty it shall be to proceed at once to judicially en- force the forfeitures hereinbefore provided. Sec. 7. That nothing in this act shall be construed to affect or impair the right of con- gress, at any time hereafter, to alter, amend, or repeal the said acts hereinbefore mention- ed; and this act shall be subject to altera- tion, amendment, or repeal as, in the opinion of congress, justice or the public welfare may require; and nothing herein contained shall be held to deny, exclude, or impair any right or remedy in the premises now existing in the United States, or any authority that the postmaster-general now has under title sixty- five of the Revised Statutes to fix rates, or, of the government, to purchase lines as provid- ed imder said title, or to have its messages given precedence in transmission. Public Act No. 237, approved August 7, 1888. The foregoing act, of February 11, 1893, is a valid exercise of legislative power in providing for the compulsory disclosure of criminating evi- dence. As it protects the witness from any criminal prosecution, the fifth amendment is not violated. Brown v. Walker (1896) 161 U. S. 591, 16 Sup. Ct. 644; distinguishmg Counsel- man V.Hitchcock, 142 U.S. 547, 12 Sup. Ct. 195. SHEKMAN ANTI-TEUST ACT. 191 "THE SHERMAN ANTI-TRUST ACT." (2(3 Stat. 209.) An act to protect trade and commerce against unlawful restraints and monopolies. Be it enacted b.y the senate and house of representatives of the United States of Amer- ica in congress assembled: Section 1. Every contract, combination in the form of trust or othervcise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is here- by declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deem- ed guilty of a misdemeanor, and, on convic- tion thereof, shall be punished by fine not ex- ceeding five thousand dollars, or by imprison- ment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 2. Every person who shall monopolize, or attempt to monopolize or combine or con- spire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign na- tions, shall be deemed guilty of a misdemean- or, and on conviction thereof shall be punish- ed by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court See. 3. Every contract, combination in form of. trust or otherwise, or conspiracy, in re- straint of trade or commerce in any territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such territory and another, or between any such territory or territories and any state or states or the District of Columbia, or with foreign nations, or between the Dis- trict of Columbia and any state or states or foreign nations, is hereby declared illegal. Every person who shall make any such con- tract or engage in any such combination or conspiracy shall be deemed guilty of a misde- meanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 4. The several circuit courts of the United States are hereby invested with juris- diction to prevent and restrain violations of this act; and it shall be the duty of the sev- eral district attorneys of the United States, in their respective districts, under the direc- tion of the attorney-general, to institute pro- ceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and pi-aying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been dul.y notified of such petition the court shall proceed, as soon as may be, to the hearing and determina- tion of the case; and pending such petition and before final decree the court may at any time make such temporally restraining order or prohibition as shall be deemed just in the premises. Sec. 5. Whenever it shall appear to the court before wliich any proceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof. Sec. 6. Any property owned under any con- tract or by any combination, or pursuant to any conspiracy (and being the subject there- of) mentioned in section one of this act, and being in the course of transportation from one state to another, or to a foreign country, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure and condemnation of property import- ed into the United States contrary to law. Sec. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything, forbid- den or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the de- fendant resides or Is found, without respect to the amount in controversy, and shall re- cover three fold the damages by him sus- tained, and the costs of suit, including a rea- sonable attorney's fee. Sec. 8. that the word "person" or "persons" wherever used in this act shall be deemed to Include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the terri- tories, the laws of any state, or the laws of any foreign country. Approved July 2, 1890. This act gives the courts power to restrain, by injunction, violations of its provisions by com- bination of railroad employes to obstruct rail- road commeire U. S. v. Debs, 64 Fed. 724. Cf. In re Debs, 158 U. S. 564, 15 Sup. Ct. 900. 192 lUTEUSTATE COMMERCE. Purpose of Act. Just discriminations and reasonable preferences are still permit- ted. Party-rate tickets. English Bailway and Canal Traffic Act. TJudue pref- erences. Scalpers. INTERSTATE COMMERCE COMMISSION T. BALTIMORE & OHIO R. R. CO. (145 U S. 263, 12 Sup. Ct. 844.) Supreme Court of the United States. May- IB, 1892. Appeal from the circnit court of the United States for the southern district of Ohio. Bill by the Interstate Commerce Cora- mission to enjoin the Baltimore & Ohio Railroad Company from continuing to violate an order of the commission requir- ing it to desist from using "partj- rate" tickets. The bill was dismissed in the cir- cuit court. 43 Fed. Rep. 37. The commis- sion appeals. Affirmed. STATEMENT BY MR. JUSTICR BROWN. This proceeding was originally insti- tuted by the filing of a petition before the Interstate Commerce Commission by the Pittsburg, Cincinnati & St. Louis Railway Company against the Baltimore & Ohio Railroad Company, to compel the latter to withdraw from its lines of road, upon which business competitive with that of the petitioner was transacted, the so- called "party rates," and to decline to give such rates in future upon such lines of road ; also for an order requiring said company to discontinue the practice of selling excursion tickets at less than the regular rate,unless such rates were posted in its offices, as required by law. The petition set forth that the two roads were competitors from Pittsburg westward; that the Baltimore & Ohio road had in operation upon its competing lines of road so-called "party rates," whereby "parties of ten or more persons traveling together on one ticket will be transported over said lines of road between stations located thereon at two cents per raUe per capitii, which is less than the rate for a single per- son ; said rate for a single person being about three cents per mile." There was another charge that the de- fendant was in the habit of selling excur- sion tickets without posting its rates for the same in its offices, but this charge watt subsequently abandoned. The answer of the Baltimore&Ohio Rail- road Company admitted that it had at one time in effect the so-called "party rates," but prior to the filing*'of the com- plaint had withdrawn said rates, not that it believed that they were illegal, but be- cause it was claimed by other companies that said rates were put into effect in vio- lation of an agreement between companies belonging to a certain association of which defendant was a member. It fur- ther averred that said rates were in no way a violation of the act to regulate commerce, and werean accommodation to the public, necessary to the business of theatrical and other amusement compa- nies, and that, when the legality of such rates was properly raised tor decision, it was prepared to defend the legality of the same. The answer furtlier denied the right of the complainant to institute the proceeding, and prayed thatthe complaint might be dismissed. The cause was heard before the commis- sion, which found "that so-called 'party rate' tickets, sold at reduced rates, and entitling a number of persons to travel to- gether on a single ticket or otherwise, are not commutation tickets, within the mean- ing of section 22 of the act to regulate commerce, and that, when the ratt's at which such tickets for parties are sold are lower for each member of the party than rates contemporaneously charged for the transportation of single passengers be- tween the same points, they constitute unjust discrimination, and are therefore il- legal." It was ordered and adjudged "that the defendant, the Baltimore and Ohio Railroad Company, do forthwith wholly and immediately cease and desist from charging rates for the transportation over its lines of a number of persons trav- eling together in one party which are less for each person than rates contemporane- ously charged by said defendant under schedules lawfully in effect for the trans- portation of singlepassengers between the same points. " The defendant road having refused to obey this mandate, the commission, on May 1, 1890, pursuant to section 16 of the interstate commerce act, filed this bill in the circuit court of the United States for the southern district of Ohio for a writ of injunction to restrain the defendant, -from continuing in its violation of the order of the commission. The bill set up the pro- ceedings which had theretofore been taken before the commission, and set forth as its gravamen that the defendant had wholly disregarded and set at naught the author- ity and order of the commission in that regard, and had willfully and knowingly disobeyed said order, and had not ceased and desisted from allowing party rates as it had been ordered to do, and had upon divers occasions since the service of said order charged rates for the transportation over its lines of a number of persons trav- elinc together in one party which were less for each person than rates contempo- raneously charged under schedules law- fully in effect between the same points for the transportation of persons, citing a number of instances of such disobedience. The answer admitted the proceedings set forth in the bill, but denied that it bad been made to appear to the commission that defendant had violated the provisions of the act to regulate commerce, or that the commission had duly and legally de- termined the matters and things in con- troversy and at issue between theparties; and averred that several of the conclu- sions of tact stated in the report of the commission were not true, or justified by the evidence produced at the bearing; and that the conclusions of law contained in the report, and the interpretation therein given to the act, were not correct. It ad- mitted that it had not wholly ceased charging rates for transportation over its lines for a number of passengers traveling together in one party upon one ticket, which are less for each person than rates contemporaneously charged by it for the transportation of single passengers be- INTERSTATE COMMERCE. 193 tween the sarnR points, and admitted a violation of tlio order of tlie commission. Tiie seventh and -eishth paragraphs of the answer are the material ones, and are here given in full: "(7) That for many years prior to the passage of the said 'act to regulate com- merce,' all the railroad carriers in the United States had hal)itiially made a rate of charge for passengers making frequent trips, trips for long distances, and trips in parties of ten or more, lower than the regular single fare charged betvreen the same points, and such lower rates were universally made at the date of the pas- sage of said act. To carry on this uni- versal practice manyforras of tickets were employed to enable different classes of passengers to enjoy these lower rates, and so stimulate travel. To meet tlie needs of the commercial traveler the thousand-mile ticket was used ; to meet the needs of the suburban resident or fre- quent traveler, several forms of tickets were used, e. g., monthly or quarterly tickets, good for any number of trips within the specified time, and ten, twenty- five, or fifty trip tickets, good for the specified number of trips by one person, or for one trip by the specified number of persons; to accommodate parties of ten or more, a single ticket, one way or round trip, for the wholeparty, was made up by the agent on a skeleton form furnished for the purpose; to accommodate excursion- ists traveling in numbers too large to use a single ticket, special individual tickets were issued to each person. Tickets good for a specified number of trips were issued also between cities where travel was fre- quent. In short, it was an established principle of the l)iisines8 that whenever the amount of travel more than made up to the carrier for reduction of the charge per capita, then such reduction was rea- sonable and just in the interests both of the carrier and of the public. Long ex- perience has proved the soundness of the principle. Under its application grew ui) the business of commercial travelers, the enormous suburban business, the con- stant travel between large cities, and the excursion business. Under its application has grown up also the business of travel- ing companies or parties, which has reached an aggregate of many hundreds of thousands of dollars, and which de- pends for its existence upon a continu- ance of the transportation rates under which it has grown up. " (8) That since the passage of the said 'act to regulate commerce' this respond- ent has continued as theretofore the prac- tice above stated of making a lower charge on passenger travel, in considera- tion of the amount and frequency of the travel, and with that purpose, and to accommodate the various classes of pas- spngers, it has continued in use all the forms of ticket described in the next pre- ceding section. That the charge fixed by it for the transportation of parties of ten or more, on a single ticttet, has been two cents per mile per capita, which is the same rate cliarged on thousand-mile tick- ets, and is a higher rate than it charges on long distance passenger travel and ex- cursion travel, and higher than its gen- BAl.DW.SEIj.CA8.B.n. — 13 eral rate for suburban travel on time or other suburban tickets. That the saidi charge for the transportation of parties on a single ticket is just and reasonable, affording a fair compensation to tlie car- rier, and for the best interests both of the carrier and of the public, because any higher rate would destroy the business. That the business reasons, circumstances, and conditions which induced this re- spondent to make sucli lower charge for the transportation of parties as aforesaid, and that make it the interest of this re- spondent as a carrier to make such lower charge, are precisely the same reasons, circumstances, and conditions that induce it and make it its interest to fix a lower charge for the transportation of passen- gers buying mileage tickets, time or trip tickets, and excursionists. That while so-called 'party rate' tickets are used principally by traveling amusement com- panies, because no other form of ticket meets the requirement of such companies, yet this respondent has avoided confining such tickets to any class of business, by offering them on the same terms to the public at large. That this respondent has obviated the danger that such lower charge for parties might be taken advan- tage of by speculators or ticket brokers, by issuing only one ticket for the whole party. And respondent avers that as such tickets are now issued by it they are not and cannot be used for speculative purposes, and afford no opportunity for evading the law in the hands of ticket brokers. This respondent further avers that it may rightly and legally make a Charge per capita for persons traveling on said party rate tickets, lower than its charge for a single passenger making one trip between the same points, the charac- ter, circumstances, and conditions of the service being substantially different; and that the making of such lower charge per capita to the member of the party makes ^- or gives no undue or unreasonable prefer-'^ ence or advantage to him, and subjects no person, company, firm, corporation, or locality, or particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." Theanswer further averred the illegality of the order of the commission, and averred " that by the true construction of the act the second section thereof requires the same charge for transportation service only in cases where the commercial circumstances and conditions are sub- stantially similar, and the third section requires the same charge to be made only when a difference in charge would work a prejudice or disadvantage to some one without reason therefor; that the twenty- second section, so far from making excep- tions to an otherwise absolute rule, was inserted merely ae additional precaution to insure the giving to the second and third sections of the act the construction wliich congress intended ; that the twen- ty-second section is a legislative declara- tion ; that under the provisions of the sec- ond section of the act circumstances and conditions of a commercial nature are to be considered, and among such circum- stances and conditions, in the case of pas- 194 INTEKSTATE COMiMEECE. ■senger traffic, the amount of service pur- cliased or contractecl for, and the interest V)f the carrier in stimulating travel, are to be considered. " Upon the hearing before the clrciiitcourt iipon pleadings and proofs the bill was ■dismissed, separate opinions being de- livered by Judges Jackson and Sagk. 43 Ped. Eep. 37. From this decree the Inter- state Commerce Comiiiisaion appealed to this court. The provisions of the inter- state commerce act, so far as tlie same are material to this case, are set forth In the margin. 1 S. Shelhibarg-er, J. M. Wilson, and A. G. 'an act to kesulate commeuoe. "Section 1. That the provisions of this act shall apply to any common carrier or carriers engaged in the transportation of passengers' or property -wholly by railroad, or partly by railroad and partly by water, when both are used, under a common control, management, or arrangement, for a continuous carriage.of shipment. * * * "All charges made for any service rendered or to be rendered in the transportation of passen- gers or property as aforesaid, or in connection therewith, or for the receiving, delivering, stor- age, or handling of such property, stiall be reason- able and just; and every unjust and unreasona- ble charge for such service is prohibited and de- clared to be unlawful. "Sec. 2. That if any common carrier subject to the provisions of this act shall, directly or in- directly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or re- . ceive from any persou or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property, subject to the provisions of this act than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of trafflc un- der substantially similar circumstances and con- ditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. "8ec. 3. That it shall be unlawful for any com- mon carrier subject to the provisions of this act to make or give any undue or unreasonable pref- erence or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic in any respect 'whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. " "iSec. 22, (as amended by section 9 of act of March S, 1889, c. 382, 25 St. pp. 8.55, 862.) That nothing in this act shall prevent the carriage, storage, or handling of property free or at re- duced rates for the United States, state, or mu- nicipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the free carriage of destitute and homeless persons transported by charitable soci- eties, and the necessary agents employed in such transportation, or the issuance of mileage, ex- cursion, or commutation passenger tickets; noth- ing in this act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion, or to municipal go\'Brn- TTients for the transportation of indigent per- sons, or to inmates of the national homes or state homes for disabled volunteer soldiers, and of sol- diers' and sailors' orphan homes, including those about to enter and those returning home after discharge, under arrangements with the boards of managers of said homes; nothing in this act shall be construed to prevent railroads from giv- ing free carriage to their own officers and em- ployes, or prevent the principal oifioers of any railroad company or companies from exchanging Safford, for appellant. John K. Cowen anil Hugh L. Bond, Jr., for appellee. Mr. Justice Brown, after stating tlio facts in the foregoing language, delivered the opinion of the court. Prior to the enactment of the act of February 4, 1887, (24St. p. 379,) to regulate commerce, commonly known as the "In- terstate Conmierce Act," railway traffic in this country was regulated by the prin- ciples of the common law applicable to common carriers, which demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for trans- portation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service, — Kailroad Co. v. Gage, 12 Gray, 393; Baxendale v. Railway Co., 4 C. B. (N. S.) 63; Railway Co. v. Sutton, L. R. 4 H. L. 226, 237; Ex parte Benson, IS S. C. 385; Johnson v. Railway Co., 16 Fla. 623, — though rhe weight of authority in this country was in favor of an equality of charge to all persons for similar serv- ices. In several of the states acts had been passed with the design of securing the public against unreasonable and un- just discriinlnation.s; but the inefficacy of these laws beyond the lines of the state, the impossibility of securing concerted ac- tion between the legislatures towards the regulation of traffic between the several states, and the evils which grew up under a policy of unrestricted competition, sug- gested the necessity of legislation by con- gress under its constitutional power to regulate commerce among the several states. These evils ordinarily took the shape of inequality of charges made, or of facilities furnished, and were usually dic- tated by or tolerated for the promotion of the interests of the officers of the corpo- ration or of the corporation itself, or for the Denefit of some favored persons at the expense of others, or of some particular localit.y or community, or of some local trade or commercial connection, or for the destruction or crippling of some rival or hostile line. The principal objects of the intei'state commerce act were to secure just and rea- sonablechargesfortransportation ; to pro- hibit unjust discriminations in the rendi- tion of like services under similar circum- stances and conditions; to prevent undue or unreasonable preferences to persons, corporations, or localities; to inhibit greater compensation for a siiorter than for a longer distance over the same line; and to abolish combinations for the pool- ing of freights. It was not designed, however, to prevent competition between different roads, or to interfere with tlie customary arrangements made by rail- way companies for reduced fares in con- sideration of increased mileage, where passes or tickets with other railroad companies for their oflicers and employes; and nothing in this act contained shall in any way abridge or alter the remedies now existing at "common law or by statute, but the provisions of this act are in addition to such remedies: provided, that no pending litigation shall in any way be affected by this act. " INTERSTATE COMMEUCE. 195 such reduction rlid not operate as an un- just discrimination against otiier persona traveling over tlie road. In other words, it -was not intended to ignore the princi- ple that one can sell at wholesale cheaper than at retail. It is not all discrimina- tions or preferences that fall within the inhibition of the statute,— only such as are unjust or unreasonable. For instance, it would be obviously unjust to charj^e A. a greater sum than B. for a single trip from . Washinston to Pittsburgh; but, if A. agreesnot only to go, but to return by the same route, it is no injustice to B. to per- mit him to do so for a reduced fare, since the services are not alike, nor the circum- stances and conditions substantially sim- ilar, as required by section 2to malse an -unjust discrimination. Indeed, the possi- bility of just discriminations and reason- able preferences is recognized by these sec- tions, in declaring what shall be deemed unjust. We agree, however, with the plaintiff in its contention that a charge may be perfectly reasonable under section 1, and yet may create an unjust discrim- ination or an unreasonable preference un- Franchise tax. Taz on cash in company's treasury; on gross receipts, -with- out distinction as to their source. FARGO V. MICHIGAN. (121 U. S. 230, 7 Sup. Ct. 857.) Supreme Court of the United States. April 4, 1887. In error to the supreme court of the state of Michigan. Ashley Pond, for plaintiil in error. Ed- ward Bacon, for defendant in error. MILLER, J. This is a writ of error to the supreme court of the state of Michigan to bring here for review a decree sustaining a demurrer to the complainant's bill in chan- cery, and dismissing the bill. The complain- ant brought suit as president of the Mer- chants' -Dispatch Transportation Company, averring that said company is a joint-stock association organized and existing under the laws of the state of New York, and by the laws of that state authorized to sue in the name of its president. The bill, so far as it presents the questions on which this court can have jurisdiction, charges as follows: "Second. That, during the year ending with the thirty-first day of December, A. D. 1883, the said transportation company was en- gaged in the business ^of soliciting and con- tracting for the transportation of freight re- quired to be carried over connecting lines of railroad in order to reach its destination; and, for the prosecution of its said business, it had agencies located generally throughout the United States and tha dominion of Cana- da. The said transportation company issued through bills of lading for such freight, and caused the same to be carried by the ap- propriate railroad companies, and, as com- pensation for Its service in the premises, the said transportation company was paid by the said railroad companies a definite proportion of the through rate charged and collected by said companies for the carriage of said freights. "Third. That during the said year the said transportation company was possessed of certain freight cars which were used and run by the railroad companies in whose posses- sion they chanced from time to time to be for the transportation upon their own and con- necting lines of railroad of through freight, principally between the city of New York, in the state of New York, and Boston, in the state of Massachusetts, ard Chicago, in the state of Illinois, and other points and com- mercial centers in the west, north-west, and south-west, without the said state of Michi- gan; that said cars were not used for the carriage of freight between points situate within the said state of Michigan, but wholly for the transportation of freight, either pass- ing through the state, or originating at points without said state and destined to points within, or originating at points within said state and destined to points without; that the said several railroad companies thus making use of said cars, during the said year, paid to the said transportation com- pany as compensation therefor a definite sum per mile for the distance traveled by the said cars over their respective lines. "Fourth. That the said transportation com- pany during the said year was not running or interested in any special fast, through, or other stock, coal, or refrigerator car freight line, or doing business in or running cars over any of the railroads of said state of Michigan otherwise than as in the preceding paragraphs stated. "Fifth. That prior to the first day of April, A. D. 1884, the commissioner of railroads of the state of Michigan transmitted to the said transportation company certain blank forms of a report to be made to him pursuant to the provisions of an act of the legislature of the state of Michigan approved June 5, 1883, entitled An act to provide for the taxa- tion of persons, copartnerships, associations, car-loaning companies, corporations, and fast freight lines engaged in the business of run- ning cars over any of the railroads of this state, and not being exclusively the property of any railroad company paying taxes on their gross receipts,' with the requirement that the said transportation company should make up and return said report to the office of said commissioner on or before the first day of April, 1884, under the penalties of said act; that, on or about said first day of April, in compliance with said demand, but protesting that the same was without au- thority of law, and that said act was invalid, —or, if valid, was not applicable to the said transportation company,— the said transpor- tation company made and filed with said commissioner a report, duly verified, setting forth that the gross amount of the receipts of the said transportation company for the mileage of said cars during said year 1883, while in use in the transportation of freight between points without said state and pass- ing through said state in transit, estimated and prorated according to the mileage of said cars within said state of Michigan while so in use, was the sum of $95,714.50; anji while in the use of transportation of freight from points without to points within said state of Michigan, and from points with- in to points without said state, estimated and prorated according to the mileage of said cars within the state of Michigan while so in use, was the sum of $28,890.01, making in the aggregate the sum of $124,604.51; that during said year it received no moneys what- ever on business done solely within the said state of Michigan and no moneys which were or could be regarded as earned during said year within the limits of said state of Michigan other than as hereinbefore and in said report set forth. "Sixth. That by the terms of said act it is TAXATION. 199 the duty of said commissioner of railroads to make and file witli the auditor general of said state of Michigan, prior to the first day of June each year, a computation based upon the report of each person, association, co- partnei-ship, or corporation taxable thereun- der of the amount of tax to become due from them respectively, and each such person, as- sociation, copartnership, or corporation is re- quired, on or before the first day of July in such year, to pay to the treasurer pt said state of Michigan, up^n the statement of the auditor general thereof, two and one-half per cent. uiDon its gross receipts as computed by the said commissioner of railroads, and de- rived from loaning, renting, or hiring of cars to any railroad or other corporation, associa- tion, copartnership, or party. It was also provided in said act that for the said taxes, and interest thereon, and the penalty im- posed for delay in the payment thereof, the said state should have a lien upon all the property of the person, association, copart- nership, or corporation so taxed, and, in de- fault of the payment of said tax by and within the time so prescribed, the auditor general of said state was authorized to issue his warrant to the sheriff of any county in said state, commanding him to levy the same, together with ten per cent, for his fees, by distress and sale of any of the proijerty of the corporation or party neglecting or re- fusing to pay such tax wherever the same may be found within the county or state. "Seventh. That the said commissioner of railroads has computed and determined that the amount of the gross receipts of the said transportation company under the said act is the said sum of $28,890.01, and that there is due from said transportation company to the state of Michigan, as a tax thereon, the sum of ?722.25, and has transmitted said compu- tation to the said auditor general, and your orator shows that unless said tax is paid by the said transportation company on or be- fore the first day of July, 1884, it will be- come the duty of the said auditor general un- der the said act, and the said auditor gen- eral threatens that he will proceed, to en- force payment of the said tax against said transportation company by the seizure and sale of the property of said transportation company under the provisions of said act. "Eighth. That your orator is advised, and so charges, that the said act as to the said gross receipts of the said transportation com- pany, or of any of its receipts or earnings from the use of its cars, within the state of Michigan, and the transaction of its business in the manner aforesaid, is in violation of the constitution of the United States and void, and that said act is inapplicable to the said transportation company, and inoperative for further reasons appearing upon its face, and that said transportation company is not amenable thereto. "Ninth. That the chief office of the said transportation company for the transaction of corporate business was, during said year, and is, in the city of New York, in the state of New York, and that all the moneys earned by it, as set forth in the second and third paragraphs hereof, were paid to it at its said office; that said company, during said year, had no funds or property whatsoever within the state of Michigan, except cars in transit and office furniture in the possession of agents, and that during said year the said transportation company was subject to tax- ation, and was taxed, on account of its prop- erty and earnings, within and under the laws of the state of New York." The bill then prays for a subpoena against William C. Stevens, auditor general of the state of Michigan, and for an injunction to prevent him from proceeding in the collection of said taxes. To this bill the defendant Stevens demurred, and the circuit court for the county of Washtenaw, in which this suit was brought, overruled that demurrer. From this decree the defendant appealed to the su- preme court of the state, where the judg- ment of the lower court was reversed, the demurrer sustained, and the bill dismissed. To reverse that decree this writ of error was sued out. The contention ot the plaintiff in error is that the statute of Michigan, the material parts of which are recited in the bill, is void as a regulation of commerce among the states, which, by the constitution of the United States, is confided exclusively to con- gress. Article 1, § 8, cl. 3. It will be ob- served that the bill shows that the tax finally assessed by the auditor of state against the ti-ansportation company was for the $28,- 890.01 of the gross receipts which the com- pany had returned to the commissioner as money received for the transportation of freight from points without to points within the state of Michigan, and from points within to points without that state, and that no tax was assessed on the $95,714.50 received for transportation passing entirely through the state to and from other states. There is nothing in the opinion of the su- preme court of the state, which is found in the transcript of the record, to explain this discrimination. There is nothing in the stat- ute of the state on which this tax rests which makes such a distinction, nor is there anything in the commissioner's requirement for a report which suggests it. It must have been, therefore, upon some idea of the au- thorities of the state that the one was inter- state commerce and the other was not, which we are at a loss to comprehend. Freight earned from a point without the state to some point within the state of Michigan as the end of its voyage, and freight carried from some point within that state to other states. Is as much commerce among the states as that which passes entirely through the state from jts point of original shipment to its destination. This is clearly stated and decided in the case ot Reading R. Co. v. 200 TAXATlOJf. Pennsylvania, commonly called the case of the State Freight Tax, 15 Wall. 232, in which it is held that a tax upon freight tali- en up within the state and carried out of it, or taken up without the state and brought within it, is a burden on interstate commerce, and therefore a violation of the constitu- tional provision that congress shall have power to regulate commerce with foreign na- tions and among the several states. And in AVabash Ry. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, it is held that a statute attempt- ing to regulate the rates of compensation for transportation of freight from New York to Peoria, in the state of Illinois, or from Peoria to New York, is a regulation of com- merce among the states. The same principle is established in Ci"andall v. Nevada, 6 Wall. 35. The statute of the state of Michigan of 1883, under which this tax is imposed, is en- titled "An act to provide for the taxation of persons, copartnershiijs, associations, car- loaning companies, coi-porations, and fast freight lines engaged in the business of run- ning cars over any of the i-ailroads of this state, and not being exclusively the property of any railroad company paying taxes on their gross receipts." Sections 1 and 2 re- quire reports to be made to the commissioner of railroads of the gross amount of their re- ceipts for freight earned within the limits of the state from all persons and corporations running railroad cars within the state. The commissioner is by section 4 required to make and file with the auditor general, on the first day of June of each year, a compu- tation of the amount of tax which would be- come due on the first day of July next suc- ceeding from each person, association, or cor- poration liable to pay such taxes. Each one of these is by section 5 required to pay to the state treasurer, upon the statement of the auditor general, • an annual tax of 2% per cent, upon its gross receipts, as computed by the commissioner of railroads. It will thus be seen that the act imposed a tax upon all the gross receipts of the Mer- chants' Dispatch Transportation Company, a corporation under the laws of the state of New York, and with its principal place of business in that state, on account of goods transported by it in the state of Michigan; and the bill states that the company carried no freight the transportation of which was between points exclusively within that state. The subject of the attempts by the states to impose burdens upon what has come to be known as interstate commerce or traffic, and which is called in the constitution of the United States "commerce among the states," by statutes which endeavor to regulate the exercise of that commerce, as to the mode by which it shall be conducted, or by the im- position of taxes upon the articles of com- merce, or upon the transportation of those articles, has been very much agitated of late years. It has received the attentive consid- eration of this court in many cases, and es- pecially within the last five years, and has occupied congress for a time quite as long. The recent act, approved February 4, 1887, en- titled "An act to regulate commerce," passed after many years of effort in that body, is evidence that congress has at last under- taken a duty imposed upon it by the constitu- tion of the United States, in the declaration that it shall have power "to regulate com- merce with foreign nations, and among the several states, and with the Indian tribes." Congress has freely exercised this power so far as relates to commerce with foreign na- tions and with the Indian ti'ibes, but in re- gard to commerce among the several states it has, until this act, refrained from the passage of any very important reg-ulation upon this subject, except perhaps the statutes regulat- ing steam-boats, and their occupation upon the navigable waters of the country. With reference to the utterances of this court, until within a very short time past, as to what constitutes commerce among the several states, and also as to what enact- ments by the state legislatures are in viola- tion of the constitutional provision on that subject, it may be admitted that the court has not always employed the same language, and that all of the judges of the court who have written opinions for it may not have meant precisely the same thing. Still we think the more recent opinion^ of the court have pretty clearly established principles up- on that subject which can be readily applied to most cases requiring the construction of the constitutional provision, and that these recent decisions leave no room to doubt that the statute of Michigan, as Interpreted by its supreme court In the present case, is forbid- den as a regulation of commerce among the jtates, the power to make which is withheld from the state. The whole question has been so fully con- sidered in these decisions, and the cases themselves so carefully reviewed, that it would be doing little more than repeating the language of the arguments used in them to go over the ground agam. The cases of State Freight Tax and State Tax on Railway Gross Receipts, which were considered together, and decided at the December term, 1872, and reported • in 15 Wall. 232-328, present the points in the case now before us perhaps as clearly as any which have been before this court. A statute of the state of Pennsylvania imposed upon all the railroad corporations doing business within that state, as well as steam-boat companies and others engaged in the carrying trade, a specific tax on each 2,000 pounds of freight carried, graduated accord- ing to the articles transported. These were arranged into three classes, on the first of which a tax of two cents per ton was laid, upon the second three cents, and upon the third five cents. The Reading Railroad Com- pany, a party to the suit, in making its re- port under this statute, divided its freight TAXATION. 201 on which the tax was to be levied into two classes; namely, freight transported between points within the state, and freight which •either passed from within the state out of it, ■or from without the state into it. The su- preme court of the state of Pennsylvania •decided that all the freight carried, without regard to its destination, was liable to the tax imposed by the statute. This court, how- ■ever, held that freight carried entirely througli the state from without, and the other class of freight brought into the state from with- out, or carried from within to points without, :all came vinder the description of "commerce among the states," within the meaning of the constitution of the United States; and it held also that freight transported from and to points exclusively within the limits of the state was internal commerce, and not ■commerce among the states. The taxing law of the state was therefore valid as to the lat- ter class of transportation, but with regard to the others it was invalid, because it was interstate commerce, and the state could lay no tax upon it. In that case, which was very thoroughly argued and vei"y fully con- sidered, the case of Crandall v. Nevada, 6 Wall. 35. was cited as showing, in regard to transportation, what was strictly internal commerce of a state and what was Interstate •commerce. The court said: "It is not at all material that the tax is levied upon all freight, as well that which is wholly internal as that ■embarked in interstate trade. We are not at this moment inquiring further than wheth- er taxing goods carried because they are car- Tied, is a regulation of carriage. The state may tax its internal commerce; but, if an act to tax interstate or foreign commerce is unconstitutional, it is not cured by including In its provisions subjects within the domain of the state. Nor is a rule prescribed for •carriage of goods through, out of, or into a state any the less a regulation of transporta- tion because the same rule may be applied to •carriage which is wholly internal. Doubtless a state may regulate its internal commerce as it pleases. If a state chooses to exact condi- tions for allowing the passage or carriage of persons or freight through it into another ■state, the nature of the exaction is not chan- ged by adding to it similar conditions for al- lowing transportation wholly within the state." In the case of Erie Ry. Co. (a corporation •of the state of New York) v. Tennsylvania (decided at the same time) 15 Wall. 282, it appeared that the road of that company was ■constructed for a short distance through a part of the state of Pennsylvania, and that a similar tax was levied upon it for freight carried over its road This was held to be invalid, for the reasons given in the Case of the Reading Road In the other case of State Tax on Railway •Gross Receipts, which was also a suit be- tween the Reading Railway Company and the state of Pennsylvania, an act of the legisla- ture of that state wao relied on which de- clared that, "in addition to the taxes now provided by law, every railroad, canal, and tjansportation company incorporated under the laws of this commonwealth, and not lia- ble to the tax upon income under existing laws, shall pay to the commonwealth a tax of three-fourths of one percentum upon the gross receipts of said company, and the said tax shall be paid semi-annually upon the first days of July and January, commencing on the first day of July 1866." This tax was held to be valid. The grounds upon which it was distinguished from the one in the preceding case upon freight were that, the corporation being a creation of the legislature of Pennsylvania, and holding and enjoying all Its franchises under the author- ity of that state, this was a tax upon the franchises which It derived from the state, and was for that reason within the power of the state, and that, in determining the mode in which the state could tax the fran- chises which it had conferred, it was not limited to a fixed sum upon the value of them, but it could be graduated by and pro- portioned to either the value of the privileges granted, or the extent or results of their ex- ercise. "Very manifestly," said the court, "this is a tax upon the railroad company, measured in amount by the extent of its busi- ness, or the degree to which its franchise is exercised." Another reason given for the dis- tinction is that "the tax is not levied, and, indeed, such a tax cannot be, until the ex- piration of each half year, and until the mon- ey received for freights, and from other sources of income, has actually come into the company's hands. Then it has lost its dis- tinctive character as freight earned, by hav- ing become incorporated into the general mass of the company's property. While it must be conceded that a tax upon interstate trans- portation is invalid, there seems to be no stronger reason for denying the power of a state to tax the fruits of such transportation, after they have become intermingled with the general property of the carrier, than there is for denying her power to tax goods which have been imported, after their original pack- ages have been broken, and after they have been mixed with the mass of personal prop- erty in the country. Brown v. Maryland, 12 Wheat. 419." The distinction between that case, which is mainly relied upon by the supreme court of Michigan in support of its decree, and the one which we now have before us, is very obvious and is two-fold: First. The corpora- tion which was the subject of that taxation was a Pennsylvania corporation having the situs of its business within the state which created it and endowed it with its franchises. Upon these franchises, thus conferred by the state, it was asserted the state had a right to levy a tax. Second This tax was levied upon money in the treasury of the corporation, up- on property within the limits of the state, 202 TAXATIOX. whicli had passed beyond tlie stage of com- pensation for freight, and had become, like any other property or money, liable to taxa- tion by the state. The case before us has neither of these qualities. The corporation upon which this tax is levied, is not a corpora- tion of the state of Michigan, and has never been organized or acknowledged as a cor- poration of that state. The money which it received for freight carried within the state probably never was* within the state, being paid to the company either at the beginning or the end of its route, and certainly at the time the tax was levied it was neither money nor property of the corporation within the state of Michigan. The proposition that the states can, by way of a tax upon business transacted within their limits, or upon the franchises of cor- porations which they have chartered, regulate such business or the affairs of such corpora- tions, has often been set up as a defense to the allegation that the taxation was such an interference with commerce as violated the constitutional provision now under considera- tion. But where the business so taxed is commerce itself, and is commerce among the states or with foreign nations, the con- stitutional provision cannot thereby be evad- ed; nor can the states, by granting fran- chises to corporatioas engaged in the business of the transportation of persons or merchan- dise among them, which is itself interstate commerce, acquire the right to regulate that commerce, either by taxation or in any other way. This is illustrated in the case of Cook v. Pennsylvania, 97 U. S. 566. The state of Pennsylvania, by her laws, had laid a tax upon the amount of sales of goods made by auctioneers, and had so modified and amend- ed this class of taxes that in the end it re- mained a discriminating tax upon goods so sold imported from abroad. This court held that the tax which the auctioneer was re- quired to pay into the treasury was a tax upon the goods sold, and, as this tax was three-quarters of 1 per cent, upon foreign drugs, glass, earthenware, hides, marble- work, and dye-woods, that it was a tax upon the goods so described for the privilege of selling them at auction. The argument was made that this was a tax exclusively upon the business of the auctioneer, which the state had a right to levy. In that case, as in others, it was claimed that the privilege of being an auctioneer, derived from the state by license, was subject to such taxation as the state chose to impose; but the prop- osition was overruled, and this court held that the tax was a regulation of commerce with foreign nations, and that the fact that it was a tax upon the business of an auc- tioneer did not relieve it from the objection arising from the constitutional provision. The same questior arose in the case of Gloucester Periy Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826. That company was a corporation chartered by the state of New Jersey to run a ferry carrying passengers and freight between the town of Gloucester,, in that state, and the city of Philadelphia, in the state of Pennsylvania. It had no piop- erty within the state of Pennsylvania, but it leased a landing-place or wharf in that city for its business. The auditor general and treasurer of the state of Pennsylvania assess- ed a tax upon the capital stock of this cor- poration under the laws of that state, which, the company refused to pay. Its validity was sustained by the state supreme court, and the question was brought to this court by a writ of error. It was insisted that the tax was justliied as a tax upon the business of the corporation, which, it was claimed^ was largely transacted in the city of Phila- delphia. The supreme court of the state, in giving its decision, stated that the single question presented for consideration was whether the company did business within the state of Pennsylvania within the period for- which the taxes were imposed; and it held that it did, because it received and landed passengers and freight at its wharf in th& city of Philadelphia. The argument was. very much urged in this court that the licens- ing of ferries across navigable rivers, whether dividing two states or otherwise, had always been within the control of the states; and that this, being a mere tax upon the business of that corporation carried on largely within the state of Pennsylvania, was within the- power of that state to regulate. But this court held, after an extensive review of the previous cases, that the business of ferrying across a navigable stream between two states was necessarily commerce among the states,. and could not be taxed, as was attempted in that case. In the case of Pickard v. Pullman Southern Car Co., 117 U. S. 34, 6 Sup. Ct. 635 (decided at the last term of the court), it was shown that the legislature of Tennessee had imposed what it called a privilege tax, under the con- stitution of that state, of $50 per annum upon every sleeping car or coach run or used upon a railroad in that state, not owned by the railroad company so running or using it. This, it will be perceived, is very much like the tax in the case before us, except that it is a specific tax of $50 per annum upon the car, instead of a tax upon the gross receipts arising from the use of the car by its owner. In that case, after an exhaustive review of the previous decisions in this class of cases by Mr. Justice Blatchford, who delivered the opinion of the court, it was held that, as these cars were not property located within the state, it was a tax for the privilege of carrying passengers in that class of cars through the state, which was interstate com- merce, and for that reason the tax could not be sustained. Two cases have been decided at the pres- ent term of the court in which these questions have been considered: one of them at least TAXATION. 203 involving the subject now under considera- tion, namely, that of Robbing v. Taxing Dis- trict Shelby Co., 7 Sup. Ct. 592. A statute of that state declarea that "all drummers, and all persons not having a regular licensed house of business in che taxing district, of- fering for sale or selling goods, wares, or merchandise therein by sample, shall be re- quired to pay to the county trustee the sum of ten dollars per week, or twenty-five dol- lai-s per month, for such privilege." Robbins was prosecuted for a violation of this law, and on the trial it appeared that he was a resident and a citizen of Cincinnati, Ohio, who transacted the business of drumming in the taxing district of Shelby county, that is, soliciting trade by the use of samples, for the firm by which he was employed, whose place of business was in Cincinnati, and all the members of which were residents and cit- izens of that city. It was argued in that case, as in the others we have just consider- ed, that the state had a right to tax the business of selling by samples goods to be afterwards delivered, and to impose a tax upon the persons called drummers engaged in that business. It was further insisted that, since the license tax applied to persons re- siding within the state as well as to those who might come from other states to engage in that business, that it was not a tax dis- criminating against other states, or the prod- ucts of other states, and was valid as a tax upon that class of business done within the state. The whole subject is reconsidered again in this case by Mr. Justice Bradley, who delivered the opinion of the court, in which it is held that the business in which Robbins was engaged, namely, that of selling goods by sample, which were in the state of Ohio at the time, and were to be delivered in the city of Memphis, Tennessee, consti- tuted interstate commerce, and that, so far as this tax was to be imposed upon Robbins for doing that kind of business, it was a tax upon interstate commerce, and therefore not within the power of the state to enforce. In the case of Wabash Ry. Co. v. Illinois, 118 U. S. 558, 7 Sup. Ct. 4, the question pre- sented related to a statutory regulation of that state as to compensation for carrying freight. It was held by the supreme court of Illinois to embrace all contracts for transportation by railroad which came into or went out of the state, as well as that which was wholly within its limits; and, although the contro- versy did not arise in regard to a tax upon interstate commerce, yet the general ques- tion was fully considered as to what was in- terstate commerce, and what was commerce exclusively within the state, and how far the former could be thus regulated by a statute of a state. This court held in that case that no statute of a state in regard to the trans- portation of goods over railroads within its borders, which was a part of a continuous voyage to or from points outside of that state, and thus properly interstate commerce, could regulate the compensation to be paid for such transportation; that the carriage of pas- sengers or freight between different points is commerce, and, except where that is whol- ly and exclusively within the limits of a state, it is not subject in its material features to be regulated by the state legislature. In many other cases, — indeed, in the last three cases mentioned,— the whole subject has been fully examined and considered with all the authorities, and especially decisions of this court relating thereto. The result is so clearly against the statute of Michigan, as applied by its supreme court, that we think the judgment of that court cannot stand. The decree of the supreme court of Michigan is reversed, with directions for further pro- ceedings in accordance with this opinion. 204 POWERS OF A EAILROAD COMPANT. Injunction. Motion to dissolve on bill and answer. Buying up control of anoth- er road. Consolidation. Preventing competition. Dissentient stockholder. Farchase of shares to sue on. Power of majority. of tbe defendant, beyond its powers, unlawful ELKINS T. CAMDEN & ATLANTIC R. R. CO. <36 N. J. Eq. 5, 9 Am.& Eng.R.R. Cases, 590.) Court of Chancery of New Jersey, October Term. 1882. Bill for injunction. On motion to dissolve ttle injunction on bill and answer. r. L. Voorhees and B. Williamson, for the motion. D. J. Pancoast, S. H. Grey, and T. N. McCarter, contra. RUNYON, Ch. The bill is filed by William L. Elkins, a stockholder of the Camden & At- lantic Railroad Company, on behalf of him- self and the other stockholders, against the company to restrain it from entering into or executing any agreement with the Philadel- phia & Atlantic City Railway Company, for the purchase by the former of the railroad of the latter company, and from entering into or executing any agreement with William Mas- sey for the purchase by it of his. interest in the latter company, for the purpose of getting control of the road of that company, and from entering into or executing any agreement with any corporation or corporations, person or persons, for the purchase by it of any of the property or stock of the latter company for any purpose not necessary for the proper operation of its own road. The bill states that it is the purpose of the defendant, and its board of directors, in its name and with its funds, either to purchase of the Phila- delphia & Atlantic City Railway Company its railroad, which runs, as does that of the de- fendant, from the city of Camden to Atlantic City, for a very large sum of money, or to purchase of William Massey, who, it alleges, is the owner of the greater part of the stock and property of that company, his interest therein, for the sum of $500,000 over and above certain debts and liabilities of that company, estimated to amount to $200,000, to be assumed and paid by the defendant as a part of the consideration of the purchase; that the terms of the agreement to make the purchase of Massey had already, when the bill was filed, been agreed upon between him and the president of the defendant, and that at a meeting of the board of directors of the defendant, held in Camden on the 29th of May last, a resolution was passed in tavor of the execution of the agreement to purchase from Massey his interest for the before-men- tioned consideration. The bill further states that it is the design of the president and board of directors of the defendant to pur- chase, with the funds, and in the name of the defendant, either the entire property of the Philadelphia & Atlantic City Railway Com- pany, or a controlling interest therein, with a view of uniting the property, business and management of that company with those of the defendant; and it charges that the scheme is foreign to the object and purposes in its character and against the best interests of its stockholders, and that, if executed, it will result in irreparable injury to the com- plainant and the other stockholders of the de- fendant. On the filing of the bill an injunc- tion was issued pursuant to the prayer there- of. The defendant has answered, and now, on the bill and answer, moves to dissolve the injunction. The answer, while it denies that the agreement referred to in the bill is as therein stated, admits that an agreement has been made between the president of the de- fendant, on its behalf, and Massey, for the sale by the latter to the defendant for the con- sideration of $5(X),000, to be paid in the de- fendant's first mortgage bonds, of his stock, bonds and other claims of and against the Philadelphia & Atlantic City Railway Com- pany, and certain rolling stock of his. The following is the property bargained for: First mortgage bonds $224,000 00 Interest unpaid to July 1st, 1882, in- clusive 74 560 00 First mortgage bonds held as collateral se- curity $ 70,400 00 Interest unpaid to July 1st, 1882, in- clusive 27,104 00 $294,560 00 97,504 00 Floating debt $236,344 10 Less bonds held as collateral 70,400 00 165,944 10 Interest on the same to July 1st, 1882, about 27,500 00 Twenty-six hundred shares of stock 130,000 00 Nine locomotives and twenty-seven cars 109,299 47 $824,807 57 The agreement, according to the answer, was by its terms to be of no effect, unless first submitted to and approved by the defendant's board of directors, and then ratified by its stockholders. There was also a provision for the purchase of the property by the defend- ant's president, for himself, or such of the defendant's stockholders as might associate themselves with him or them, in case of the directors or stockholders neglecting or refus- ing to a^pprove of the agreement. That, how- ever, is of no importance in the decision of the question under consideration. The agree- ment was made on the 26th of May last, and was to be carried out on the 1st of July fol- lowing. The answer avers that so far from being an injury to the complainant and the other stockholders of the defendant, the exe- cution of the agreement would be greatly to their advantage, and it avers also that it would be greatly to their advantage if by purchase, lease, uniting or consolidating with the Philadelphia & Atlantic City Railway Company, the defendant could have the man- agement and operation of the railway of that POWERS or A RAILROAD COMPANY. 20.'> company, and use and operate it as a branch or lateral road. The latter road is a rival road. It is a narrow-gauge road, while the defendant's is of the ordinary gauge. The Phaadelphia & Atlantic City Railway Com- pany is insolvent, proceedings for foreclosure and sale of its road under the mortgage (for $500,000) thereon being now in progress in this court, and the road is now, by leave of this court, in the hands of, and operated by, the trustees for the bondholders under that mortgage. It appears, by the answer, that the defendant's board of directors have ap- proved of the agreement in question, and that they do not intend to take any steps to carry it out, unless ratified by the stockholders. But though the answer avers that it is not the intention of the president and directors to act in the matter without the full consent, appro- val and direction of the stockholders, it must be understood that it does not mean to say that they will not act without the consent of all the stockholders, for otherwise the filing of the bill by the complainant, a dissentient stockholder, would have put an end to, the matter, at least until his consent should have been obtained. What it means, undoubtedly, is that they will not act without the consent of the holders of a majority of the stock. It is quite clear that unless the purchase in question can be sustained as a union or con- solidation of the defendant with the other company, it cannot be sustained at all. On its face it is merely the purchase by the de- fendant, as a speculation, of stock and bonds, and floating debt of an insolvent corporation, together with rolling stock which it cannot use on its own road. In that view it is so obviously foreign to the objects for which the defendant was incorporated, so utterly unau- thorized by any law, and so clearly beyond its powers, that no attempt is made in the an- swer, nor was any made on the argument, to sustain it on that ground; but the effort was made to sustain it on the ground that It is, in effect and in fact, a union and consolidation with the rival company, or an acquisition of the road of that company, as a lateral road. And inasmuch as on its face the agreement is neither of those things, it was urged that the court should, if it appears that the proposed purchase is designed merely as means for such union and consolidation or acquisition, have regard to the object and purpose rather than to the means by which they are both ef- fected. By the general railroad law (Revision, p. 930, § 17) and the act of 1880 (P. L. 1880, p. 231), power is given to railroad companies to lease their roads, or any part of them, to any other corporation or corporations of this oi any other state, or to unite and consolidate as well as merge their stock, property and franchises and roads with those of any other company or companies of this or any other state, or to do both; and it is provided that after such lease or consolidation the company acquiring the other's road may use and oper- ate such road, and its own roads, or any of them. The purchase in question here has no reference to the acquisition of the narrow- gauge road by lease. But it is, as before stated, claimed that it is designed to enable the defendant to acquire the control and use of that road. That design is not directly avowed in the answer. It is charged in the bill, however, and is not denied in tlie an- swer, and it is a fair inference from the lat- ter, that such and no other is the design. The object is to obtain ownership of so great a part of the stock, indebtedness and prop- erty of the narrow-gauge company, as to en- able the defendant by means thereof to be- come the purchaser of its property at the foreclosure sale, or to have control of it after such sale in any re-organization of the com- pany. But the acts of the legislature before referred to, while they give the defendant power to unite and* consolidate with the other company, give it no power to purchase the debts of that company or its road, and it has no power to borrow money for either of those purposes. Union and consolidation of two railroad companies are one thing, and the pur- chase by one company of the property and franchises of the other, is another. What the defendant proposes to do is, not to unite and consolidate with the other company, but to purchase the means of controlling the prop- erty and franchises of that company, and for that purpose to borrow half a million dollars on mortgage of its own property and fran- chises. It has no power to borrow money for that purpose, and if it had the money in its treasury it would have no right to use it for that purpose. The purchase of a rival rail- road is (not to speak of public policy) foreign to the objects for which the defendant was in- corporated. Nor can the purchase be regard- ed as within the authority given by the de- fendant's charter to build lateral or branch roads. The charter authorizes the company to construct a railroad (the main line) from the city of Camden, or some point in the county of Camden within a mile of the city, to run to the sea at or near Absecon inlet in Atlantic- county, and two branches from some conven- ient point in the main road, to be determined by the company, one to run to Batsto village in Burlington county, and the other to May's. Landing in Atlantic county. P. L. 1852, p. 265. The narrow-gauge road runs, as before stated, from Camden to Atlantic City. Ob- viously, the acquisition of it cannot be regard- ed as authorized by a grant of power to build branches from the defendant's main line to Batsto and May's Landing. The transaction under consideration must be regarded as an agreement to buy stock and bonds, and unse- cured debt of an insolvent corporation. As such, irrespective of the assumed ulterior ob- ject in the purchase, it is not even suggested that it is legitimate. It does not appear that the rolling stock included in the bargain, and valued therein at $109,000, is to be purcliased for use on the defendant's road, but it is rea- sonable to conclude that it is not, seeing that 206 POWERS OF A RAILROAD COMPANT. it is adapted to the narrow-gauge road, and therefore not to the defendant's. Moreover, it is apparent that the agreement is to be re- garded as a whole, and is so regarded by the defendant. As a purchase with a view to extinguishing competition the transaction is clearly ultra vires. Colles v. Directory Co., 11 Hun, 397. It is urged that to induce this court to inter- fere by injunction in such a case as this, it must appear that the complainant will, if it withholds its prohibition, sustain irreparable injury, and it is insisted that so far from being an injury to the stockholders the proposed purchase will be of very great advantage. It Is also urged that the complainant is a mere volunteer; that he acquired his stock after the negotiations for the purchase in question were begun, and got it for the very purpose of defeating the ^project. To dispose •of the latter objection: It appears that the ■complainant is a stockholder. If, in fact, he acquired his stock at the time and with the design alleged in the answer, that would not affect his right to the relief which he seeks. But those things appea:r only from the aver- ments of the answer, and those averments are not responsive and are therefore no evidence, and if they were they are not verified. As to the former objection: The proceeding in ques- tion is, as before stated, strictly ultra vires. In such a case equity will give such appro- priate relief as may be practicable against the illegal act, and that, too, at the suit of a single stockholder; while on the other hand, it will not interfere in a matter involving no breach of trust but only error of judgment on the part of the representatives of tlie com- pany, even though such error may eventuate In the injury of the stockholders. Potter, Corp. 130-132; High, Inj. § 767; Boone, Coi-p. §§ 148. 149; Kean v. Johnson, 9 N. J. Eq. 401; Gifford v. Railroad Co., 10 N. J. Eq. 171; Beman v. Rufford, 6 Eng. Law & Eq. 106; Grant, Corp. 290; Zabriskie v. Railroad Co., 18 N. J. Eq. 178; BlJick v. Canal Co., 24 N. J. Eq. 455. In a recent case (Hawes v. Water Co., 21 Am. Law Reg. [N. S.] 252) the supreme court of the United States, in laying down the principles governing the class of cases in which a stockholder of a corporation may maintain a suit in equity in his own name, founded on a right of action existing in the corporation itself, and in which it is the ap- propriate complainant, recognized the follow- ing grounds: Where some action is taken or threatened by the managing board of direct- ors or tiTostees of the corporation, which is beyond the authority conferred on them by the charter or other source of organization; or where there is such a fraudulent transac- tion completed or contemplated by the acting managers, in connection with some other party, or among themselves, or with other stockholders, as will result in serious injury to the corporation or to the interests of the other stockholders; or where the board of di- rectors, or a majority of them, are acting for their own interest in a manner destructive of the corporation itself, or of the rights of the other stockholders; or where the majority of the stockholders themselves are oppressively and illegally pursuing a course, in the name of the coi-poration, which is in violation of the rights of the other stockholders, and which can only be restrained by the aid of a court of equity. And the court adds that possibly other cases may arise in which, to prevent ir- remediable injury, or a total failure of justice, the court would be justified in exercising its powers. In the case in hand, the illegal agree- ment has been made, in behalf of the com- pany, by its president, subject to the ap- proval of the directors and stockholders. The directors have already approved of it. It is true they have provided by resolution for the calling of a special meeting of the stoclihold- ers to pass upon it; but the voice of such a meeting could not authorize the project if it be beyond the powers of the corporation. It is enough to warrant the Interference of this court to know that it is the admitted inten- tion of the board to execute the illegal agree- ment, provided the holders of a majority of the stock are favorable to it. The motion to dissolve is denied, with costs. POWERS OF A RAILROAD COMPANY. 207 Mortgage bonds. Fresumption of validity. Conflict of lairs. Future acquired personalty. Recording. Lease of foreign road. Replevin. Comity. NICHOLS V. MASE. (94 N. Y. 160.) Court of Appeals of New York. Nov. 27, 1883. Action by the tmstee under a mortgage to recover property seized on attachment. There was a Judgment for plaintiff. Defend- ant appealed. Modified. Homer A. Nelson, for appellant. R. F. Wilkinson, for respondent. MILLER, J. The plaintiff, as treasurer of the state of Connecticut, and as trustee for the holders of certain mortgage bonds of the Connecticut Western Railroad Company, brought this action to recover certain per- sonal property, and a lease in possession of the defendant, as sheriff of the county of Dutchess. He claims possession under a mortgage executed by the railroad company to the treasurer of the state of Connecticut. The defendant was in ijossession under an attachment issued from the supreme court against the property of the company. The mortgage executed by the Connecticut W'estern Railroad Company to the state treasurer of Connecticut, by its terms cov- ered all the lands, railways, etc., and all the personal property then belonging, or which might thereafter belong, to the com- pany, and all rights and franchises of the company under its charter, and was exe- cuted in trust for the benefit of the holders of the bonds of the company referred to in the mortgage. It provided that if -the inter- est remained at any time unpaid for six months after the presentation of the proper coupons, the principal should become due. It also provided that the company should remain in possession until default should be made in the payment of interest, and that In case the interest should remain unpaid for six months the mortgagee might, at the request of the holders of one-third the amount of the bonds, take possession of the railroad and all its property, franchises, etc., and through agents aijpointed by him, oper- ate the railroad, and receive the income and profits thereof. The sheriff levied upon the property under an execution issued upon a judgment against the company on the 19th day of March, 1880. On the 27th day of April, 1880, the property was formally sur- rendered to the trustee named in the mort- gage, in consequence of a failure to pay the interest due upon the bonds which the mort- gage was given to secure. If the mortgage In question was valid within this state, there •can be no doubt as to the right of the plain- tiff to maintain this action, upon proof of a demand and a refusal to deliver. The objection urged against the validity of the mortgage, upon the ground that it was not executed in accordance with the laws of the state of Connecticut, are without merit. There is no ground for the claim that the bonds were not issued in accordance with the charter, and that they were issued without regard to the amount expended, and the sworn statement of the engineer. There was no proof on the trial that there was any failure in this respect, and the bonds being valid ujjou their face, the plaintiff was not bound to prove that these provisions of the law were complied with. The burden was upon the defendant, as the case stood, to show the invalidity of the bonds. The law required the comptroller to issue the bonds in accordance with the provisions of the charter, and in the absence of evi- dence to the conti-ary, the presumption is that he performed his duty. The objection that the mortgage was not attested by two witnesses, according to tlie statute of the state of Connecticut, has no force. Witness- es were not necessary to a mortgage exe- cuted by a corporation according to the laws of that state. Section 511 of the statute of Connecticut, entitled "an act concerning com- munities and corporations," prescribes that mortgages executed by railroad corporations shall be authenticated by deed executed by the president, under the corporate seal. This provision was complied with in the mortgage in question, and the statute cited is con- trolling, as it embraces a mortgage of this character. The general statute does not im- pair the effect of this special statute cited, as it is not manifest that such was the in- tention of the legislature. The signature of the president and the seal of the coi-poration show a due execution of the mortgage in ac- cordance with the law. Even if there were defects in the execu- tion of the bonds and the mortgage, we think these were cured by the statutes of Connec- ticut, relating to that subject, which were introduced in evidence on the trial. As how- ever we have an'ived at the conclusion that the mortgage was properly authenticated, and the bonds properly issued, as the law required, we do not deem it necessary to con- sider the effect of the remedial statutes re- ferred to. It is contended by the appellant's counsel that, assuming the validity of the mortgage under which the plaintiff claims title, the plaintiff was not entitled to recover, and it is urged in support of this position, that the treasurer of Connecticut never had posses- sion of the property in suit, and that he was only entitled to possession under the terms of the mortgage, which had not been com- plied with. This objection- has reference to the performance of the conditions precedent, contained in the mortgage, which, it is claim- ed, only entitled the plaintiff to take posses- sion. We think that the evidence shows such a compliance with the terms of the mortgage in this respect as authorized the treasurer of the state to take i)ossession of the property, but we do not deem it neces- sary to enter upon an examination of the 208 POWERS or A KAILKOAD COMPANY. evidence whicli established the right to take possession. The conditions in this respect were for the benefit of the railroad company, and it having sun'endered the property vol- untarily, there was a waiver of the same. The corporation having a clear right thus to waive the conditions referred to, and the de- fendant being a mere trespasser, he is in no position to insist that the terms of the mort- gage have not been fulfilled. The right to renounce a condition in favor of a party to be benefited by its terms is well settled in law, and the claim of one who is a stranger, and who has no connection with, or right to enforce the same, has no founda- tion to support it. We think that all the property in question was covered by the mortgage, which by its terms includes the railroad stock and all the personal property used in the operation of the railroad, and the appurtenances thereto. Its language in- cludes the property acquired after the execu- tion of the mortgage. Such, evidently, was the intention of the mortgagor in giving, and the mortgagee in taking, security on the property, and there is no ground for claim- ing to the contrary. Even if there was, there is no proof that the property in question was acquired subsequent to the execution of the mortgage. As every presumption is in a dif- ferent direction the burden of proof in this respect is upon the defendant. The question is also raised that the mort- gage, even if valid in the state of Connecti- cut, was not valid in this state, for the rea- son that it was not filed or recorded here in accordance with the statute applicable to mortgages on personal property. By chap- ter 279 of Laws of 1833, of this state, mort- gages on personal property, when not ac- companied by a change of possession, were declared to be absolutely void as against the creditors of the mortgagor, unless the mort- gage, or a true copy thereof, was filed as provided by the statute. The act further provided for the filing of the mortgage in the town or city where the mortgagor resided, and if the mortgagor was not a resident, then in the city or town where the property so mortgaged was at the time of the execu- tion of the instrument. ' By the act of 1868 (chapter 779), it is declared that it shall not be necessary to file a mortgage upon real and personal property, executed by a railroad company, which has been recorded as a mortgage of real estate. Under these stat- utes the filing or the recording of the mort- gage in question would have been necessary in order to render it valid and effectual if it had been made in this state, but they do not apply, and cannot affect the same, as it was properly executed, and was valid ac- cording to the laws of the state of Connecti- cut. The mortgage was effectual in that state. It was not proved that the mort- gaged property was in this state at the time of the execution of the mortgage, and it must be assumed to have been In the state of Con- necticut. The validity of the mortgage, therefore, must depend upon the rules of" law which are applicable to a transaction of this character. The mortgage being valid ia the state of Connecticut, where the property was at the time of the execution, and where the parties entered into the contract, it is a protection to the mortgagee in his right to the property included in it, which may have been brought into the state of New York. In this state it is held that where a con- tract In regard to personal property is made in another state, that the law of such state- as to its validity and effect is to govern here, and if valid there it is to be considered equal- ly valid, and can be enforced here. Insur- ance Co. V. Aldrich, 2G N. Y. 96. So, also, where a lien is valid In this state, and the property Is temporarily removed to another state, a creditor cannot defeat the interest acquired under the same by proceedings in invitum in another state. Martin v. Hill, 12 Barb. 631. The rule last stated is also recog- nized by the decisions in other states. See Langworthy v. Little, 12 Cush. 109; Jones v. Taylor, 30 Vt. 42; Ferguson v. Clifford, 3T N. H. 86. The principle is also well settled that a voluntary conveyance of personal property, good by the law of the place where it was made, passes title wheresoever the property may be situated. Hoyt v. Thomp- son, 19 N. Y. 224. The true rule is laid down in Edgerly v. Bush, 81 N. Y. 203, by Folger, C. J., as follows: "The law of the domicile of the owner of personal property, as a gen- eral rule, determines the validity of every transfer made of it by him." It being clear, as we have seen, that the mortgage was valid in Connecticut, under the nile already stated, it was valid in this state, and the plaintiff had an unquestion- able right to the property covered by the same. By the rule of comity which prevails between the different states, the right of the plaintiff to the property in question was en- titled to protection, and the policy of this state has been to protect the right of owner- ship, and to leave the buyer to take care that he gets a good title. See 81 N. Y. 199, supra. The application of this rule rests In sound judicial discretion, dictated by the cir- cumstances of the case, and. In view of the authorities already cited, a proper case was presented for the exercise of such discretion. It cannot be fairly contended that the laws of the state of Connecticut in reference to the rights of the plaintiff are in contraven- tion of the policy and the laws of this state, and that it would be injurious to the citi- zens of this state to give them effect here. The rule of comity to which we have re- ferred must stand and control in this case, as it Is fully established by the decisions of the courts; any other or different rule would not furnish that protection to the interest of citizens of other states which is demanded POWERS OF A RA-ILEOAD COMPANY. 204) in their intercourse and business connec- tions with the people of the state of New York. We thinli the court erred in allowing the plaintiff to recover the lease of part of the Newburgh, Dutchess and Columbia Railroad. The lease, of itself, was not the subject of replevin. There was also error in directing the jury to assess the value of the property taken at $15,000, as that included the value of the BALDW. SEL. CAS. R. E. — 14 lease in question, and also the undivided one-half interest in land at the junction of the Dutchess and Harlem Railroad, in all to the value of $1,200. In this respect the- judgment should be modified by deducting; the last-named amount from the damages;, and five per cent, extra allowance on the' same from the costs, otherwise the judgment should be afiirmed, without costs of appeal to either party. All concur. Judgment accordingly. 210 POWEilS OF A RAILROAD COMPANT. Mortgage of future income. Accouuting. Date of accountability. Going concern. DOW et al. t. MEMPHIS & LITTLE ROCK R. R. GO. (124 U. S. 652, 8 Sup. Ct. 673.) Supreme Court of the United States. Feb. 20, 1888. Appeal from the circuit court of the United States for the Eastern district of Arkansas. U. M. Rose, for appellants. Wager Swayne, for appellees. WAITE, C. J. The facts on which this case rests are these: Robert K. Dow, Wat- son Matthews, and Charles Moran are the trustees in two mortgages executed by the Memphis & Little Rocli Railroad Company, as reorganized, one on the first and the oth- er on the second of May, 1877, to secure two separate issues of bonds. Each of the mort- gages covered, among other things, "all the incomes, rents, issues, tolls, profits, receipts, rights, benefits, and advantages had, receiv- ed, or derived by the party of the first part from any of the hereby conveyed premises," which included the railroad of the company; but it was provided that until default in the payment of interest or principal the com- pany should "retain the possession of all the property hereby conveyed, and receive and enjoy the income thereof." In case of de- fault for 60 days in the payment of interest, the trustees were authorized to enter upon and take possession of "all and singular the charter, franchises, and property * * * conveyed," "and take and receive the income and profits thereof." The company failed to pay its Interest falling due July 1, 1882, and thereafter. For this reason the trustees be- gan this suit against the company in the circuit of the United States on the 12th of Februaiy, 1884, praying that they might be put into the possession of the mortgaged property in accordance with the terms of the mortgage of May 2, 1877, and for the pur- poses therein expressed, "and that the de- fendant may be enjoined from interfering with their possession, or disturbing it in any way." On the 24th of March they applied for the appointment of a receiver, and the court, on the 27th of that month, granted the parties until April 7th to file briefs on the motion, but ordered "that the defendant, un- til further order herein, hold the property mentioned in the bill subject to the order of the court." On the 15th of April a receiv- er was appointed, and the company was or- dered at once to "surrender possession of its said I'ailroad, rolling stock, and all other money and property of evei-y character" to him. To this order exceptions were taken by the company, so far as it directed the delivery of money to the receiver, on the ground "that all the money in its hands or possession was derived by it from the oper- ation of the railroad and other property men- tioned in the bill, and was its income and the income of said property, and that it had no money whatever, save such as was thus derived and received;" and that at no time had the plaintiffi demanded possession of the property. On the 18th of April this motion was denied, but the receiver was directed to hold the moneys to be paid him "subject to the order of the court, and to be repaid to defendant should the court so adjudge." On the 27th of March the company had in its hands $42,123.68. Between that date and April 15th the company paid out $46,458.16, and its earnings were such that, when added to the $42,123.68, there was enough to make these payments and leave a balance of $32,- 216.20, which was paid over to the receiver. Certain persons who were holders of bonds secured by the mortgage of May 1, 1877, re- covered judgments at law against the com- pany for past-due coupons, amounting in the aggregate to more than the sum thus put in the hands of the receiver, and they presented petitions for payment out of the fund. Aft- erwards the court ordered the receiver to pay back the $32,216.20 to the company, and to turn over the mortgaged property to the trustees. The record does not show that there are any other creditors than such as are secured by the mortgages, which exceed in amount the value of the property. From that part of the decree directing the restora- tion of the money to the company, the tnis- tees took this appeal. The creditors who presented petitions for the payment of their judgments did not appeal, so that the only question presented here is whether the court erred in ordering the receiver to pay the $32,216.20 to the company instead of the trustees. It is well settled that the mortgagor of a railroad, even though the mortgage covers income, cannot be required to account to the mortgagee for earnings, while the property remains in his possession, until a demand has been made on him therefor, or for a sur- render of the possession under the provisions of the mortgage. That is the effect of what was decided by this court in Railroad v. Cowdroy, 11 Wall. 459, 483. In the present case a demand was made for the possession by the bringing of this suit, February 12, 1884, and from that time, in our opinion, the company must account. The bill was not filed to foreclose the mortgage, but to en- force a surrender of possession to the trus- tees in accordance with its terms. The court below decided that the trustees were entitled to the possession when the suit was begun, and from the decree to that effect no appeal has been prosecuted. We must as- sume, therefore, that the demand was right- fully made, and ought to have been granted. It follows that alter the suit was begun the company wrongfully withheld the posses- sion, and under such circumstances equity forbids that it should retain, as against the mortgagee, the fruits of its refusal to do what it ou.uht to have done. It is a matter of no consequence that a receiver was not appointed imtil April 15th, or that an appli- POWERS or A RAILROAD COMPANY". 211 cation was not made for such an appoint- ment until March 24th. If the surrender of possession had been made, as we must as- sume it ought to have been, as soon as the suit was begun, a receiver would have been unnecessary. AU that was done afterwards In that particular was in aid of the suit and because of the refusal of the company to comply with the demand that had been made. It follows that from the time of the bringing of the suit the company itself is to be treated in all respects as a receiver of the property, holding for the benefit of whomso- ever in the end it should be found to con- cern, and liable to account accordingly. In Railroad v. Oowdrey, before cited, the con- troversy was in respect to earnings before suit brought, and the suit was for foreclo- sure only, the court being cai-eful to say, in its opinion, that it did not "appear that the complainants, or their trustees, made any demand for the tolls and income until they filed the present bill." and that "the bill it- self did not contain any allegation of such a demand." It remains only to inquire when the mon- ey, which is the subject-matter of the con- troversy, was actually earned, and we have no hesitation in deciding, upon the evidence, that it must have been after the suit was begun. The admission is that on the 27th of March the amount in the hands of the company was $42,123.G8. Between that date and April 15th the company paid out $46,- 45S.lti, which was $4,334.48 in excess of what it had on hand at the beginning. On the 15th of AprU it had on hand $32,216.20, thus showing that its earnings from March 27th until then must have been $36,550.68. The fair inference from the evidence is that the receipts were all from the current earn- ings, and the disbursements for the current expenses. The railroad was all the time, before and after the suit, a "going concern," and its receipts and disbursements the subjects of current income account. Apply- ing the disbursements as they were made from the income to the payment of the older liabilities for the expenses, as is the rule in ordinary running accounts, it is clear that, in the absence of pi'oof to the contrary, the money on hand was earned pending the suit. Under these circumstances, as there are no current expense creditors claiming the fund, we are satisfied that the money is to be treated as income covered by the mortgages, and should be paid to the trustees, to be held as part of that security. The decree of the circuit court is reversed, and the cause remanded, with instructions to enter a decree in accordance with this opln- I ion. 212 POWERS OF A RAILROAD COMPANY: MORTGAGES. Mortgage may cover supplies, coal, etc. Does, if language is snfficiently general as to future accinired property. Levy by creditor on coal bought after mort- gage given, and before mortgagees take possession. Injunction. PHILLIPS V. WINSLOW et al. WOODWARD et al. t. SAME. (18 B. Mon. 431, 68 Am. Dec. 729.) Court of Appeals of Kentucky. 1857. Appeal from circuit court, Kenton county. Benton & Nixon aad Menzles & Pryor, for appellee. SIMPSON, J. These actions in equity were brought by Winslow as trustee. His title to the property in contest is derived under two deeds executed to him by the Covington and Lexington Railroad Company, one bearing date the 8th of April, 1853, and the other the 1st day of June, 1855. The deeds were exe- cuted to enable the corporation to borrow money. They both purpart to convey to the trustee, to secure the payment of the money borrowed "all the present and In future to be acquired property of the parties of the first i>art; that is to say, their road made or to be made, including the right of way and land occupied thereby, together with the superstructure and tracks thereon, and all rails and other materials used therein, or procured therefor, and engines, tenders, cars, tools, materials, machinery, contracts, and all other personal property, right thereto, or Interest therein, together with the tolls, rents, or income to be had or levied thereupon, and all franchises, rights, and privileges of the said parties of the first part of, in, to, or concerning the same." The corporation had made a previous deed on the same property, in precisely the same language, to John A. Stevens and Charles N. Fearing, to secure the payment of the bonds of the company to the amount of four hun- dred thousand dollars. The grantees in this first deed, therefore, were invested with the legal title to the property embraced in the deeds. The defendants in the action, being judg- ment creditors of the corporation, sued out their respective executions, and caused them to be levied on two freight cars of the com- pany, then on the track, eight car wheels at the car shop, twenty-five cords of fire wood obtained for the use of the engines and loco- motives, and five hundred bushels of stone coal at the machine shop. The proceedings under Woodward's execution were enjoined before a sale was made by the officer, but the property was sold under the execution in favor of Phillips and Jordan, &c, and was I)urchased by them. Its removal was enjoin- ed in the action in which they were defend- ants, and the injunctions in both cases were sustained and perpetuated by the judgment of the court below on final hearing. The first and most important question that arises in these cases is, do the deeds to the plaintifC include the property upon which the executions of the defendants were levied? If they do not, he has no right or title to the property, and cannot maintain his actions, even although the property was not subject either to levy or sale. The plaintiff did not allege in his petition in either case, that the property belonged to the railroad company at the time the deeds were executed. It may therefore be assumed that it has been subsequently acquired by it. The company, by its charter, was authoriz- ed to borrow money, and execute such evi- dences of indebtedness as might be deemed proper, and pledge the property, franchises, rights and credits of the corporation for any loan, liability, or contract which it had made or should make. We do not deem it necessary to decide in this case whether, under ordinary circum- stances, a mortgage on subsequently acquired proi)erty would be valid, or pass any title to the property. These deeds were made under the power conferred by the charter, and their validity and effect have to be determined by the provisions of the charter, and not by the general law upon the subject. The object in conferring this power on the corpoi'ation was to enable it to borrow money for the pur- pose of constructing the road, and putting it into full and complete operation. The power to pledge the franchises and rights of the corporation implies, as Incident thereto, the I)ower to pledge eveiything that may be necessary to the enjoyment of the franchise, and upon which its real value depends. It could not have been intended by the legisla- ture merely to confer a power to pledge the naked franchise, which belonged to the cor- poration, without the right also to pledge such things as were incident and indispensable to its use and enjoyment, and without which it would be of no value whatever. A power of such limited operation would have been of no avail, in the then condition of the road, and would not have accomplished the object con- templated by the legislature and the com- pany. The corporation was authorized to pledge not only the existing property of the road, but the corporate rights and franchises, and the railroad Itself, as an entire thing. To render such a pledge effectual, it was necessary that It should embrace all such future acquisitions of the corporation as were proper accessions to the thing pledged, and essential to its enjoyment, and the power thus to extend it was implied in the grant It- self. Of what value would the railroad be without the cars on the road, and the fuel necessary to run them? The bonds of the company were redeemable in thirty years. To secure their payment, the road of the com- pany made and completed, including the right of way and the land occupied thereby, with the superstructure and track thereon, and all the rails and other materials used and to be used therein, and all engines, cars, tools, ma- chinery, and all other personal property then owned, or which might be afterwards ac- POWEKS OP A RAILROAD COMPANr: MOltTGAGES. 213 quired by the company, together with all fran- chises, rights, and privileges of the company to use the road and collect tolls and freight, were conveyed in pledge by the comj)any. Now, it is evident that as the pledge was to continue during many years, new cars and engines and materials of different description would from time to time become necessary, and fuel would all the time have to be pur- chased as it was needed. These articles were therefore included in the deed, and as the business of the road could not be carried on without them, the power to pledge and the road itself, with its profits and privileges, and the rights and franchises of the corporation, carried along with it the implied authority to pledge all such future acquisitions of the com- pany as were necessary and proper to the full and complete use and operation of the road itself. We are therefore of the opinion that the property upon which the executions were levied was embraced by the deeds to the plaintiff, whether it belonged to the company at the time the deeds were executed, or was subsequently purchased by it. The next question to be considered is the jurisdiction of a court of equity in these cases, and Its power to grant relief by enjoining the defendants from proceeding to dispose of the proi)erty under their executions. It is con- tended that they had a right to levy their exe- cutions on the equity of redemption, and to make sale thereof, and that for any wrong committed by them the plaintiff had an ade- quate remedy at law. The plaintiff's right to the property was mer^y equitable, inasmuch as It was covered by an elder deed of trust than those under which he claimed. Consequently, before the adoption of the Code of Practice, he could not have maintained an action at law against the defendants, but would have been compel- led to resort to a court of chancery for relief; and under the Code, a plaintiff may prosecute his action by equitable proceedings, in all cases where courts of chancery before its adoption had jurisdiction. Code Prac. § 4. In one of these cases the property had been sold and purchased by the plaintiffs in the execution. In making the sale, the deeds of trust had been disregarded, and the absolute right to the property, and not merely the equi- ty of redemption therein, was sold by the officer. By this act, the levy itself became tortious by relation, and the sale was illegal. If the plaintiff had been invested with the legal title to the property, he could have main- tained an action of replevin or detinue against the purchaser for its recovery. Fugate v. Clarkson, 2 B. Mon. 42. As he only had an equitable title to it, he had a clear right to apply to a court of equity for relief, and was entitled to a judgment for a re-delivery of the property, if it had been taken into possession by the defendants, or to an order restraining them from a removal of it, if it had not been removed by them. In the other case the property had not been sold, but the plaintiff alleged that the defend- ant had levied an execution upon it, and would sell it, unless restrained by the chancel- lor. As the plaintiff had a right to come into a court of equity for relief, on the ground that he had only an equitable right to the property, and as the defendant, according to the al- legations contained in the petition, was about to commit an illegal act, the court had the ixiwer to restrain him, and thereby prevent its commission. A court of law only affords relief, after the wrong has been done, but a court of equity will interpose, and prevent its commission, where it has jurisdiction of the case, and the act, if committed, would be evidently wrongful and illegal. The defend- ant did not propose to sell merely the equity of redemption, but to sell the property itself. But we are of the opinion that in these cases, the court had jurisdiction, upon the ground, that the act complained of was not only in violation of the plaintiff's right, but it was of a character which might produce great or irreparable injury to the plaintiff, and great inconvenience to the public. If executions can be levied upon one car they can be levied upon all the cars upon the road. If they can be levied upon part of the fuel, they can be levied upon all of it, and thus the business of the road may be entirely suspended. Such a result would not only pro- duce great injury to the plaintiff, but great inconvenience to the public. It would pre- vent all travel upon the road, and effectually destroy its business and its usefulness. If the property was subject to execution, the plaintiff' would have no right to complain, let the consequences be what they might; but not being subject to execution, he has a clear right to apply to the chancellor for an in- junction to prevent an act which might be productive of so great an injury; the right to redeem the property, being a right that be- longs to the corporation, is liable for its debts; but the defendants were not attempting to sell this equity of redemption, but the prop- erty itself, which they had no right to do. Where encumbered property is sold under execution, courts of equity have the control of It, and the power to make all needful or- ders for its preservation. Since the adoption of the Revised Statutes, the purchaser, under a sale of the equity of redemption, only ac- quires a lien upon it, for the re-payment of the purchase money and Interest. Rev. St. p. 327. If then one of the previous incumbrancers should be in the possession of the property, at the time of the sale of the equity of re- demption, under the provisions of the deea creating the incumbrance, having a right un- der the same to apply the profits to the pay- ment of his demand, a court of equity having the power to control the property would se- cure him in the possession and enjoyment of it, leaving to the purchaser the benefit of the lien he had acquired under the sale of the equity of redemption. 214 POWERS or A RAILROAD COMPANY: MORTGAGES. Here the plaintiff was substantially in the possession of the road through his agents, the officers of the company, or if not in the actual possession of it, he had the right to it by the terms of the deeds creating the incumbrance, and also the right to appropriate the profits of the road to the payment of the debts of his cestui que trusts. If therefore the defend- ants had sold merely the equity of redemp- tion, or, in other words, had sold the property subject to the previous incumbrances, the chancellor would have had a right under the discretionary powers vested in him by the statute to have prevented its removal by the purchaser. But as the defendants had un- der one execution sold the property, without any regard to the incumbrances upon it, and were proceeding to do the same thing in the other case, the plaintiff had an undoubted right to the relief granted him by the judg- ment of the court below. Wherefore, the judgments in both cases are affirmed. Contra, Coe v. Knox County Bank, 10 Ohio St. 412. POWERS OF A BAILROAD COMPAISTr: MORTGAGES. 215 Foreclosure suit. Money advanced to oasli coupons. Priorities. Estoppel. UNION TRT^ST CO. t. MONTICELLO & PORT JBRVIS RAILWAY OO. (63 N. Y. 311.) Court of Appeals of New York. Nov. 30, 1875. Action by the trustee 'to foreclose a mort- gage securing bonds. Appeal by a holder of coupons from an order denying his right to share in the proceeds of the mortgaged prop- erty. Affirmed. Daniel T. Walden, for appellant. Henry Day, for respondent. EARL, J. The Monticello and Port Jeryis Railway Company issued five hundred bonds of $1,000 eacli, with interest coupons attach- ed, payable quarterly, on the first days of January, April, July and October, and it executed and delivered to the plaintifE a mortgage upon its property to secure the pay- ment of the bonds and coupons. Default hav- ing been made by the railway company, the plaintifE commenced a foreclosure of the mortgage; and the premises mortgaged brought, on a sale under the decree, less than the amount of the face of the bonds. A refer- ence was ordered in this action, to a referee, to ascertain, among other things, the holders of the bonds and coupons who were entitled to share in the proceeds. It appeared upon such reference that the railway company be- ing unable to pa3' the coupons due July 1 and October 1, 1872, and January 1, 1873, one A. P. Smith made an agreement with its presi- dent to advance the money to pay the coupons due a^t the dates mentioned, and to hold the coupons for his security. In pursuance of this agreement, he went to the plaintiff, where the coupons were payable, and left with it the money to pay the coupons when prtisented, it agreeing with him to take and deliver them to him uncanceled, that he might hold them as his security for the money advanced. The holders who presented the coupons for pay- ment generally knew nothing of this arrange- ment, and supposed when they received the money and delivered up the coupons that they were paid. Smith thus took up fifteen hun- dred coupons, five hundred at each of the dates mentioned, and now claims to share in the funds pro rata with the other holders of bonds and coupons. The referee disallowed his claim, and his decision was sustained both at special and general terms. The coupons were secured by the mortgage, and their detachment from the bonds did not deprive the holders of them of the security of the mortgage. That remained security for their payment until paid, whether attached to or detached from the bonds. County of Bea- ver V. Armstrong, 44 Pa. St. 63; Miller v. Railroad Co., 40 Vt. 399; Haven v. Railroad Co., 109 Mass. 88. Here the holders of the coupons did not agree to assign or transfer them to Smith, and did not in fact do so. When they delivered these coupons to the trust company they supposed they were re- ceiving payment of them, and Smith undoubt- edly knew this. He however intended to take and hold them, and keep them in being as his security for the money advanced. This he could do as against the railway company; and as against it the mortgage could be en- forced for his benefit. It had not paid the coupons, was in no way harried by their pay- ment by Smith, and he advanced the money for its benefit upon the request of its principal officer. But a different rule applies as be- tween Smith and the bondholders. They had a direct interest in having the coupons paid, so as to preserve the value of their security. They delivered them up to the trust company for payment, and supposed they were paid. If they had known the true state of the case, they might and probably would have refused to assign the coupons, and to have them kept in life, and thus, by an accumulation of inter- est, to have impaired the value of their se- curity. And they could have caused a fore- closure of the mortgage for default in the payment of the interest If the creditors who now contest Smith's claim had purchased their bonds in the belief that the coupons had actually been paid, there could be no question that Smith would be estopped as against them from claiming that he took a transfer of them, and that they were still secured by the mortgage (109 Mass., supra); and I cannot perceive why, upon the facts presented, their present position is not equally strong. There are many cases where money is paid upon mortgages and judgments by persons not parties to them, in which, whether the se- curity shall be regarded as extinguished, or held to be in force for the benefit of the party paying, depends upon the intent of the party paying. Equity will keep the securities in life in such cases to promote the ends of justice; but not against any person having a superior equity. Harbeck v. Vanderbilt, 20 N. Y. 398; Robinson v. Leavitt, 7 N. H. 100; Miller v. Railroad Co., supra; James v. Johnson, 6 Johns. Ch. 423; Haven v. Railroad Co., supra. Here the bondholders did not agree that Smith should take and hold the coupons, and they did not agree that he should have any interest in the mortgage security. To give him the benefit of the security would now be detrimental to them, and as between them and him would be inequitable. I am therefore of opinion that the case was properly disposed of, and that the order should be affirmed, with costs. All concur. Order affirmed. -216 POWERS OP A RAILROAD COMPANY: M0RTaAGE3. Bondholders are represented by mortgage trustees, pleting nnfinislied road by receivers. Fraud. SHAW V. RAILROAD 00. (two cases). (100 U. S. 605.) Supreme Court of the United States. Oct. Minority interest. Com- 1879. Appeals from the circuit court of the Unit- ed States for the Eastern district of Arkan- sas. These cases present the following facts: By an act approved Feb. 9, 1853 (10 Stat. 155), congress granted lands to the state of Arkansas to aid in building a railroad. Pow- er was given the state to sell them only as the road was completed in sections of twenty miles each. If the road was not finished in a specified time, all lands no't sold were to revert to the United States. A part of the lands thus donated by congress were granted toy the state to the Little Rock and Fort Smith Railroad Company. On the 22d of December, 1869, the railroad company executed a mortgage on its rail- road, completed and to be completed, to Henry W. Paine and Samuel T. Dana, as trustees, to secure an Issue of bonds amount- ing in the aggregate to $3,500,000, payable Jan. 1, 1890, with interest semi-annually at six per cent per annum, and on the 20th of June, 1870, it executed another mortgage on its land-grant, earned and to be earned, to Paine, Dana, and William B. Stevens, to se- cure another issue of bonds for $5,000,000, payable April 1, 1900, with interest semi- annually at seven per cent per annum. Each of the mortgages contained this clause:— "In case default shall be made in the pay- ment of any half-year's interest on any of the said bonds, at the time and in the man- ner in the coupon issued therewith provided, the said coupons having been presented and the payment of the interest therein specified having been demanded, and such default shall continue for the period of three months after said coupons shall have become due, and been demanded as aforesaid, then and thereupon the principal of all the said bonds shall, at the election of the trustees, become immediately due and payable." On the 12th of May, 1874, all the bonds provided for in both these mortgages had been put out and one hundred miles of the road built. About sixty miles remained to be completed, and the company was without funds or credit. All interest on the bonds falling due Jan. 1, 1871, and thereafter, was in arrear and unpaid. Thereupon Paine, a citizen of Massachusetts, at that time the only trustee of the mortgage of the railroad, and Paine, Stevens, and Charles W. Hunt- ington, all citizens of Massachusetts, then the trustees of the land-grant mortgage, com- menced suits in the circuit court of the Unit- ed States for the Eastern district of Arkan- sas to foreclose their respective mortgages. In each of the bills the necessary averments of fact were made to entitle the parties to a decree of sale, and the trustees elected to treat the principal of the bonds as due. All the necessary defendants, including certain judgment creditors were made, and there was nothing at that time in the citizenship of the parties to interfere with the jurisdic- tion of the court. The first of these cases is the suit upon the railroad mortgage, and the second that on the land grant. Afterwards changes in the trustees were made, so that Charles W. Huntington and Samuel H. Gook- in represented the railroad mortgage, and Huntington, Gookin, and Samuel Atkins the land grant. The proper substitutions were made on the record, the new trustees all be- ing citizens of Massachusetts. Subsequently, on the 3d of October, 1874, an amendment was made to the bill for the foreclosure of the railroad mortgage, by which Atkins, one of the trustees of the land-grant mortgage, and other persons, cit- izens of Massachusetts, were brought in as defendants to that suit. The object of this amendment was to obtain the appointment of a receiver of the property with a view to raising money on receiver's certificates to complete the road and save the unearned land grant. No such appointment was made, however, and nothing was done under the amendment. On the 6th of November, a de- cree was entered in each of the cases, find- ing that the m«rtgage sued on was a valid and subsisting lien on the mortgaged prop- erty; that the whole amount of the bonds In each ease had been issued, and, with the in- terest thereon, was due and unpaid; and or- dering the mortgaged property to be sold un- less the debt, principal and interest, was paid on or before the 10th of December then next. Provision was also made in each case for a distribution of the proceeds of the sales among the bondholders. After this decree was rendered, a public meeting of the holders of both classes of bonds was called in Boston on fuU notice, and, as the result of that meeting, George O. Shattuck, Francis M. Weld, and George Rii>- ley were appointed by parties representing in the aggregate $6,097,000 of the bonds, to purchase the mortgaged property for the benefit of the bondholders. They according- ly appeared at the sale, and became the pur- chasers of the railroad for $50,000, and the land grant for the same amount. The sale was duly reported to the court on the 19th of December, when the purchasers appeared and declared in open court, and desired to have it recorded, that it was their intention to organize a coi-poration under the laws of Arkansas, to own, hold, and manage the property bought at the sales, and that the holder of any of the bonds secured by either mortgage might, within sixty days from the time of the organization of the corporation, transfer to it his bonds and his right to the proceeds of the sale, and become entitled to his proportional interest in the stock of the new corporation upon the same terms and POWERS or A RAILROAD COMfANY: MORTGAGES. 217 stipulations as any otlier holder of the bonds; but this was not to prevent the new corpora- tion from requiring from any and all bond- Oiolders the payment of his proportion of the expenses attending the sales and purchases, and such other sums not exceeding five per cent of the principal of the bonds as it might deem for its interests to require as a condi- tion on which the stocli should be delivered, provided that the same requirement should be made of all the other holders of bonds, and provided further, that this stipulation should not limit the power of the purchasei-s to organize the corporation without notice, or of the corporation so organized to mortgage its property, or to reserve for its own use an amount of its capital stock, not exceeding ten per cent thereof. At the same time, the sev- eral trustees appeared in court and consented to a confirmation of the sales upon the agree- ment that the stipulations of the purchasers thus given be embodied in the decrees ap- proving and confirming the sales. Thereup- on appropriate orders of confirmation con- taining the required stipulations were en- tered, and the proper conveyances made. In the order confirming the sale under the land- grant mortgage, it was provided that the new corporation should, as part of the con- sideration for the conveyance, compromise or pay such claims against the old company as Huntington, Ripley, and Henry A. Whit- ney might within one year approve, and upon such terms and in such manner as they should prescribe. On the 22d of February, 1875, Charles H. Richardson, Frank Shaw, and David S. Greenough, of Boston, representing them- selves to be holders of a large amount of the bonds, filed their petition in court, asking that the decree of confirmation might be modified by striking out the clause requiring payment of the claims against the railroad company, and that the provisions of the de- crees relating to the exchange of bonds for stock in the new corporation might be ex- tended until the question of modification should be decided. As one of the grounds of this application, it was alleged that Weld and Atkins were creditors of the railroad ■company. This petition was answered by the several trustees explaining the facts. On the 13th of April, the time for exchanging Iwnds for stock in the new corporation was extended for sixty days, and the order for the payment of claims against the railroad company so modified as to make the ap- proval of a claim by the court necessary be- fore it could be paid, and providing for no- tice to Richardson, Greenough, and Shaw whenever a claim was presented for allow- ance. On the 6th of July, 1875, Greenough, as owner of $58,000 of the bonds, and Shaw, as owner of $11,000, filed in the circuit court, in each of the cases, what is denominated a bill of review, in which they ask that the de- crees be reviewed and reversed, and they placed in the same situation they would have been if the decrees had not been ren- dered. The errors complained of relate to the sufficiency of the allegations in the origi- nal bills; the confirmation of the sales, by the consent of the trustees, upon the terms stipulated for; a want of jurisdiction in the court, as the complainants and many of the defendants were citizens of the same state; and the rendition of a decree against the railroad company, without service of sub- pcEna, after filing the amended bill. It was also alleged that Gookin and Atkins, trus- tees of the mortgages, were holders of bonds secured by the respective trusts. Demur- rers to both bills were filed, which the court below sustained, and dismissed the suits. Shaw and Greenough thereupon appealed. B. C. Brown, for appellants. 0. W. Hun- tington, for appellee. Mr. Chief Justice WAITE, after stating the facts in the foregoing language, delivered the opinion of the court. We think it clear that the appellants are not entitled to the relief they ask. They were not parties to the original suits, except through their trustees, against whom they make no charges. Indeed, their counsel says in his brief, "It is probable that they [the trustees] believed that they were doing the best possible for their beneficiaries." The tnistee of a railroad mortgage represents the bondholders in all legal proceedings car- ried on by him affecting his trust, to which they are not actual parties, and whatever binds him, if he acts in good faith, binds them. If a bondholder not a party to the suit can, under any circumstances, bring a bill of review, he can only have such relief as the trustee would be entitled to in the same form of proceeding. To avoid what the trustee has done in his behalf, he must proceed in some other way than by bill of review. All the errors complained of in these bills of review, as occurring before the confirmation of the sale, are such as affect only the railroad company injuriously. If, in fact, they are errors at all, they were in favor of the trustees and those they repre- sent, and not against them. Of these the trustees could not complain. As no relief was granted under the amendment to the bill in the foreclosure of the railroad mort- gage, the court clearly had jurisdiction of that case for the purposes of the decree as rendered. But if the bills, as filed, are original in their character, to set aside the decrees com- plained of and not for review only, the ap- pellants are in no better condition. The trustees had an undoubted right to com- mence these suits when they did, and it is apparent from the whole record that all their proceedings, both before and after the sale, were in the interest of their beneficiaries generally, since one hundred and eighty in 218 POWERS OF A llAILUOAD COMPANY: MORTGAGES. oiimber, representing in the aggregate eight million out of the eight million five hundred thousand dollars of bonds outstanding, ac- cepted the result and exchanged their bonds for stock in the new corporation. To allow a small minority of bondholders, represent- ing a comparatively insignificant amount of the mortgage debt, in the absence of any pretence even of fraud or unfairness, to de- feat the wishes of such an overwhelming majority of those associated with them in the benefits of their common security, would be to ignore entirely the relation which bond- holders, secured by a railroad mortgage, bear to each other. Railroad mortgages are a peculiar class of securities. The trustee rep- resents the mortgage, and in executing his trust may exercise his own discretion with- in the scope of his powers.' If there are differences of opinion among the bondhold- ers as to what their interests require, it is not improper that he should be governed by the voice of the majority, acting in good faith and without collusion, if what they ask is not inconsistent with the provisions of his trast. This company and these trustees were peculiarly situated. The road was un- finished, and the land grant, to a large ex- tent, unearned. While the mortgages, as they stood, were first liens, there was great danger that their value would be seriously impaired unless more money could be raised. The attention of both the tnistees and bond- holders was called to that fact, and at first it seems to have been thought that the end might be accomplished through the instru- mentality of a receiver and receiver's cer- tificates. This necessarily contemplated the creation of a lien on the mortgaged property superior to that which then existed. Al- though the mortgages were separate, and on separate properties, the value of each de- pended, to a large extent, on the ability of the railroad company to finish its road. For some reason the idea of a receiver and receiver's certificates seems to have been abandoned, and what, to our minds, was a much more desirable plan adopted. The power of the courts ought never to be used in enabling railroad mortgagees to protect their securities by borrowing money to com- plete unfinished roads, except under extraor- dinary circumstances. It is always better to do what was done here whenever it can be; that is to say, reorganize the enter prise on the basis of existing mortgages as stock, or something which is equivalent, and by a new mortgage, with a lien superior to the old, raise the money which is required without asking the courts to engage in the business of railroad building. Ti^e result, so far as incumbering the mortgage security is concerned, is the same substantially in both cases, while the reorganization places the whole enterprise in the hands of those im- mediately interested in its successful prose- cution. The bare fact that some of the trustees were holders of bonds secured by their trust is not sufficient of itself to make them in- competent to consent to such a decree as- was rendered. From the whole case it is apparent that from the beginning their con- duct was governed by the wishes of a very large majority of bondholders. If there was anywhere the slightest evidence of fraud or unfaithfulness, their conduct would be care- fully scrutinized. The acts of trustees when personally interested should always be open and fair. Slight circumstances wiU some- times be considered sufficient proof of wrong to justify setting aside what has been done. But when every thing is honestly done, and the courts are satisfied that the rights of others have not been prejudiced to the ad- vantage of the trustee, the simple fact of in- terest is not sufficient to justify the with- holding of a confirmation of his acts. Here the name of Gookin, one of the trus- tees, appears in the list of bondholders ap- pointing the committee to make the purchase at the sale as the holder of two hundred thousand dollars of the bonds. Associated with him in the list were others represent- ing near six millions of dollars. His name openly appeared on the paper when the court was asked to confirm the sale on the condi- tions agreed to. Certainly this is not sutli- cient to defeat the plan to which he and his associates gave their consent. Atkins, an- other trustee, was a creditor of the company^ whose debt came within the provision made in the decree for payment by the new cor- poration. All this was fully explained to- the court when the modification of the de- cree in this particular was asked for, and. since no claim can now be paid except with tlie approval of the court after notice to the appellants, we see no reason why what has already been done is not sufficient for the protection of all concerned. On the whole, we see no reason for inter- fering with the decrees below, and they are each, therefore, affirmed. CARRIEIiS OF PASSENGEKS. 219 Carrier mnst use the utmost care for safety of passenger. Insurer of passenger's luggage. Limitation by notice. Negligence. CAMDEN & AMBOY R. R. CO. v. BURKE. (13 Wend. 611.) Supreme Court of New York. May, 1835. Error from superior court of New-York City. Burke brought his action against the company, the proprietors of a line of steam- boats and of a railroad and carriage between New-York and Philadelphia, for damage done to the wardrobe, music and musical in- struments of his minor son. Master Burke, a stage player, by the wardrobe, &c. falling into "the water at Bordentown, whilst the agents of the company were in the act of passing the baggage from a steamboat of the company to the cars upon the railroad. Master Burke was a passenger, in the line of the company, from Philadelphia to New- York, in December, 1833, and had with him a number of trunks, containing his ward- robe, &c.; he paid not only for his passage, but an extf-a sum for the transportation of his baggage. The mode of conducting the operations of the company is thus: After the boat is under way, the baggage of the pas- senger is placed in a crib, which, on the ar- rival of the boat at Bordentown, is removed from the steamboat to the cars on the rail- road by means of a crane — a stationary fix- ture on the wharf. The fall from the crane is by a rope attached to a pulley with a large double and single block. The rope and block straps used at the time of the accident were four and a half inches in circumference. In removing the baggage, the strap of one of the blocks gave way or broke, and the crib with the baggage fell into the water, by means of which the injuiy complained of was sustained. The crib alone weighs 510 lbs., and the whole weight at the time of the accident was less than 3,000 lbs. A rope of the thickness of that employed at the time of the accident is capable of sustaining a weight of at least three tons. The captain of the steamboat, who had been a sea-faring man for 14 years, examined the rope imme- diately after the accident, and could not dis- cover the cause of its giving way— there was no assignable cause for the accident. The block had been strapped and been in use seven or eight months. The block strap broke short off; it was covered with spun yam and leather where it broke. Another witness, a seaman and rigger, who fitted the blocks and strapped them, testified that the rope ought to have lasted upwards of a year. Since the accident, the company use a rope five and three-fourths inches in cir- cumference. The agent of the company, whose business it was to superintend the wharf at Bordentown, testified that he ex- amined the ropes daily, and that they were sound as far as the human eye could dis- cover. Where the rope broke, a defect could not have been discovered without taking off the spun yarn, which had not been done, nor had he examined particularly to see whether the rope had lengthened; it did not appear to him that it had. It was proved that there were notices affixed in different parts of the boat, on which were printed the words, "All baggage at the risk of the owner," which were seen by Master Burke. Forty pounds baggage were allowed to a pasesnger, as covered by his fare; for all over, an addi- tional charge was made — the same sum be- ing asked for 140 lbs. as for the fare of a passenger, and so in proportion. Master Burke paid $1.50, for his baggage. Several witnesses testified as to the extent of injuiy to the wardrobe, &c. Chief Justice Jones, of the superior court, charged the jury, that if the loss was to be ascribed to the negligence and want of care of the persons employed in the carriage of the goods, the defendants, whose agents they were, must confessedly be held responsible for it in damages; but that, in the present case, those who are char- ged with the transportation of the goods, had been guilty of no culpable negligence or want of care, and the evidence conglusively showed that the strap gave way, not from the improvident overcharge or unskillful or careless management of the crane and its machinery, but from some secret and un- known defect in the rope itself, not dis- coverable on inspection, nor discernible with out examination of the interior of the rope composing the fall; and that therefore the liability of the defendants for the damages was purely a question of law, how far the defendants were responsible for the sutficien- cy of the vehicles employed in the trans- port.ition, and of the crane and its ma- chinery, for the safe removal of the goods from the one to the other; and, in reference to that question, the chief justice charged the jury that if they were satisfied, from the evidence, that the loss or damage in the present case was occasioned by the inade- quacy and defect of the machinery employed in the removal of the goods from the steam- boat to the railroad car, the defendants were answerable for it, notwithstanding that the defect in the strap to which it was ow- ing, was unknown to the carriers, and not discoverable on inspection, and the loss may have happened without any culpable negli- gence or want of care of the carriers, or their agents, in the application or manage- ment of the crane and its machinery, at the time. The judge further charged the jury, that the notification to the following pur- port, "All baggage at the risk of the own- ers," shown to have been published by the defendants in the boat, would not protect them from the loss, if attributable to the do;- feet of the machinery. The counsel for the defendants excepted to this charge. The ju- ry found a verdict for the plaintifC for $500, upon which judgment was entered. The de- fendants sued out a writ of error. J. Anthon, for plaintiffs in error. D. Gra- ham, Jr., for defendant in error. 22a CARRIE BS or PASSENGERS. SAVAGE, 0. J. The plaintiffs in error in- sist that they are carriers of passengers; that as such they are bound to supply car- riages and machinery, sound and sufficient, a.s far as the eye and judgment can discov- er, and if an accident occurs, with the ex- ercise of care and diligence, it is actus Dei, and they are not responsible. ' The defend- ant in error contends that the plaintiffs are not only carriers of passengers, but carriers of goods; common carriers, and answerable as such. Story, Bailm. 379, is referred to by both counsel, as stating the rule correctly as to carriers of passengers, where he says: "The passenger carrier binds himself to car- ry safely those whom he takes into his <;oach, as far as human foresight and care will go; that is, for the utmost care and dili- gence of very cautious persons." But if, as the defendant's counsel contends, the plaintiffs are common carriers, they are, in the language of Chancellor Kent (2 Kent, Comm. 527), "in the nature of insurers, and are answerable for accidents and thefts, and even for a loss by robbery; they are answer- able for all losses which do not fall within the excepted cases of the act of God, or inevitable accident." And though notice might be sufficient to excuse them from thefts and robberies, it would not from ac- cidents occurring from the insufficiency of their own vehicles and machinery for the transportation of the goods. It is certain that different rules have been applied to the transportation of persons, and the transportation of goods. The case of Christie v. Griggs, 2 Camp. 80, was a case of the former description. The plaintiff was badly bruised by the breaking down of the stage coach of the defendant; and on the trial he proved the fact of breaking down from the failure of the ajcletree, and that he was severely injured. The defendant in- sisted that the plaintiff should go further, and show the insufficiency of the coach, or the unskilfulness of the driver; but Chief Justice Mansfield said that the plaintiff had made out a prima facie case, and it then lay with the defendant to show that his coach was as good a coach as could be made, and the driver was as skilful as could be found. The defendant did produce evidence of the skilfulness of the driver, and that the axle had been recently examined, and no defect discovered. The chief justice said that if the axletree was sound, as far as human eye could discover, the defendant was not liable. This case is relied on by the plaintiff in er- ror, and thus far would be strong in their favor, if the same rule was applicable to the carriers of persons and the carriers of goods; for it is not disputed that the rope which broke was apparently sufficient. But Sir J. Mansfield proceeds, and says, there is a dif- ference between a contract to carry goods and a contract to carry passengers; for the goods the carrier is answerable at all events, but tie did not warrant the safety of his pas- sengers. His contract with them was to pro- vide for their safe conveyance, as far as human care and foresight would go. The same doctrine, that so far as personal injury is concerned, the question is entirely one of negligence, is found in 2 Esp. 533; and Sharp V. Grey, 9 Bing. 457, sustains the same position. Chancellor Kent has briefly stated the law relating to this case: In the aggre- gate body of common carriers are included the owners of stage wagons and coaches. 2 Kent, Comm. 598. The proprietors of stage coaches do not warant the safety of pas- sengers in the capacity of common carriers; they are not responsible for accidents, but for want of due care; but as to the baggage of the passengers, the modern cases place coach proprietors upon the ordinary footing of common carriers. Id. 600, 601. The pro- prietors of steamboats for the transporta- tion of passengers and their baggage, are common carriers, and respSnsible for the baggage, without special compensation for it. Allen v. Sewall, 2 Wend. 327; 11 Johns. 109; 9 Wend. 114. It is clear, therefore, that the same care and diligence which would ex- cuse the carriers in case of accident to pas- sengers, would not excuse them for damage to or loss of goods. In the case of passen- gers, the carriers are responsible only for negligence; but in respect to their baggage, they are responsible as common carriers, and accident is no excuse. The reason for the distinction is not very apparent in the pres- ent state of society; but the difference seems to be settled upon authority. The notice, it has been intimated, was probably intended to guard against liability for theft, or robbery or mistake, 1 Pick. 54; but the notice would not excuse from actual negligence or misconduct. The loss in this case was by accident, but' by such an acci- dent as in a common carrier is accounted negligenc-e. Whether the loss happened by the negligence of the defendant or not, it happened by their acts, or the acts of their servants; and for such losses the notice ought not to excuse them. The notice is gen- eral, and according to its terms, imports en- tire irresponsibility under all circumstances; but it has never been understood to excuse the carrier from accidents arising from the breach of the implied agreement in all such cases, that the vessel, or coach, or vehicle, whatever it be, is sufficient for the busi- ness in which it is employed. 5 East, 428. As common carriers, the law imposes a lia- bility upon the defendants. That liability was qualified by the notice, so far as to ex- cuse them from losses happening by means of the conduct of others, from robbery or lar- ceny; but not from such losses as arise from the acts of themselves or their serv- ants. The result is, that although the proprietors of public conveyances are not responsible for injuries to the persons of passengers, un- less they happen from the want of such care CABRIEBS OP PASSENGERS. 221 and diligence as is characteristic of cautious persons, yet they are liable for the baggage of passengers, at all events, except such losses as arise from inevitable accident, or the enemies of the coimtry, where uo notice is given. Where notice is given that all baggage is at the risk of the owners, such notice excuses them from losses happening by theft or robbery, in addition to the ex- emptions from responsibility as common car- riers, but not from losses arising from actual negligence, or from the insufl&ciency of their machinery or vehicles. The loss in this case arose from the insufficiency of the ma- chinery; and although it could not be dis- covered by the eye, yet for this the defend- ants are responsible at all events. Judgment affirmed. 222 CARRIERS OF PASSENGERS. Fall of berth in sleeping car. Measure of carrier's duty. tTse of car o-araed by an- other corporation. Duty of inspection. Servants of another company in charge of car. Proof of plaintiffs poverty; of dependent family. Evidence erroneously admitted, but jury told to disregard it. PENNSYLVANIA CO. v. ROY. (102 U. S. 451.) Supreme Court of the United States. Oct., 1880. Error \o the circuit court of the United States for the Northern district of Illinois. J. T. Broolis and George Willard, for plain- tiff in error. John Van Arman, for defendant in error. Mr. Justice HARLAN delivered the opinion of the court. This is a writ of error from a judgment for the sum of $10,000, the amount assessed as damages sustained by the defendant in error, in consequence of personal injuries received vyhile riding, as a passenger, in a sleeping- car which belonged to the Pullman Palace Car Company, but constituting, at the time the injuries vyere received, a part of a train of cars managed and controlled by the Penn- sylvania Company, as lessee and operator of the Pittsburg, Fort Wayne, and Chicago Rail- way. The action was commenced in the su- preme court of Cook county, Illinois, against the Pennsylvania Company, the Pittsburg, Fort Wayne, and Chicago Railroad Company, and the Pullman Palace Car Company. It was subsequently dismissed by the plaintiff against all the defendants except the Penn- sylvania Company, and then removed for trial Into the circuit court of the United States for the Northern district of Illinois, where the judgment complained of was rendered. The facts set forth in the bill of exceptions, so far as it is material to detail them, are these: — On the 5th of Jtme, 1876, Roy, the defend- ant in error, purchased at the office of the lessee company; in the city of' Chicago, a "first-class railroad ticket" from that city to Philadelphia, over the line of that company, paying therefor the sum of .?14.40. At the same time and place, and of the same person, lie purchased a sleeping-car ticket, issued by the Pullman Palace Car Company, for the route between the same cities, and for that ticket he paid the additional sum of ipo. He took the train the same day, going immediate- ly into the section of the sleeping-car corre- sponding to fiis ticket. The next morning, at Alliance, Ohio, upon the invitation of a friend, travelling upon the same train, he entered the sleeping-car in which that friend was riding, and there en- gaged with him in conversation. While so engaged, the upper berth of the section in which they were sitting fell. Thereupon the porter of the sleeping-car came at once and put up the berth, saying it would not fall again. Shortly thereafter the berth fell a second time, striking the plaintiff upon the head, injuring his brain. Incapacitating him from pursuing his vocation, and necessitating medical treatment. After the second falling of the berth, the brace or arm supporting it was found to be broken. The evidence introduced by the plaintiff tended also to show that the Pennsylvania Company provided cars in which passengers having railroad tickets could ride without pur- chasing a sleeping-car ticket; that Roy had much experience in traveling, and would have gone into one of those cars had he not pur- chased a sleeping-car ticket; that at the time he purchased it he did not know what com- pany ran the sleepers, but upon taking the train he ascertained it was a Pullman car; that the Pullman Palace Car Company was engaged in furnishing cars to be run in the trains of railroad companies; that, besides the general conductor of the train, there was a conductor, in uniform, and a porter, whose duty it was to make up the berths and attend to the wants of passengers occupying the sleeping-car. Upon the trial the plaintiff introduced a time and distance card of the defendant cor- poration, issued, published, and circulated by that company during the year 1876, prior to the date of his injuries. That cSrd, referring to the "Fort Wayne and Pennsylvania R. R. line," stated that' three express trains left Chicago daily, one "with popular vestibule sleepiug-car," one "with drawing-room and hotel car," and one "witli drawing-room sleeping-car." It gave notice that "passage, excursion, and sleeping-car tickets" could be purchased at the defendant company's office in Chicago. RefeiTing to the "Fort Wayne and Pennsylvania line," the same card an- nounced that "no road offers equal facilities in the number of through trains, equipped with Pullman palace sleeping-cars." It states, among the advantages of the "Pittsburg, Fort Wayne, and Pennsylvania through line," that the latter was the "only line running three through trains, with Pullman palace- cars," and "the only line running sleeping- cars from Chicago and intermediate stations to Philadelphia without change." The same card gave the rates charged for berths and sections in Pullman sleeping-cars from Chi- cago to points east of that city. The defendant, to maintain the issues on its part, offered to prove — 1. That the sleeping-car in which the acci- dent occurred, and all the sleeping-cars then and theretofore on the defendant's line, since the 27th of January, 1870, were owned by the Pullman Palace Car Company, a corporation of the state of Illinois, and not by the defend- ant; that said sleeping-cars were run In the same trains with the defendant's cars; that holders of railroad tickets were entitled to ride in said sleeping-cars, provided they also held sleeping-car tickets. CARBIEUS OF PASSENGEKS. 223 2. That the Pullman Palace Car Company, and it only, issued tickets for sale, entitling passengers to ride in said sleeping-cars; that such tickets were plainly distinguishable from railroad tickets, and were sold at offices es- tablished by said company, and indicated as places for the sale of such tickets; that the plaintiff purchased the sleeping-car ticket of the same person of whom he bought the rail- road ticket; that the office where purchased indicated by plain lettering uix)n its door that it was a place for the sale of Pullman Palace Car Company tickets, as well as rail- road tickets. 3. That the Pullman Palace Car Company employed persons to take charge of its cars, and the latter, whilst in use, were in the im- mediate charge of a conductor and a porter employed by that company; that such con- ductor and porter were the only persons who had authority to manage and control the in- terior of said cars, and the berths and seats and the appurtenances thereto. To this proof the plaintiff objected, and the objection was sustained, to which ruling the •company excepted. The court thereupon charged the jury that the proof tended "to show that the injury was received by reason of the negligence of the defendant's agents or servants, or by some negligence in the construction of the car in which the plaintiff was riding." To that charge the company at the time excepted, up- on the ground that it was unsupported by the testimony, and because It assumed as a fact that the persons in charge of the sleeping-car were the company's agents or servants. The court further charged the jury that "the defendant has offered in your presence to prove that the car in which the plaintiff' was injured was not the car or the actual prop- erty of the defendant, but was the property of another corporation. But I instruct, as a part of the law of this case, that if the car compos- ed a part of the train in which the plaintiff and other passengers were to be transported upon their journey, and the plaintiff was in- jured while in that car, without any fault of his own, and by reason either of the defective constniction of the car or by some negligence on the part of those having charge of the car, then the defendant is liable." To that charge also the defendant excepted. We are of opinion that there was no sub- stantial error, either in excluding the evidence offered by the defendant, or in the charge to the jury. The court only applied to a new state of facts, principles very generally recog- nized as fundamental in the law of passen- ger carriers. Those thus engaged are under an obligation, arising out of the nature of their employment, and, on grounds of public policy, vigorously enforced, to provide for the safety of passengers whom they have as- sumed, for hire, to carry from one place to an- other. In Railroad Co. v. Derby, 14 How. 468, it was said that when carriers undertake to convey persons by the powerful and dan- gerous agency of steam, public policy and safety require that they be held to the great- est possible cai-e and diligence, — that the per- sonal safety of passengers should not be left to the sport of chance, or the negligence of careless agents. This doctrine was expressly affirmed in The New World v. King, 16 How. 469. In Stokes v. Saltonstall, 13 Pet. 181, af- firming the decision of Mr. Chief .Justice Taney on the circuit, we said, that although the carrier does not warrant the safety of the passengers, at all events, yet his undertaking and liability, as to them, go to the extent that he or his agents, where he acts by agents, shall possess competent skill, and, as far as human care and foresight can go, he will transport them safely. The principles there announced were approved in Railroad Co. v. Pollard, 22 Wall. 341, where, speaking by the present chief justice, we said that we saw no necessity for reconsidering Stokes v. Sal- tonstall. These and many other adjudged cases, cit- ed with approval in elementary treatises of acknowledged authority, show that the car- rier is required, as to passengers, to observe the utmost caution characteristic of very care- ful, prudent men. He is responsible for in- juries received by passengers in the course of their transportation which might have Toeen avoided or guarded against by the exercise upon his part of extraordinaiy vigilance, aid- ed by the highest skill. And this caution and vigilance must necessarily be extended to all the agencies or means employed by the car- rier in the transportation of the passenger. Among the duties resting upon him is the important one of providing cars or vehicles adequate, that is, sufficiently secure as to strength and other requisites, for the safe conveyance of passengers. That duty the law enforces with great strictness. For the slight- est negligence or fault in this regard, from which injury results to the passenger, the car- rier is liable in damages. These doctrines to which the courts, with few exceptions, have given a firm and steady support, and which it is neither wise nor just to disturb or question, would, however, lose much, if not all, of their practical value, if carriers are permitted to escape responsibility upon the ground that the cars or vehicles used by them, and from whose insufficiency injury has resulted to the passengers, belong to others. The undertaking of the railroad company was to carry the defendant in error over its line in consideration of a certain sum, if he elected to ride in what is known as a first-class passenger car; with the privilege, neverthe- less, expressly given in its published notices, of riding in a sleeping-car, constituting a part of the carrier's train, for an additional sum paid to the company owning such car. . As between the parties now before us, it is not material that the sleeping-car in question was owned by the Pullman Palace Car Com- pany, or that such company provided at its own expense a conductor and porter for such 224 CARRIERS OF PASSENGERS. car, to whom was committed the immediate control of its interior arrangements. The duty of the railroad company was to convey the passenger over its line. In performing that duty, it could not, consistently with the law and the obligations arising out of the na- ture of its business, use cars or vehicles whose inadequacy or insufficiency, for safe conveyance, was discoverable upon the most careful and tlaorough examination. If it chose to malie no such examination, or to cause it to be made; if it elected to reserve or exercise no such control or right of inspection, from time to time, of the sleeping-cars which it used in conveying passengers, as it should exercise over its own cars,— it was chargeable with negligence or failure of duty. The law will conclusively presume that the conductor and porter, assigned by the Pullman Palace Car Company to the control of the interior ar- rangements of the sleeping-car in which Roy was riding when injured, exercised such con- trol with the assent of the railroad company. For the purposes of the contract under which the railroad company undertook to carry Roy over its line, and, in view of its obligation to use only cars that were adequate for safe con- veyance, the sleeping-car company, its con- ductor and porter, were, in law, the servants and employes of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being convey- ed, was the negligence of the railroad com- pany. The law will not permit a railroad company, engaged in the business of carrying persons for hire, through any device or ar- rangement with a sleeping-car company whose cai-s are used by the railroad company, and constitute a part of its train, to evade the duty of providing proper means for the safe conveyance of those whom it has agi'eed to convey. 2 Kent, Comm. (12th Ed.) 600; 2 Pars. Cont. (Gth Ed.) 218, 219; Story, Bailm. §§ 601, 601a, 602; Cooley, Torts, 642; Whart. Neg. (2d Ed.) § 627 et seq.; Chit. Car. 256 et seq., and cases cited by the authors. It is also an immaterial circumstance that Roy, when injured, was not sitting in the par- ticular sleeping-car to which he had been originally assigned. His right, for a time, to occupy a seat in the car in which his friend was riding was not, and, under the facts dis- closed, could not be questioned. Whether the Pullman Palace Car Company is not also, and equally, liable to the defend- ant in error, or whether it may not be liable over to the railroad company for any dam- ages which the latter may be required to pay on account of the injury complained of, are questions which need not be here considered. That corporation was dismissed from the case, and it is not necessary or proper that we should now determine any question between it and others. Upon the trial below, the plaintiff was al- lowed, against the objection of the defendant, to make proof as to his financial condition. and to show that, after being injured, his sources of income were very limited. This evidence was obviously irrelevant. The plaintiff, in view of the pleadings and evi- dence, was entitled to compensation, and nothing more, for such damages as he had sustained in consequence of injuries received. But the damages wei-e not, in law, dependent in the slightest degree upon his condition as to wealth or poverty. It is manifest, however, from the record, that the learned judge who presided at the trial subsequently recognizee} the error committed in the admission of that testimony. After charging the jury that the measure of plaintiff's damages was the pecuni- ary loss sustained by him in consequence of the injuries received, and after stating the rules by which such loss should be ascertained, the court proceeded: "But the jury should not take into consideration any evidence touching the plaintift"'s pecuniary condition at the time he received the injury, because it is wholly immaterial how much a man may have ac- cumulated up to the time he is injured; the real question being, how much his ability to- earn money in tlie future has been impaired." Notwithstanding this emphatic direction that the jury should exclude from considera- tion any evidence in relation to the pecuniary condition of the plaintiff, the contention of the defendant is, that the original error was. not thereby cured, and that we should assume that the jury, disregarding the court's per- emptory instructions, made the poverty of the plaintiff an element in the assessment of dam- ages; and this, although the record discloses nothing justifying the conclusion that the jury disobeyed the directions of the court. To this position we cannot assent, although we are refeiTed to some adjudged cases which seem to announce the broad proposition that an error in the admission of evidence cannot afterwards be corrected by instructions to- the jury, so as to cancel the exception taken to its admission. But such a rule would be exceedingly inconvenient in practice, and would often seriously obstruct the course of business in the courts. It cannot be sustain- ed upon principle, or by sound reason, and is against the great weight of authority. The charge from the court that the jury should not consider evidence which had been improperly admitted, was equivalent to striking it out of the case. The exception to its admission fell when the error was subsequently correct- ed by instructions too clear and positive to be misunderstood by the jury. The presumption should not be indulged that the jury were too ignorant to comprehend, or were too unmind- ful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it nec- essary in every trial, where an error in the ad- mission of proof is committed, of which error the court becomes aware before the final sub- CAKRIEUS or PASSENGERS. 225 mission of the case to the jury, to suspend the trial, discharge the jury, and commence anew. A rule of practice leading to such results can- not meet with approval. There was, however, an error committed up- on the trial, to which exception was duly taken, but which does niDt seem to have been remedied by any portion of the charge ap- pearing in the bill of exceptions. The plain- tifC was permitted, against the objection of the defendant, to give the number and ages of his children,— a son ten years of age, and three daughters of the ages, respectively, of four- teen, seventeen, and twenty-one. This evi- dence does not appear to have been with- drawn tvam the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintitf had Infant children dependent upon him for support, and, consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well cal- BALBW. SEL. CAS.R.B. — 15 culated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, be- yond what was, under all the circumstances, a fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff's family it is impossible to determine with absolute cer- tainty; but the reasonable presumption is that it had some influence upon the verdict. The court,, in a manner well calculated to attract the attention of the jury, withdrew from their consideration the evidence in re- gard to the financial condition of the plain- tiff; but as nothing was said by it touching the evidence as to the ages of his children, they had the right to infer that the proof as to those matters was not withdrawn, and should not be Ignored in the assessment of damages. For this error alone the judgment is revers- ed, and the cause remanded for a new trial. So ordered. 226 CARHIEHS or PASSENGEUS. Sunday law. Presumptions as to violation. Carrier's duty, independent of con- tract. Diligence required. Condition of injury, not necessarily its cause. Exit from depot. Invitation to use, DELAWARE, LACKAWANNA & WEST- ERN R. R. CO. V. TRAUTWEIN. (52 N. J. Law, 169, 19 Atl. 178.) Court of Errors and Appeals of New Jersey. Feb. 20, 1890. Error to supreme court. Bedle', Miiirheid & Magie, for plaintiffs in error. Leon Abbett and Willitim F. Abbett, for defendant in error. DEPUE, J. Emma Traiitwein.tlie defend- ant in error, on Sunday, the 11th of Septem- ber, 1887, was a passenger on a train of the Delaware, Lackawanna & Western Railroad Company from New York city to Lyndliurst, N. J. Slie took passage in the company's train, leaving New York at 9 o'clock in the evening, and reached Lyndhurst about 9:35 p. M. She alighted from the train, and in leaving tlie station to reach the street fell over some railroad ties, and received injuries for which this suit was brought. On a ver- dict for the plaintiff below, and judgment thereon, this writ of error was brought, and errors assigned upon the rulings of the trial judge. The act concerning vice and immo- rality provides that no traveling, worldly em- ployment, or business, ordinary or servile la- bor, or work either upon land or water, (works of necessity and charity excepted,) sliall be done, performed, or practiced by any person or persons within this state on Sun- day. The penalty prescribed for violating this statute is the forfeiture of one dollar for every such offense, to be recovered upon con- viction, and paid for the use of tlie poor of the township in which the offense was com- mitted. Revision, p. 1227, § 1. The section contains a proviso that it should be lawful for any railroad company in the state to run one passenger train each way over its road on Sunday for the accommodation of the citi- zens of the state. This proviso has the ef feet not only to give to the company a right to run the specifled trains on Sunday, but also confers tlie right upon the citizen to use such trains for ordinary travel. Smith v. Railroad Co., 46 N. J. Law, 7. As between the company and a passenger on its train, it would seem that the latter would have the right to assume that the train on which he is received as a passenger is the train run under the protection of the proviso, whatever effect the duplication of trains might have in sub- jecting the company to the penalty. There is also some evidence that the purpose of the plaintiff in going to New York on that day was to obtain from a physician a prescription and get medicine for her mother, — a purpose that would probably exempt the plaintiff from the penalty prescribed by the act. But an instruction to the jury, put on record in the bill of exceptions, put the plaintiff's case en a broader ground. The trial judge as- Safe means of egress to be provided. sumed that the company was running this train in violation of the statute, and that the plaintiff was also traveling in violation of the statute, and instructed the jury that these circumstances did not debar tlie plaintiff of her right to recover. If this proposition be sound, it will not be necessary to consider the rulings of the trial judge in construing the proviso, and with respect to the purpose of the plaintiff's journey on that day on her right to recover. In Massachusetts, Maine, and Vermont it has been held adversely to the legal proposition adopted by the trial judge. In the federal courts, and in tlie courts of other sister states, the decisions have been in accordance with the ruling of the trial judge. A contract to carry made on Sunday, or to be performed on Sunday, is by force of the statute illegal and void. No ac- tion could be maintained for the breach of such a contract, nor for services performed under it, where the right of action rests ex- clusively upon a contract, express or implied. Reeves v. Butcher, 31 N. J. Law, 224. It is also clear that a plaintifi will fail where, to make a cause of action, he is compelled to rely upon an illegal contract. But the duty of persons engaged in these public employ- ments to safely and securely carry is inde- pendent of contract. It is a duty imposed by law from considerations of public policy, and arises from the fact that persons or property are received in the course of the business of such employments. Marshall v. Railroad Co., 11 C. B. 655; Martin v. Railroad Co., L. R. 3 Exch. 9; Gladwell v. Steggall, 5 Bing. N. C. 733; Pippin v. Slieppard, 11 Price, 400; Carroll v. Railroad Co., 58 N. Y. 126. In Austin v. Railroad Co., L. R. 2 Q. B. 442, a suit wa^ brought against a railroad com- pany by a child three years and two months old. The plaintiff's mother, carrying the plaintiff in her arms, took a ticket for herself, but not for the child, for passage on the de- fendant's railway. In the course of the jour- ney an accident happened, and the plaintiff's leg was broken. In a suit for this injury the defendants contended that they were under no contract with the plaintiff, and that they carried the plaintiff without any hire or fare paid for carrying him. The action was held to be maintainable. Blackbukn, J., said that "the right which a passenger by rail- way has to be carried safely does not depend on his having made a contract, but the fact of his being a passenger casts a duty on the company to carry him safely." The English cases to this effect are cited and commented oil in Foulkes v. Railroad Co., 5 C. P. Div. 157-169. The rule may be considered as set- tled that a railroad company, having accept- ed a passenger, is under an obligation to take due and reasonable care for his safety, and that that obligation arises by implication of law, independent of contract. To give the plaintiff a standing in court to sue for the in- CARRIEHS OF PA.S.SEXGEUS. 227 jury, she has no need of the aid of a contract which was illegal. Nor was the plaintiff's violation of the Sunday law, in a legal sense, the cause of h;ni- tion, m ed not be made by any resolution or declaration of the company, or of its agents. If to persons of ordinary understanding and discernment it appeared to be such a way, and by tlie company it was allowed to remain and be in use by passengers going to or from trains, any one going to and from a train as a passenger was authorized to make use of it. If the company permitted it to be done openly, so that persons of reasonable judg- ment and discernment would conclude it to be a means of entrance and exit, then any passenger was authorized to take it and use it. It is submitted to you as a question of fact whether, to an ordinary observer, this was held out as one of the passage- ways from the depot to the public street. If so, any pas- senger, unwarned, might use it as such. If 228 CAREIERS OF PASSENGERS. you slisuld so find, it is entirely immater^al who built the stairway or who kept it in re- pair." The duty of a railroad company, as a car- rier of passengers, does not end when the passenger is safely carried to the place of his destination. The company must also pro- vide safe means for access to and from its station for the use of passengers, and passen- gers have a right to assume that the means of access provided are reasonably safe. If there be two ways, one of which is faulty in construction or repair, a passenger using it, and injured by its faulty condition, will not oe debarred of his action, although the other, wliidi he might have used, was safer. Long- more V. Railroad Co., 19 C. B. (N. S.) 183, A company, having provided one safe and convenient way of ingress and egress to and from its station, may, as contended for by the company's counsel, suffer private per- sons, for their own convenience, to have and use another way of access across its depot grounds, and it may be that those who use such a way will do so at their peril, if they have notice of the private character of the way. But that is not this case. The pas- sage-way taken by the plaintiff led to the pub- lic street, and had every indication of having been provided for use by the public, as a way to and from the station. Under the charge of the court and the finding of the jury, it must be taken to be the fact that this way of passage was there by recognition, procure- ment, or consent of the company, and that by sufferance and use it had obtained such an appearance of a passage-way passengers were invited to use, as that persons of rea- sonable judgment and discernment would conclude it to be a means of entrance and egress. It was of a passage-way having these characteristics that the judge said that it was immaterial wlio built the stairway, or who kept it in repair. In Beard v. Railroad Co., 48 Vt. 101, there was a stairway for passengers through the company's depot building, and also a stair- way at each end of the passenger platform. The stairway at the north end was open at the top, and there was nothing to indicate that it was not for the use of passengers. In fact, that stairway was built by an ex- press company, and was used exclusiv.ely by the express company for removing express freiffht, and opened into the street, over a platform for loading and unloading express wagons. The plaintiff', a passenger, in at- tempting to pass down the stairway in' the dark, fell, and was injured. For this injury she sued the railroad company. The defend- ant's counsel requested the trial judge to charge the jury that the plaintiff could not recover unless she snowed that the lower platform, in stepping from which she was injured, was on the defendant's premises. The court declined to so instruct the jury, but told the jury that the plaintiff, to recov- er, must establish that the company was guilty of negligence in leaving the stairway where it left the upper platform open, and without any guard or notice to warn passengers that the stairway was not to be used as a way of passage to the street below, and that she was injured by such negligence or want of care on the part of the defendant witliout any neglect or want of care on iier part contrib- uting to the injury. This instruction was held to be correct. The court, in sustaining the instructions of the trial judge, speaking of the likelihood of a stranger to regard that stairway as designed to furnish a safe way of getting to the street, said. "If not so de- signed, and it was unsafe to a stranger for such a purpose in the darkness, it was the duty of the defendant to forefend against in- jury by closing up the head of the stairs, or by notifying in some effectual way against using those stairs for getting to the street. * * * In view of the unquestionable law, the request to which the exception was taken seems frivolous. The open stairs on the mar- gin of the platform led the plaintiff, without fault on her part, to the point of hann. * * * The fact that the bottom of the pitfall on which the plaintiff landed, and thereby received hurt, was beyond the line of ownership of the defendant, neither re- lieves the duty, nor mitigates tlie fault, of the defendant." In the case in hand, con- tributory negligence by the plaintiff was neg- atived by the jury. The case is here solely on the use of the passage-way by the plain- tiff, and the duty of the company with re- gaid to its condition and safety. We think the instruction of the trial judge on that sub- ject was correct. A passage-way having the characteristics mentioned hy the judge be- came by the company's act a passage-way which passengers were invited to use, with respect to which the company was under a duty 'to have it kept reasonably safe for use. A passenger using the way under such an invitation was not bound to inquire by whose contributions the stairway was erected or maintained. Nor was the company absolved from its duty in tlie premises by the fact that it erected and maintained at its own ex- pense another way of exit. The other ex- ceptions on the record have been examined. We find no error in the conduct of the trial, and the judgment should be afllrmed. Af- firmed unanimoiisly. CARRIERS OF PASSENGERS. 229 Duty of protection. Ticket calling for evidence to identify holder. Unreasonable requirements by conductor. Signature of party. Exceptions. NORFOLK & WESTERN R. R. CO. v. AN- DERSON. (90 Va. 1, 17 S. B. 757.) Supreme Court of Appeals of Virginia. June 15, 1893. Error to circuit court, Nansemond county. Action by W M Anderson against the Nor- folli & Western Railroad Company. There was judgment for plaintiff, and defendant brings error. Affirmed. The other facts fully appear in the follow- ing statement by LEWIS, P. : Error to judgment of circuit court of Nanse- mond county, rendered April 11, 1892, in an action of trespass on the case, wherein W. M. Anderson was plaintiff, and the Norfolk & Western Railroad Company was defendant. The action was brought to recover damages for the alleged wnmgful expulsion of the plaintiff from one of the defendant's passen- ger trains. There was a verdict and judg- ment for the plaintiff for $2,000 damages and costs. The declaration states, in substance, and the evidence shows, that on the 17th of March, 1890, the plaintiff purchased of the defendant companv a 1,000-mile or commuta- tion ticliet for travel or its road; that attach- ed to the ticket, and forming part of it, were certain printed conditions, the first and sec- ond of which were in these words: "(1) That this ticket is good only for the person in whose name it is issued, and shall be tak- en up. and forfeited, if presented by any oth- er person. (2) That when requested by the conductor, at the time the ticket is presented for passage, or the station baggage agent, when presented for the purpose of having baggage checked, I will sign my name, in the presence of either, on the back of the highest numbered coupons required for the trip, and will otherwise identify myself as the original purchaser of the ticket." At the bottom of the printed conditions (14 in number) the plaintiff was required to sign his name, which he did in the presence of the attesting wit- ness, W. C. Masi, city ticket agent of the de- fendant company at Norfolk. On the 24th of May following the plaintiff took passage on one of the defendant's passenger trains, leaving Norfolk in the morning, intending to go to Suffolk, a point on the defendant's road about 20 miles west of Norfolk, and thence, that afternoon, to Richmond, via Petersburgh. Before entering the train he piesented his ticket, then containing unused coupons for 400 miles of travel, to the de- fendant's baggage agent, who, without rais- ing any question as to his Identity, checked his baggage through Richmond. The plain- tiff was at the time a traveling salesman for the A. B. C. Chemical Company. When the conductor came around to collect fares, after the train left Norfolk, the plaintiff presented him his ticket, from which to extract the necessary coupons for travel between Norfolk and Suffolk. The conductor asked if the slg- to which the latter replied that it was, but he refused to recognize the ticket unless the plaintiff would identify himself. The latter then offered to sign his name as stipulated, but the condueto)' refused to accept that as evidence of Identltj, saying to the plaintiff that if he signed his name he would, of course, sign the name that was on the ticket, and, besides that, he (the conductor) was no judge of handwriting. The plaintiff then re- marked that he was a stranger In that sec- tion, that he knew no one on the train, and that he had no other means of identifying himself than by writing his name. The con- ductor still refused to accept such evidence, and Inquired of the plaintiff if he had any letters on his person, addressed to himself. To this the plaintiff replied that he had not; that his name was In his baggage, which had been checked through to Richmond. The conductor then insisted that he go into the baggage car, and get out of his baggage any letters therein, which he declined to do, as unreasonable. The train was then running at its usual rate of speed. The conductor next inquired if he had in his pocket an or- der book, such as drummers usuallj' carry, whereupon the plaintiff produced one, upon the fly leaf of which was dimly written. In pencil, "E. W. Wells, 248 Halifax St.," and on the same page, below Wells' name, was the following: "709 E. Clay St., Anderson," — the latter being also written in pencil, and more dimly. It does not appear, however, that the conductor saw, or had his attention called to, the last name, or that plaintiff him- self knew at the time it was there. In fact, he says he did not. The conductor, upon seeing Wells' name, inquired how it came to be there, to which the plaintiffi answered that he had copied It from the city directory of Petersburgh, as the name of a person he wished to see, whereupon the conductor took up ^he plaintiff's ticket, and told him Ue would have to pay his fare. To this the latter replied that he would not pay fare, and demanded a receipt for his ticket, which the conductor at first refused to give, unless he would pay fare. Before he took up the ticket, the conductor said to the plaintiff: "If you will return this ticket to the scalper from whom you got it, he will, no doubt, re- fund you your money." Meanwhile the train was nearing Suffolk. "When the train stop- ped at the depot," says the plaintiff, in his testimony, "I kept my seat, which was next to the window, and when the train was aboilt ready to start the conductor came to the window, and told me he could not carry me any further, and that I must get off. I told him I would not get off, and that I would stay on the train until I got a receipt for my ticket He then told me, if I would come into the office in the depot, he would write me a receipt. I went in, and he wrote a receipt in the name of E. W. Wells, seeing which, I told him that was not my name. He answered that was the name he knew me 230 CARRIERS or l'ASSE>fGEBS. by, and that he had every reason to believe it was my name. I then turned to the freight agent, telegraph operator, or some other employe, who was standing by, and asked him to witness that I protested that that was not my name, but he said he would have nothing to do with it. By that time the conductor had boarded the train, and the train had pulled out." The plaintiff then goes on to say that he transacted his busi- ness that day in SufEolk, and took the even- ing train for Richmond, paying his fare. Soon after the plaintifCs arrival in Richmond the secretary and treasurer of the chemical company reported the occurrences first men- tioned to the defendant's passenger agent in Richmond, who in turn communicated on the subject with the general passenger agent at Roanoke. These officers, however, al- though assured that the plaintiff's ticket had been unlawfully taken up,— that is that he was the bona flde purchaser of the ticket, as he had represented to the conductor, — re- fused to return it unless the plaintiff would surrender the conductor's receipts, which he decided to do. Indeed, the general passen- ger agent ultimately went further, for in his letter to plaintiff's attorney he wrote as fol- lows: "Dear Sir: Yours of yesterday, re- questing that thousand-mile ticket bearing name of W. M. Anderson, lifted by a con- ductor of this road, be sent to you, is re- ceived. I regret that I must decline this re- quest. The conditions of the contract under which this ticket was sold having been vio- lated, the right to use the same for trans- portation has been forfeited." At the trial there was little or no material conflict in the evidence. The foregoing is the substance of the case. Geo. S. Bernard and W. H. Mann, for plain- tiff' in error. Jackson Guy and E. E. Hol- land, for defendant in error. LEWIS, P., after stating the case, deliver- ed the opinion of the court. * In determining whether the judgment is right or not, it is important to observe, in the first place, what the contract between the parties was. Its language is that "when requested by the conductor, at the time this ticket is presented for passage, [the purclias- er of the ticket] will sign my name, in the presence of the conductor, on the back of the highest-numbered coupons, for the re- quired trip, and otherwise identify myself as the original purchaser of the ticket." This means that the person presenting the ticket will identify himself, when identification is required— First, by signing his name; and, secondly, in any other manner that may be reasonably required. It is not that he will sign his name, if that particular mode of identification is requested by the conductor, but that he will do so whenever called upon by the conductor for identifying himself. This was evidently the intention of the par- ties, and the words employed are not incon- sistent with such intention. Assuming this to be the true construction of the contract, we are of opinion that the plaintiff is enti- tled to recover. As was said in Railroad Co. V. Ashby, 79 Va. 130, "the carrier's duty is to carry his passetigers safely and respect- fully, and if he intrusts this duty to his servants the law holds him responsible for the manner in which they execute the trust." The same principle has been repeatedly af- firmed by the supreme court of the United States. "A common carrier," says that court, "undertakes absolutely to protect its passen- gers against the misconduct of its own serv- ants engaged in executing the contract," and, "whatever the act of the servant be,— one of omission or commission, whether neg- ligent or fraudulent.— if it be done in the course of his employment, the master is lia- ble." Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039. The defendant relies on the case of Railroad Co. v. Wysor, 82 Va. 250, but that case widely differs from the present. There the plaintiff, in willful vio- lation of the contract, tendered detached coupons for his passage, which the conductor refused to receive. The evidence, moreover, showed that he got on the train with the ex- pectation and intention of being ejected therefrom, with a view to making a case for damages, and this court very justly held that he was not entitled to recover. But here no such circumstances exist, nor is there any- thing upon which bad faith can be imputed to the plaintiff. When his offer to identify himself in the only mode specifically stipu- lated for was rejected, he was warranted in refusing to do more. Had he been permitted to sign his name, and had the conductor, up- on examining his signature, been left in doubt as to the sufficiency of the evidence, he might then have required any additional evidence of identity that was reasonable. But when he arbitrarily refused to receive the evidence which it was his primary duty to have accepted, accompanying his refusal, as he did, with gross insult to the plaintiff, which was afterwards repeated at Suffolk, he had no right to require the plaintiff' to "otherwi.se identity" himself. He had no rigiit, in other words, to repudiate a part of the contract and to require the plaintiff to comply with the residue. And it makes no difference that he declared himself "not a judge of handwriting." For the purposes of a case like this, at least, the company, in effect, contracted that he was. At all events, it cannot now escape liability on the ground that he was not. The contract must be taken in all its parts, and effect given to the whole. There was, moreover, a further vio- lation of the contract, in taking up the ticket, inasmuch as the only stipulated ground of forfeiture was the presentation of the ticket for passage by a person other than the original purchaser thereof; and, not only this, but, after the circumstances of the case CAIUIIERS OF PASSENGERS. 231 had been reported to the general passenger agent, the alter ego of the company, he re- fused to return the ticket, thus ratifying what had been done. We concur, therefore, in the view that the jury were not only war- ranted in finding for the plaintiff, but that the case is a proper one for exemplary dam- ages. The conduct of tlie conductor was not only illegal, but may be justly termed wanton and malicious. "Every unlawful act," said the court, speaking by Judge Staples, in Bor- land V. Barrett, 7G Va. 128, "done willfully or purposely, to the injury of another, upon slight provocation, is, as against such per- son, malicious, and the law so presumes." And the subsequent ratification by the com- pany of the acts complained of brings the case within the principle holding a corpora- tion liable in exemplary damages for the mis- conduct of its agents. Railway Co. v. Pren- tice, 147 U. S. 101, 13 Sup. Ct. 261. It is true the plaintifE was not forcibly ejected, hut he was told by the conductor, after his ticket had been taken up, that he must get off of the train; and what was done amount- ed, in contemplation of law, to an expulsion, though no force to remove bim was exerted. The next question, then, is whether the damages given by the jury are excessive. That tlie sum awarded is greater than the actual damages suffered by the plaintiff is not disputed. • But it is to be considered that when exemplary damages are allow- ed the object of the law is not only to recompense the sufferer, but to punish the offender, and thereby to deter others from like offending. In Day v. Woodworth, 13 How. 363, the court said: "It is a well- established principle of the common law that in actions of trespass, and all actions on the <;ase for torts, a jury may inflict what are called 'exemplary,' 'punitive,' or 'vindictive' damages upon a defendant, having in view the enormity of his oifense, rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doc- trine has been questioned by some writers, Tjut, if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the ques- tion will not admit of argument." And in numerous su"bsequent decisions of the same court the rale has been declared that when- ever the injui-y complained of has been In- flicted maliciously or wantonly, and with cir- cumstances of contumely or indignity, the jury are not limited to compensatoi'y dam- ages, but may give such exemplary damages as, in their opinion, are called for by the cir- cumstances of the case. Railroad Co. v. Quigley, 21 How. 202; Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501; Railroad Co. v. Harris, 122 V. S. 597, 7 Sup. Ct. 1286; Rail- way Co. V. Prentice, 147 U. S. 101, 13 Sup. •Ot. 261. The same doctrine was diffused by the court in Borland v. Barrett, 76 Va. 128. A corporation, like a natural person, may be held liable in exemplary damages for the act of an agent, whete the act is participated in or authorized, or, as in the present case, ratified, by the principals. Railway Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261. And, as the measure of the defendant's lia- bility must depend upon the particular cir- cumstances of each case, it is a matter large- ly left to the discretion of the jury, whose finding will not be disturbed, unless so out of the way as to evince passion, prejudice, par- tiality, or corruption in the jury. Borland V. Barrett, 76 Va. 128; Peshine v. Shepper- son, 17 Grat. 472, 488; Fairish v. Reigle, 11 Grat. 697; Railroad Co. v. White, 84 Va. 498, 5 S. E. 573; Zinc Co. v. Black's Adm'r, 88 Va. 303, 13 S. E. 452. Referring to this rule in the recent case of Ward v. White, 86 Va. 212, 9 S. E. 1021, which was an action for assault and battery, it was said: "The rea- son for holding parties so tenaciously to the damages found by the jury in personal torts is that in cases of this class there is no scale by which damages are to be graduated with certainty. They admit of no other test than the intelligence of the jury, governed by a sense of justice. It is, indeed, one of the principal causes in which trial by jury has originated." Applying this rule to the circumstances of the present case, the ver- dict must stand. It is true that the recov- ery is a large one; but it is not so dispropor- tioned to the injury infiicted, and the charac- ter of the offense, as to "shock the under- standing," or to induce the belief that the jury were influenced by improper motives. And when this can be afiirmed of a verdict, in a case of this sort, it would be an inva- sion of the province of the jury, and there- fore an abuse of power on the part of the court — especially an appellate court — to set it aside. It is contended, however, that the circuit court erred, at the trial, in failing to exclude certain illegal evidence, and that for this er- ror the judgment should be reversed. But there is nothing in this objection. It ap- pears that soon after the occurrences men- tioned in the declaration the plaintiff unsuc- cessfully attempted to travel on the defend- ant's road, on the conductor's receipt for his ticket. After this had been narrated to the jury the defendant's counsel objected to the evidence on the ground that it was not rele- vant to the case stated in the declaration, and ruled to exclude it. The judge ruled that the evidence was illegal, and said he would hear a motion to exclude it at a later stage of the proceeding. To this there was no exception, nor was the court's attention again called to the matter before the verdict was rendered, and that was a waiver of the objection. Telegraph Co. v. Hobson, 15 Grat 122, 138; Page v. Clopton, 30 Grat. 415, 429. This sufficiently disposes of the case, and renders it unnecessary to consider the as- signment of error in regard to the instruc- tion. It is enough to say that the case was submitted to the jury in substantial con- formity to the views expressed in this opin- ion, and that the judgment must be affirmed. 282 CAIIHIERS or PASSENGERS. Liability for moxiey in truai, tow limited. Notice to baggage master. Agency. ST. LOUIS SOUTHWESTERN RY. CO. v. BERRY et ux. (60 Ark. 433, 46 Am. St. Rep, 212,80 S.W.764.) Supreme Court of Arkansas. April 20, 1895. iVppeal from circuit court, Monroe county; James S. Thomas, Judge. Action by Pleas and Kate Berry against the St. Louis Southwestern Railway Company to recover for the loss of money shipped with baggage. From a judgment for plaintiffs, de- fendant appeals. Afflrmert Sam H. West and J. C. Hawthorne, for ap- pellant. M. J. Manning and David A. Gates, for appellees. WOOD, J. The appellant asked the follow- ing instructions: (1) "The jury are instruct- ed that a railway company is not liable for the loss of money shipped as baggage, in ex- cess of an amount necessary to be used while on a journey.' (2) "If the jury find from the evidence that the defendant is not engaged in tfansmitting money, it would ijot be liable for the loss of money, when shipped as bag- gage, even if its agents were informed that money was contained in the trunk shipped as baggage." The court refused these, .and, in effect, charged the jury that if a passenger, who had no notice of the company's instruc- tions to its agents forbidding the taking of money for transportation as baggage, deliv- ered to the agent of the railway company a trunk containing money, to be transported as baggage, and informed the agent who check- ed the trunk that it contained money, and the agent, after being so informed, received the same, that then, in case of loss, the carrier would be liable. The requests given and re- fused present the only question for our de- termination. The carrier is liable, as insurer, for money which the passenger, bona fidfe,' includes in his baggage to pay traveling expenses, and for personal use on his journey, provided no more is taken than is necessary or usual for passengers of like station, habits, and condi- tion in life, while on similar journeys. Hutch. Carr. §§ 682, 685, 688; Schouler, Bailm. §§ 669- 671; Story, Bailm. § 499; 8 Wood, R. R. § 401; Jordan v. Railroad Co., b Cush. 69; Ror. R. R. 988; Ang. Carr. § 115; 2 Beach, R. R. i 901; 2 Redf. R. R. 59. For any amount in excess of this,— which is a question for the jury,— the carrier is not liable, as such, unless he receives it with notice that the quan- tity is greater tlian is usually carried by pas- sengers under the same or similar circumstan- ces. And the passenger must observe the ut- most candor and good faith in presenting his baggage for transportation, for the carrier is only required to transport according to ap- pearances. If the passenger presents his bag- gage in a closed receptacle, such as is ordi- narily carried as baggage, in order to lay upon the carrier the extraordinary respon- sibility of insurer the passenger must inform him if it contains any articles which the car- rier is not boimd to transport as baggage. This for the reason that the carrier, when thus notified, may refuse to carry altogether, or accept and charge an additional sum to the passenger's fare for the onei-ous liability he thus assumes. Schouler, Bailm. § 669 et seq.; Hutch. Carr. § 685; Edw. Bailm. § 529; 3 Wood, R. R. §§ 401, 406, 408; Railroad Co. V. Fraloff, 100 U. S. 24; 2 Beach, R. R. 902; Davis V. Railroad Co., 22 111. 278; Railroad Co. V. Copeland, 24 111. 332. The baggage master is not out of the scope of his employ- ment when he receives more money for trans- portation as baggage than, by the rules of the company or instructions from his employ- er, he is authorized to receive, for the car- rier does carry some money as baggage. And the agent whose business it is to receive and check for baggage has the implied authority to bind his employer, the carrier, by virtue of the nature of his employment, and the duties incident to it. Hutch. Carr. § 688; 8 Wood, R. R. § 40S; Minter v. Railroad Co., 41 Mo. 508; Strouss v. Railway Co., 17 Fed. 209. As was said by a distinguished judge of New York: "The contract to carry the baggage of passengers, as incident to the contract to carry the person, does not become defined, as to particular baggage, its amounts, or other in- cidents, until the baggage is delivered to the baggage master." Isaacson v. Railroad Co., 94 N. Y. 278. We conclude that where a passenger, who is ignorant of the rules or instructions of railway companies forbidding their agents to receive monej' for transporta- tion as baggage, delivers to the baggage agent more money than the carrier is required to transport, and informs the agent of the amount, if he accepts it to ship as baggage, and a loss occurs, the carrier's common-law liability will attach. We are aware that a dift'erent rule prevails in some of the states, notably Massachusetts. Blumantle v. Rail- road Co., 127 Mass. 322; Ailing v. Railroad Co., 120 Mass. 121; Jordan v. Railroad Co., 5 Cush. 69. See, also, Bomar v. Maxwell, 9 Humph. 620; Collins v. Railroad Co., 10 Cush. 506. But the weight of authority is with the rule as we have announced it. Railroad Co. V. Baldauf, 16 Pa. St. 67; Hutch. Carr. § 685; Jacobs V. Tutt, 88 Fed. 412; Railroad Co. v. Fraloff, 100 U. S. 24; Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711; Railway Co. v. Shepherd, 8 Exch. 30; Minter v. Railroad Co., 41 Mo. 503; and other cases cited in brief of counsel for appellee. While most of these cases have reference to merchandise in some form, yet the rationale of the doctrine, as to it, is equally applicable to money where It is carried as baggage. As to what would be the rule if the money was accepted and carried as freight is nowhere presented. The proof on the part of plaintiffs showed that the agent who checked the trunk was informed of the amount of money it contained before he checKed it for transportation. The instruc- tions, therefore, being in harmony with the law, and the verdict of the jury having evi- dence to support it, the judgment of the Mon- roe circuit court is affirmed. CARKIEKS OP PASSENaERS. 233 Delivery of passenger's luggage. Warehoasesian. Failure to deliver raises pre- sumption of negligence. Connecting lin-is. BURNELL V. NEW YORK CENTRAL R. R. GO. (45 N. Y. 184.) Court of Appeals of New York. March 21, 1871. _ Action by a passenger to recover the value of lost baggage. From an order of the gen- eral term reversing a judgment for plaintiff, plaintiff appealed. Reversed. A. C. Morris, for appellant. James Mat- thews, for respondent. CHURCH, C. J. The plaintiff took passage, at Palmyra, on the defendants' road tor New York, and purchased a ticket and checked his trunk to the latter place. On his arrival In New York, the plaintiff, without calling for his baggage, went to Brooklyn, and the sec- ond day after his arrival presented his check and demanded his trunk, but it could not be found, and has not since been found. This action was brought to recover the value of the trunk and contents. The referee found that the trunk was lost through the negligence of the defendants and their servants, and that the plaintiff was entitled to recover, upon whicli a judgment was entered, which was reversed by the general tei'm in the first dis- trict, and a new trial ordered, from which the plaintiff appealed to this court. The supreme court placed its decision upon the ground that the defendants' liability ceas- ed with the transportation of the trunk by the Hudson River Railroad Company to New York, and its readiness to deliver it within a reasonable time after arrival, and that what- ever responsibility was incurred afterward, in keeping or storing it, was incurred by the latter company, for which the defendants were not liable. The correctness of this decision depends up- on the nature of the contract between carrier and passenger, in respept to the custody and care of baggage upon the failure of the own- er to call for it within a reasonable time aft- er its arrival at the place of destination. As to what is a reasonable time cannot be definitely determined, but must be left to the circumstances of each case. Up to the expiration of that period the strict liability of common carriers continues. After that a modified liability, analogous to that of ware- housemen only exists. The rule of exemp- tion from strict liability was carried to the utmost limit of propriety, to say the least of it, in Rotb v. Railroad Co., 34 N. Y. 548. It is unnecessary to attempt a definition of reasonable time, as applied to this subject in this case, because it is clear that sufficient time had elapsed to relieve the carrier from his peculiar liability as insurer of the prop- erty. But there still remained a duty or obligation on the part of the Hudson River Company, to exercise ordinary care in keep- ing and preserving the property until it was called for, or was disposed of according to law. The question is whether this obliga- tion, with its modified liability, was imposed by the contract of can-iage, or whether it was a new and indeisendent obligation aris- ing from the unprovided for and accidental circumstance of leaving the trunk in posses- sion of the carrier. If the latter is the cor- rect theory, then the defendants are not lia- ble, and the action should have been against the Hudson River Company; if the former, they are liable, because by their contract they assumed tlie responsibility of every duty and obligation imposed by the contract of carriage. The Hudson River Company were their agents in performing the contract. In considering such questions it is proper to regard the improved facilities of travel- ing, with its incidental contingencies, acci- dents and conveniences, and the usual mode of transacting such business, to the end that while on tlae one hand, onerous and unnec- essary duties should not be imposed upom the carrier by an unnatural or arbitrary con- struction of the contract, on the other hand,, that it sliould be so construed as to afford reasonable protection to the public. The rule applicable in the construction of all con- tracts, that existing facts and all the sur- rounding circumstances, are to be regarded' for the purpose of effectuating the intent of the parties is also to be applied. I think the duty or obligation referred to of storing the- property and exercising ordinary care to pre- serve and protect it upon the happening of the contingent event of its not being called for, was incurred at the time the contract was made, and is a part of the contract itself. It is to be presumed that the parties intended to provide for every contingency incident to the subject of the contract. Leaving baggage with a carrier by railroad, either for temporary convenience, from neces- sity, sickness or accident is not such an un- usual or exceptional circumstance, as to cre- ate a presumption that it was not within the contemplation of the parties at the time the- contract was made. The duty of exercising care over property thus remaining in their possession, is a part of the duty of carriers, incidental it is true' to their principal or main duty, but neverthe- less incumbent upon them, and it is no less & duty growing out of their relation of car- riers, because their liability is mitigated to that of ordinary bailees for hire. Besides this Is the ordinary mode in which this busi- ness has been transacted, as the evidence in this case shows, and as all railroad compa- nies are in the habit of doing. Baggage thus left is and always has been kept and cared for, and the manner of disposing of it, if not finally called for, was long since regulated by law (Laws 1837, p. 311), and it is presumed; that the parties contracted with reference to. the existing state of facts, and to the custom- ary manner of transacting such business. The other view terminates all relations be~ 234 CAKKIERS OP PASSENGEKS. tween carrier and passenger, immediately upon the expiration of tlie "reasonable time," within which the baggage must be called for, and transforms the carrier into a mere ac- cidental finder, or gratuitous bailee liable on- ly for gross negligence. In other words, it makes two contracts in every case where baggage is left, and complicates the rights and duties of the respective parties, and while it essentially impairs the security of the public, confers no substantial benefit up- on the carrier. Its tendency would be to induce carelessness and negligence, where care and vigilance are necessaiy. The fair construction of the contract is that the de- fendants agreed for a consideration to trans- port the plaintiff and his trunk to New York, and deliver the latter to him on its arrival, if called for, if not that, it should be properly stored, and reasonable care exercised to pre- vent injury or loss until it was called for, or was lawfully disposed of. This simplifies the transaction, carries out the intention of the parties, legalizes the uniform practice, and does justice to the carrier and the pub- lic. Although the rule on this subject has not been very definitely settled, yet the prin- ciples herein indicated are not new. Gary V. Railroad Co., 29 Barb. 35; Norway Plain Co. V. Boston & M. R. Co., 1 Gray, 271, and cases cited. These views in effect determine the liabili- ty of the defendants in this action. The Hudson River Company being the agents of the defendants in performing the contract, and the contract of storage, being a part of the original contract of carriage, it follows that the defendants are liable for the loss in this case if any one is liable. Allen, J., in 29 Barb. 35, said: "There was but one con- tract, one hiring, and one consideration paid for the carriage and storage of the baggage; the contract for storing resulting from and being an incident to the main contract for carriage. It follows that the party liable upon the main and express contract is liable upon the incidental and implied contract, and the Buffalo and State Line road, in the stor- age as in the carriage of the trunk must be deemed the agent of the defendant perform- ing its contract." Hart v. Railroad Co., 8 N. Y. 37; Quimby v. Vanderbilt, 17 N. Y. 30G. The only remaining question is whether a cause of action was established, based upon the negligence of the Hudson River Com- pany. The failure of that company to pro- duce the subject of bailment when demand- ed, prima facie established negligence and want of due care. When there is a total default to deliver the goods bailed, on de- mand, the onus of accounting for the de- fault lies with the bailee. Piatt v. Hibbard, 7 Cow. 497-500, note a; Schwerin v. McKie, 5 Rob. (N. Y.) 404, and cases cited. It Is claimed that the failure to produce the trunk, and the charge of negligence Is fuUy met by the evidence produced on the part of the de- fendants, that the building used for storing baggage was safe and secure and In charge of trusty agents and servants, and properly guarded night and day. There was no evi- dence as to how this particular trunk got out of the possession of the Hudson River Com- pany. If it had been burned or stolen, with- out fault on their part, the defendants would not have been liable. The evidence certainly shows a commend- able vigilance in the general arrangements to protect this class of property, but it fails to point out how or by what means this trunk was lost. The inference that it was deliv- ered to the wrong person by mistake is quite as legitimate as that it was stolen. To say that the servants were generally careful, does not establish as a question of law, that they were not careless in respect to this article. It was incumbent on the defendants to show that the loss of this trunk was not attributable to the want of care of their servants, and the evidence was such that the referee was justified in finding that they had failed to do It. If this trunk was delivered to the wrong person the circumstances should have been shown, otherwise it would be presumed neg- ligent, as no such delivery would be proper without the presentation of the duplicate check, or satisfactoiT- evidence of its loss, and of the ownership of the property. If the trunk had been delivered upon such evi- dence as vigilant, careful persons would re- gard as sufficient, the defendants might have been relieved from liability, but no evidence of this character was produced, and we think the finding of the referee was fully warrant- ed. The order granting a new trial must be re- versed, and the judgment affirmed. RAPALLO, J., dissents. ANDREWS, J., took no part. Order granting a new trial reversed, and judgment aflirmed. CARRIERS OF PASSENGERS. 235 Coupon through ticket. Contract to carry beyond terminus of first line, when in- ferable. Action against each carrier for his default. Baggage checked through. Action for its loss against first carrier. LOUISVILLE & NASHVILLE R. R. CO. v. WEAVER. (9 Lea, 38.) Supreme Court of Tennessee. April Term, 1882. Appeal from circuit court, Shelby county; C. W. Heiskell, Judge. Este.s & Ellett, for appellant. L. B. McFar- land, for appellee. COOPER, J. Ttie judge of the circuit court tried this case without a jurj-, and rendered judgment in favor of the plaintiff below, Jane E. Weaver, against the Louisville & Nashville Railroad Company for the amount claimed for loss of baggage, and the com- pany appealed. The trial judge found that the plaintiff pur- chased from the agent of the defendant at Memphis through coupon tickets for herself and family from Memphis, Tennessee, via Mi- lan, St. Louis and Omaha, to San Francisco, California, and started on the trip May 29, 1877; thather baggage was checked by defend- ant's agents at ilemphis from that city to Omaha; that this baggage was delivered in good order, on the same day, by the defend- ant, to the next connecting road at Milan in this state, and that the loss sued for oc- curred before the plaintiff with her baggage reached Omaha. The judge further found that the plaintiff', upon discovering her loss after she arrived at San Fi-ancisco, applied to the Union and Central Pacific Railroad Companies for compensation for the loss; that the companies denied any liability, but, upon the return trip of the plaintiff' in No- vember, allowed her a deduction of between one and two hundred dollars on the cost of transportation over their roads to Omaha, in consideration of her release of all claim against the said Union and Pacific Railroad ■ Companies for the alleged loss, and that the plaintiff agreed m writing to these terms. The tickets issued by the defendant to the plaintiff contained a separate coupon for each railroad company over whose road she would pass en route, the defendant's road only extending from Memphis to Milan. Each coupon contained a memorandum that it was issued by the defendant, the name of the railroad company owning that part of the line, and the names of the places at which that part of the line commenced and ended. The coupons did not purport on their face to be issued by the several companies, nor were they signed with any name. The only signature was that of the general ticket •agent at the end of the last coupon. The check given for the baggage was the usual metal check. The judgment rendered was for the full amount claimed without deduction. It is well settled that a railroad company, as a common carrier, may contract to carry to a point beyond the terminus of Its own line so as to become liable for its delivery at that point, and that the liability thus at- taching at the commencement will continue throughout the whole transit, all connecting lines of carriers employed in furthering and completing such transportation becoming its agents, for whose default it is responsible. Railroad v. Stockard, 11 Heisk. 568; Hutch. Carr. § 145. But the courts are not in accord as to what will, pi-ima facie, constitute such a contract. In England the courts from the first adopt- ed the rule, to which they have firmly ad- hered, that where a railroad company, as a common carrier, receives goods directed to a place beyond the terminus of its own line, without limiting its resijonsibility by express agreement, such receipt of the goods, so di- rected, is prima facie evidence of an under- taking to carry the goods to the place to which they are directed, and all connecting railroad companies or other carriers, along the route are merely the agents of the first company. The latter is alone subject to suit for any loss or damage to the goods, the other companies not being responsible to the own- er for want of privity of contract. Mus- champ V. Railway Co., 8 Mees. & W. 421. The same rule has been applied to a through contract for the carriage of a passenger and his baggage. Mycton v. Railway Co., 4 Hurl. & N. 415. The rule, founded as it is on common law principles, has much to recommend it by rea- son of Its uniformity and simplicity, and has been found to work well for the compara- tively short distances of carriage in the Brit- ish Islands. It has been followed by the courts of a number of states in this country, but modified generally so as to give an ac- tion against the carrying comjiauy actually guilty of the wrong out of which the cause of action arises, although not the original contracting company. All of the American courts, perhaps, except it may be of Georgia, concur in adopting the English rule, with the modification suggested wherever the contract is clearly a through contract, or the circum- stances show that the contracting comi)any has an interest, as partner or otherwise, in the entire route. Hutch. Carr. § 160. The courts of the state of Georgia seem to have adopted the English rule without qualifica- tion. Many of the state courts have been led to modify the rule not only in allowing the actually defaulting carrier, other than the first, to be sued, but in the matter of the prima facie evidence of a through contract and the burden of proof. The reason of the latter modification may, probably, be found in the greater distances of carriage in this country and the larger number of connecting lines. Another causefor the change of the burden of proof may be also found In the form of through ticket, known as the coupon ticket, used by our roads. 236 CAEHIEHS OF PASSENGERS. The question has been before this court on seyeral occasions. In the earliest of the cases, the suit was brought by a passenger against the first carrier for the failure of the second carrier to comply with the contract. The defendants sold to the plaintifE a through ticket from Nashville to Memphis. The de- fendants were the proprietors of a stage line for the first part of the route. Another com- pany owned the residue of the stage line to the point where it connected with the Mem- phis & Charleston Railroad, which ran thence to Memphis. By an arrangement be- tween these three parties, it was agreed that passengers might pay the whole fare at either end of the line, and receive a througn ticket. There was no proof to show that the plaintifC knew of the arrangement between the carriers. "We think," says Harris, J., who delivers the opinion of the court, "that when the defendants received the plaintiff's money, and gave him a through ticket, they thereby became bound for his transportation ou the entire line, and that he was entitled to a strict performance by the defendants of their undertaking, or to recover compensation in damages for any breach thereof. The arrangement between the defendants and the proprietors of other portions of the line was a matter with which the plaintifE had nothing to do. He was no party to that agreement, nor was he bound to look to any person for the perfoi-mance of the defendantc' undertaking but them- selves. If either party was guilty of a breach, that wa/. a matter for adjustment between themselves. By the arrangement, the proprietors at each end of the line were authorized to receive the fare, and give through tickets to show that they had un- dertaken and received pay for the trans- portation of the passenger over the entire line, and the proprietors of the other por- tions of the line were their agents, whom they trusted to perform that part of the con- tract which lay on that portion of the line owned by them. If this view of the subject be correct, and we think it is, then it was wholly immaterial whether the plaintiff knew of this arrangement or not. If the defend- ants, when they sold plaintifC the ticket, in- tended that he should risk the proprietors of the other portions of the line to carry him through, then they should have so stipulated, and informed him frankly of this arrange- ment, so that he might, with full knowledge of the facts, have elected whether he would pay the entire fare and take through tickets, or pay them only for .that portion of the line of which they were the proprietors, and make his own arrangements for the balance of the journey. They assumed, however, to carry him through, and are responsible for the undertaking." Carter v. Peck, 4 Sneed, 203. In the case of Railroad Co. v. Nelson, 1 Cold. 276, the suit was for the failure on the part of the railroad company to trans- port wheat, shipped to New York, in due time, under a special contract. "If," say the court, "the carrier, or his servant within the scope of his employment, enter into any special contract to deliver in any particu- lar time and place, even beyond the terminus of his particular route, it will be binding." In the case of Railroad Co. v. Rogers, 6 Heisk. 143, the plaintiff shipped freight at Chattanooga to Atlanta, Georgia, taking a re- ceipt from the defendant of the delivery of the articles "to be forwarded" by the East Tennessee and Georgia Railroad, subject to freight and the regulations of the company. The articles, consisting of provisions, were sijoiled and rendered valueless by the negli- gent detention of the agents of a connecting road. A recovery against the first company was sustained. Judge Freeman, who deliv- ers the opinion of the court, notices the con- flict between the English and American rul- ings, and cites the previous decisions of this court. "These cases," he says, "follow the principles of the English decisions, and we think lay down the sounder doctrine on the subject." The rule adopted is that a earner, by simply taking charge of goods delivered to him for carriage, marked and destined to a particular place beyond the terminus of his own road, without an express limitation of his responsibility, and a fortiori if he under- takes in terms to deliver, which is the mean- ing of the words "to be forwarded," Is bound to deliver at the place in due time. "It would," adds the judge, "seriously incommode the business of the country if, when property is shipped by one road, and must pass over more than this road in order to reach its des- tination, the shipper, in case of injury to his goods, is to inquire how many routes and how many different companies make up the line between the place of shipment and delivery, or to determine at his peril w-hich company is liable for the injury." In the subsequent case at the same ternj, of Railroad Co. v. McElwee, 6 Heisk. 208, the charge of the trial judge In accordance with the rulings in the previous cases, was sustain- ed. Judge Freeman, who delivers the opinion of the court, again reviews the confli<;ting de- cisions, and after expressing the opinion that the tendency of the later American rulings is in favor of the English rule, adds that the case of Carter v. Peck "is an emphatic en- dorsement of the English rule, and is the proper one in all such cases." The next case in our Reports raised the question of the liability of an intermediate can'ier to deliver goods promptly to the next carrier. The goods had been shipped at Phila- delphia on the Pennsylvania Central Rail- road, directed to Linton, Kentucky, under a . contract which limited the Pennsylvania Company to the terminus of its road, "and the proof indicated that the liability of the de- linquent road, the Louisville and Nashville Railroad, was to be governed by the same contract" Judge McFarland, who delivered CAEIilEUS or PASSENGERS. 237 the opinion of the court, refers to the two pre- cediug cases as then recently decided, and as holding, "that where there are two connecting lines of railway, and one road receives goods for transportation, marked and consigned to a point beyond the terminus of its own road, but on the line of the connecting road, the road fii-st receiving the goods will be held lia- ble for their delivery at their destination, un- less this liability is limited by express con- tract." "These cases," he adds, "somewhat change the rule followed by perhaps a ma- jority of the American cases, and follow the English rule." Railroad Co. v. Campbell, 7 Heisk. 253. Shortly afterwards, this court heard and disposed of the case of Furstenheim v. Rail- road Co., 9 Heisk. 238. The plaintiff bought from the Pennsylvania Railroad Company in New York a through coupon ticket from New York to Memphis. He received metallic checks for his baggage calling for Memphis. His coupon ticket was recognized and the coupons taken up by the railroad companies along the route. The proof tended to show that the breaking into the baggage and loss of contents, for which the suit was brought, occurred on the Pennsylvania road. The suit was against the last carrier. Nicholson, C. .T., in delivering the opinion of the court, under- takes to discuss the legal import and extent of the contract between the plaintiff and the Pennsylvania Company, concluding thus: "All we have before us is the simple fact that the Pennsylvania Central Company sold plaintiff tickets which were recognized as good along the whole line, and which carried him to Memphis. Without other facts and circum- stances proven, we are bound to hold that the Pennsylvania , Central Company under- took for itself to transport plaintiff and his baggage to Memphis, and that, as there is no privity shown between plaintiff and the de- fendants, the latter cannot be held responsi- ble for the loss shown to have occurred be- fore the baggage reached tlieir road." This conclusion, it will be observed, is also in ac- cord with the English rule, in so far as it re- quires privity of the contract to sustain an action against any of the carriers other than the one in default. Afterwards the direct question of the lia- bility of the intermediate carrier of freight for his own default was raised. A lot of fruit trees were shipped in North Carolina, direct- ed to the plaintiff at Jackson, Tennessee, which the defendant, the Memphis & Charles- ton Railroad Company, received from a pre- ceding carrier, and failed to deliver to the succeeding carrier, because the latter refused to pay the accrued freights. The trial judge instructed the jury that if the defendant re- ceived the packages, directed to the plaintiff at Jackson, Tenn., without any special con- tract limiting their undeitaking, the law im- posed upon the company the obligation to deliver the goods at their destination, and they would not be excused by the facts re- Ued on. "This," says Judge MeFarland, de- livering the opinion of the court, "is in ac- cord with the cases recently decided by the court of Railroad Co. v. McElwee. In these cases the question was fully discussed, and need not be again examined." Railroad v. Stockard, 11 Heisk. 5G8. The question again came before the court at the April term, 1877, at this place. Goods were shipped at Cincinnati, packed in boxes or cases, directed to the plaintiffs at Somer- ville, Tenn., and delivered to the Louisville, Cincinnati and Lexington Railroad Company. This company gave a receipt, specifying that the goods were to be transported, and deliv- ered to the Louisville and Nashville Railroad Company at Louisville, subject to certain con- ditions noted. One of the conditions was that the liability of the company should ter- minate upon the delivery of the goods to the next line of transportation. The defendant was the last carrier in the line. The boxes were delivered by the defendant to the plain- tiff, who, upon opening them, discovered that some of the goods were missing. It was ad- mitted "that the goods were lost somewhere between Cincinnati and Somerville, but where is not known." It was agreed, upon the au- thority of Furstenhelm's Case, that the action could not be maintained because there was no privity of contract between plaintiffs and defendant. But it was held that the reason only applied where the loss sued for occurred upon the line of the company with whom tlie contract was made, and that there was no intimation in Furstenhelm's Case that an ac- tion might not have been maintained against the last company for its own default. And It was expressly held that upon the delivery of the goods to the defendant, it became liable for them as a common carrier, subject at most only to the limitation stipulated for on its behalf by the first company. The judg- ment against the defendant was sustained upon the ground that the defendant admit- ted the receipt of tlie goods without objec- tion, and that it was impossible for the plain- tiffs to show where the loss occurred. "Upon grounds of public policy," says MeFarland, J., in delivering the opinion, "it is better to put upon the carrier the duty of tracing up the loss, and fixing It upon the party first lia- ble, than to put the duty on the owner." Rail- road Co. V. Holloway, 9 Baxt. 188. All of the foregoing cases recognize the English rule upon the receipt of freight by a carrier directed to a point beyond Its ter- minus, without any limitation upon its lia- bility, but modify it, in accordance with the great weight of American authority, so as to sustain an action against any carrier on the line for its own default. And by the last case it is determined that any carrier in the line is In default, and may be sued for a loss, where the carrier has received the packages or boxes containing the goods with- out objection. The case of Carter v. Peck, the only one which relates to the personal 2S8 CARRIEKS OF PASSENGEUS. rights of a passenger, and Furstenheim's Case, the only one relating to the baggage of a passenger, b.oth follow the English rule. A through ticket, without more, would prima facie render the first carrier liable upon the contract for the default of the other car- riers in the line of transportation in the case of passengers and their baggage, as in the case of the shipment of goods. A through contract as to the passenger will be a through contract as to his baggage, in the absence of a different arrangement. But, as in the case of goods, although the first car- rier may contract and be responsible for the entire transportation, any subsequent and auxiliary carrier to whose fault it can be traced will be liable to the owner for the loss of his baggage. Hutch. Carr. § 715. The courts of several of the states concur in holding the first company liable for the loss of baggage in the case of a through ticliet. Railroad Co. v. Copeland, 24 111. 332; Candee V. Railroad Co., 21 Wis. 582; Wilson v. Rail- road, 21 Grat. 654; Burnell v. Railroad Co., 45 N. Y. 184. But the check for the bag- gage may be given by one company for part of the line when the passenger has a through ticket from another company, in which case the former will be liable for the loss. Mc- Cormick v. Railroad Co., 4 E. D. Smith, 181; Straiton v. Railroad Co., 2 B. D. Smith, 184. So, no doubt, the check may, as in the case before us, be issued with the ticket, but for only part of the way. In such a case, the check may be considered as standing in the place of a bill of lading for the distance called for, and imposes the duty to carry and deliver accordingly. Dill v. Railway Co., 7 Rich. Law, 158; Wilson v. Railroad Co., 21 Grat. 634. It is conceded by the learned counsel of the plaintiff in error in the case before us that, by our decisions as given above, the whole liability in regard to passengers, bag- gage and freight, is thrown upon the com- pany issuing the ticket or bill of lading, ex- cept where an express stipulation to the contrary is shown. But he insists that the rule was changed by HoUoway's Case, 9 Baxt. 188, and Sprayberry's Case, 9 Heisk. 852, 8 Baxt. 341. But Holloway's Case, as we have seen, only extends the modification of the English rule, by which the American courts allow an action against the actual de- faulting carrier in addition to the first car- rier, so as to give the action against any of the carrying companies shown to have re- ceived the goods without objection, where it is impossible for the plaintiff: to show in what part of the route the loss occurred. And in Sprayberry's Case, the court, while exonerating the first carrier from liability for the loss of life of a passenger by the negligence of another carrier on the line un- der the circumstances, decided nothing in re- gard to the liability for the loss of the bag- gage, remarking that there were authorities holding that a different rule applied to pas- sengers from the rule applicable to freight and baggage. Railroad Co. v. Sprayberry, 9 Heisk. 857. In that case, Sprayberry pur- chased from an agent of the Nashville & Chattanooga Railroad Company, at Chatta- nooga, tickets for himself, wife and two children, from that place to Shreveport, Louisiana. The tickets were coupon tickets, and indicated the route to be by the Nash- ville & Chattanooga road to Nashville, and by other connecting roads to Memphis, and from that point to Shreveport by steamboat. While en route on the Mississippi river, and in the state of Mississippi, an accident oc- curred, by which the wife and children were drowned. It appeared in proof that the dif- ferent lines of road were separate and dis- tinct, owned and controlled by difCerent agents and officers, and that there was no contract or privity between them in regard to carrying passengers except the arrange- ment to seU through tickets. Under these circumstances, the court held that the first company was not liable to the liusbaud for the damages given to him by a statute of the state of Mississippi for the loss of his wife and children through the fault of the steam- boat company. "We are of opinion," says the court, "that in such cases the company selling the ticket shall be regarded as the agent of the other lines, when the tickets themselves import this, and nothing else ap- pears." The form of the tickets is not given, but the language of the opinion fairly implies that they showed upon their face the agency of the issuing company, which might be ei- ther in words or by each coupon purporting to be the ticket of the company over whose connecting line it was to be used. Such was the form of the ticket in Milnor v. Rail- road Co., 53 N. Y. 363. The plaintiff bought from the defendant a ticket of two coupons to Sheffield, and received a through check for his trunk. Each coupon purported to be the ticket of one of the two companies over whose roads the passenger was to trav- el, containing the name of the company, and being signed by different officers. In such a case, each coupon may well be treated as the separate ticket of a company issued by the selling company as agent. In the case before us, the ticket, it will be remembered, is in form the ticket of the defendant, the coupons only designating the company over whose road the particular coupon was to be used, and the termini of the route. If, as suggested by the learned counsel of the plaintiff in error, the presumption of law for or against the first company arises from the form of the ticket, we cannot say that the form adopted, although with coupons, shows it to be anything more than the ticket of the issuing company. It is substantially like the ticket, with three coupons for three several companies, in Hart v. Railroad Co., 8 N. Y. 37, where the baggage of the passen- ger was checked through, and the defendant CAKRIEKS OF PASSENGBUS. 239 held liable for its loss as the company is- suing the ticket and receiving the baggage, although owning the last road on the route. Xhe weight of American authority undoubt- edly is that one carrier may sell to a pas- senger its own ticket, and at the same time the ticket of connecting lines, entitling the passenger to througli transportation over all the Unes, and may receive the fare for the whole distance, without becoming responsi- ble for the carriage of the passenger beyond its line. The tickets for the several lines are in such cases known as coupon tickets, and each ticliet, apparently without refer- ence to the form, being considered as the separate contract of the carrier over whose route it entitles the holder to be carried. The presumption is that the carrier who sells the tickets, nothing else appearing, sells them as the agent of the other lines, and the coupons are regarded and treated as the contracts of the respective carriers precisely as if they had been sold by the carriers themselves instead of by the common agent. Hutch. Carr. § 152, and note. Even in this view, it would not follow that the liability of the carriers for the passenger's baggage would be the same, or governed by the same rule as the liability for the passenger. The reason is obvious. There can never be any doubt as to the carrier by whose fault the passenger is injured, or the personal contract with him violated. While, on the other hand, there may be the same difficulty in ascertaining the carrier at fault in re- gard to baggage as in the case of ordinary freight. We are of opinion, therefore, that the carrier contracting to Carry the baggage of a passenger by checking it to a given point becomes liable by the contract for its safe carriage, in the same way and to the same extent as the carrier of goods. The check is in legal effect a bill of lading for the baggage. In this view, upon the finding of the trial judge that the loss occurred before reaching Omalia, the defendant became liable to the plaintiff for the value of the property taken from the trunks of the plaintiff. It is equal- ly clear that the Union and Central Pacific Railroad Companies, whose roads lay be- yond Omaha, were not liable to the plain- tiff for the loss, nor in any way in default. Not being co-wrongdoers with the defend- ant, no payment made by them to the plain- tiff, and no release, in consideration of such payment, made by the plaintiff to them, could operate as a release of the liability of the defendant. And the transaction can only he treated as the compromise of a pos- sible litigation, or as a mere gratuity. It would meet the abstract equity of the case to give the defendant the benefit of a credit for the value of the deduction on the return tickets over the roads of those companies, but no principle has been suggested by coun- sel, or occurred to us, upon which the al- lowance can be made. There is no error in the judgment, and it must be affirmed. 240 CAIIBIERS OF PASSENGERS. Bonnd-trip tourist ticket. Varying by parol. Provision for stamping ua* iden- tification. No agent to be found to stamp it. Connecting lines. First carrier stipulating not to be liable beyond its line. Admissions by demurrer. Matter of law. Waiver of conditions by conduetor. MOSHER V. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RY. CO. (127 U. S. 390, 8 Sup. Ct. 1324.) Supreme Court of the United States. May 14, 1888. In error to the circuit court of the United States for the Eastern district of Missouri. This was an action by a passenger against a railroad corporation for putting him off one of its trains. The allegations of the amended petition were in substance as fol- lows: On April 9, 1883, the plaintiff pur- chased of the defendant, at St. Louis, a ticket expressed on its face to be "good for one first-class passage to Hot Springs, Ark., and return, when officially stamped on back hereof, and presented with coupons attach- ed," and containing a "tourist's contract," signed by the plaintiff, as well as by the ticket agent, by which, "in consideration of the reduced rate at which this ticket is sold," the plaintiff agreed, "with the several com- panies" over whose lines the ticket entitled him to be carried, upon certain terms and conditions, of which those material to be here stated were as follows: "(1) That in selling this ticket the St. Louis, Iron Moun- tain & Southern Railway Company acts only a;S agent, and is not responsible beyond its own line;" "(4) that it is good for going pas- sage only five (5) days from the date of sale, as stamped on back and written below; (5) that it is not good for return passage unless the holder identifies himself as the original purciiaser to the satisfaction of the author- ized agent of the Hot Springs Railroad at Hot Springs, Ark., within eighty-five (85) days from date of sale; and, when officially signed and dated in ink and duly stamped by said agent, this ticket shall then be good only five (5) days from such date; (6) that I, the original purchaser, hereby agree to sign my name, and otherwise identify myself as such, whenever called upon to do so by any conductor or agent of the line or lines over which this ticket reads, and on my failure or refusal that this ticket shall become there- after void;" "(]2) and it is expressly agreed and understood by me that no agent or em- ploye of any of the lines named in this ticket has any power to alter, modify, or waive in any manner any of the conditions named in this contract." Attached to the ticket were various coupons, a portion of which entitled the plaintiff to be carried from Malvern to Hot Springs and back on the Hot Springs Railroad. The plaintiff was accordingly car- ried as a passenger from St. Louis to Hot Springs. On May 9, 1883, the plaintiff, de- siring to return to St. Louis, "presented him- self and said ticket at the business and tick- et office and depot of said Hot Springs Rail- road, the said business and ticket office and depot being then and there the business of- fice of the authorized agent of said Hot Springs Railroad, at said Hot Springs, dur- ing business hours, and a reasonable time before the time of departure of its train for St. Louis that the plaintiff desired to take and did take," and offered to identify him- self as the original purchaser of the ticket to the satisfaction of said agent, for the pur- pose of entitling himself to return thereon to St. Louis, and of permitting the ticket to be officially signed, dated in ink, and duly stamped by said agent; but the defendant and the Hot Springs Railroad Company fail- ed to have said agent there at any time be- tween the time when the plaintiff so pre- sented himself and his ticket and the time of departure of the train, "whereby," the pe- tition averred, "said defendant and its agent, and the agent of said Hot Springs Railroad at Hot Springs, Ark., failed and refused, with- out any just cause or excuse, to identify the plaintiff' as the original purchaser of said ticket, or to officially sign, date in ink, and stamp said ticket." The plaintiff thereupon boarded the train of the Hot Springs Railroad at Hot Springs, and was carried thereby to Malvern, where, on the same day, he boarded a regular passenger train of the defendant for St. Louis, and, upon the conductor thereof demanding his fare, presented his ticket, in- formed him of his presentation of it at the office at Hot Springs, of his offer there to identify himself, and of the absence of the agent, as aforesaid, and offered to sign his name, and otherwise identify himself to the Conductor, and demanded to be carried to St. Louis by virtue of said ticket; but the con- ductor refused, and put him off the train, and left him at a way station, where he was obliged to remain, without fire or other pro- tection against the cold, until he took the mid- night train of the defendant for St. Louis, first paying fare; "by reason of each and all of which wrongful and unlawful acts afore- said of defendant, its agents and employes, the plaintiff says he has been damaged in the sum of ten thousand dollars, for which he asks judgment." The circuit court sustained a demurrer to this petition, and gave judg- ment for the defendant. Its opinion delivered upon sustaining this demurrer, and sent up with the record, is leported in 23 Fed. 326; and its opinion at a former stage of the case, in 5 McCrary, 462, and in 17 Fed. 880. Clinton Rowell, for plaintiff in error. John F. Dillon and Winslow S. Pierce, Jr., for de- fendant in error. Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court. The right of this plaintiff to be carried upon the defendant's train, without paying addi- tional fare, does not depend upon his having been received as an ordinary passenger, or upon any representations made by a ticket CARKIEKS or PASsEJfGERS. 241 seller, conductor, or other officer of the com- pany as to his right to use a ticjiet, but whol- ly upon the construction and effect of the written contract, signed by him, upon the face of the ticket (of the kind called "tourist's" or "round-ti-ip" tickets) sold him by the de- fendant for a passage to Hot Springs, and back, by which, in consideration of a reduced rate of fare, he agreed to the following terms: By the fifth condition the ticket "Is not good for return passage unless the holder identi- fies himself as the original purchaser to the satisfaction of the authorized agent of the Hot Springs Railroad at Hot Springs, Ark., within eighty-five days from date of sale; and, when officially signed and dated in ink and duly. stamped by said agent, this ticket shall then be good only five days from such date." The clear meaning of this condition is that the ticket shall not be good for a re- turn passage at all, unless, within 85 days from its original date, the holder not only identifies himself as the original purchaser to the satisfaction of the agent named, but that agent signs, dates, and stamps the ticket; and that, upon such identification and stamp- ing, the ticket shall be good for five days from the new date. The sixth condition, by which the ticket is to be void if the plaintiff does not sign his name, aud otherwise identify him- self, whenever called upon so to do by any condnctor or agent of either of the lines over which he may pass, is evidently intended as an additional precaution against a transfer of the ticket either in going or in returning, and not as an alternative or substitute for the previous condition to the validity of the ticket for a return trip. The twelfth condition states that the plaintiff understands and ex- pressly agrees that no agent or employg of any of the lines has any power to alter, modi- fy, or waive any of the conditions of the con- tract. By the express contract between the parties, therefore, the plaintiff had no right to a return passage under the ticket, unless it bore the stamp of the agent at Hot Springs. Such a stamp was made by the contract a condition precedent to the right to a return passage, and no agent or employe of the de- fendant was authorized to waive that condi- tion. The plaintiff contends that, as there was no agent at the office at Hot Springs, to whose satisfaction he could .identify himself, and by whom he could have his ticket stamp- ed, when he presented himself with his ticket at that office, within a reasonable time before he took the return train, he had the right to be carried from Hot Springs to St. I>ouis un- der his ticket without having it stamped, and may therefore maintain this action against the defendant for the act of its conductor in expelling him from the connecting train upon the defendant's road. If this defendant had been the party responsible for not having an agent at Hot Springs, the question thus pre- BALDW. SEL. CA6. R. IU-— 18 sented would have been of some difficulty, al- though we are not prepared to hold that, even under such circumstances, the plaintiff's rem- edy would not De limited to an action for the breach of the Implied contract to have an agent there, and to the expense which he thereby incurred. But this case does not re- quire the expression of any opinion upon that question. By the first condition of the ccta- tract contained in the plaintiff's ticlvet, the defendant is not responsible beyond its- own line. Consequently it was not responsible to the plaintiff for failing to have an agent at the further end of the Hot Springs Railroad. The agent who was to identify tha passenger, and stamp his ticket there, was the agent of the Hot Springs Railroad Company, and is so described in the ticket, as well as in the pe- tition. If there was any duty to have an agent at Hot Springs, it was the duty of that company, and not of the defendant. The d'emurrer admits only the facts alleged, and does not admit the conclusion of law, insert- ed in the petition, that by reason of the facts previously set forth, and which do not sup- port the conclusion, the defendant and its agent failed and refused, without just cause or excuse, to Identify the plaintiff as the orig- inal ijurchaser of the ticket, or to sign, date, and stamp it. Hitchcock v. Buchanan, 105 U. S. 416. The omission to have an agent at Hot Springs not being a breach of contract or of duty on the part of this defendant, the case is relieved of all difficulty. The conductor of the defendant's ti'ain, upon the plaintiff's pre- senting a ticket bearing no stamp of the agent at Hot Springs, had no authority to waive any condition of the contract, to dis- pense with the want of such stamp, to in- quire into the previous circumstances, or to permit him to travel on the train. It wovild be inconsistent alike with the express terms of tlie conti'act of tlie parties, and with the proper performance of the duties of the con- ductor, in examining the tickets of other pas- sengers, and in conducting his train with due regard to speed and safety, that he should undertake to detei-mine, from oral statements of the passengers or other evidence, facts al- leged to have taken place before the begin- ning of the return trip, and as to which the contract on the face of the ticket made the stamp of the agent of the Hot Springs Rail- road Company at Hot Springs the only and conclusive proof. The necessary conclusion is that the plain- tiff cannot maintain this action against the defendant for the act of its conductor in put- ting him off the train. Townsentl v. Railroad Co., 56 N'. Y. 295; Shelton v. Railway Co., 29 Ohioi St. 214; Frederick v. Railroad Co., 37 Mich. 342; Bradshaw v. Railroad Co., 135 Mass. 407; Murdock v. Railroad Co., 137 Mass. 293, 299; Railroad Co. v. Iteming, 14 Lea, 128j Judgment affirmed. 242 CAinilERS OF PASSEISTGERS. Exemplary damages for act of conductor. Question of general jurisprudence. Wantonness. Company not personally implicated. be taken ti the station house, and he was LAKE SHORE & MICHIGAN SOUTHERN RY. CO. V. PRENTICE. (147 U. S, 101, 13 Sup. Ot. 261.) United States Supreme Court. Jan. 3, 1893. In error to the clrcnlt court of the United States for the northern district of Illinois. Action by Chalmer M. C. Prentice against the Lake Shore & Michigan Southern Rail- way Company to recover damages for unlaw- ful arrest of plaintiff, while a passenger, by the conductor of one of the company's trains. Verdict and judgment for plaintiff. Defend- ant brings error. Reversed. Statement by Mr. Justice GRAY: This was an action of trespass on the case, brought October 19, 18S0, in the circuit court of the United States for the northern district of Illinois, by Prentice, a citizen of Ohio, against the Lake Shore & Michigan Southern Railway Company, a corporation of Illinois, to recover damages for the wrongful acts of the defendant's servants. The declaration alleged, and the evidence introduced at the trial tended to prove, the following facts: The plaintiff was a physi- cian. The defendant was engaged in operat- ing a railroad, and conducting the business of a common carrier of passengers and freight, through Ohio, Indiana, Illinois, and other states. On October 12, 1886, the. plain- tiff, his wife, and a number of other persons were passengers, holding excursion tickets, on a regular passenger train of the defend- ant's railroad, from Norwallr, in Ohio, to Chicago, in Illinois. During the journey the plaintiff purchased of several passengers their return tickets, which had nothing on them to show that they were not transfera- ble. The conductor of the train, learning tJiis, and knowing that the plaintiff had been guilty of no offense for which he was liable to arrest, telegraphed for a police officer, an employe of the defendant, who boarded the train as it approached Chicago. The con- ductor thereupon, in a loud and angry voice, pointed out the plaintiff to Hie officer, and ordered his arrest; and the officer, by direc- tion of the conductor, and without any war- rant or authority of law, seized the plaintiff, and rudely searched him for weapons. In the presence of the other passengers, hurried him into another car, and there sat down by him as a watch, and refused' to tell him the cause of his arrest, or to let him speak to his wife. iWhile the plaintiff was being removed into the other car, the conductor, for the purpose of disgracing and humiliatmg him with his fel- low passengers, openly declared. that he was under arrest, and sneeringly said to the plain- tiff's wife, "Where's your doctor now?" On arrival at Chicago, the conductor refused to let the plaintiff assist his wife with her par- cels in leaving the train, or to give her the check for their trunk; and, in the presence of the passengers and others, ordered him to forcibly taken there, and detained until the conductor arrived; and, knowing that the plaintiff had been guilty of no offense, en- tered a false charge against him of disorder- ly conduct, upon which he gave bail .and was released, and of wliich, on appearing before a justice of the peace for triiil on the next day, and no one appearing to prosecute him, he was finally discharged. The declaration alleged that all these acts were don6 by the defendant's agents in the Une of their employment, and that the de- fendant was legally responsible therefor; and that the plaintiff had been thereby put to expense, and greatly injured in mind, body, and reputation. At the trial, and before the introduction of any evidence, the defendant, by its counsel, admitted "that the an-est of the plaintiff was wrongful, and that he was entitled to recover actual damages therefor;" but afterwards excepted to each of the following instructions, given by the circuit judge to the jury: "If you believe the statements which have been made by the plaintiff and the witnesses who testified In his behalf, (and they are not; denied,') then he is entitled to a verdict whichi will fully compensate him for the injuries, which he sustained, and in compensating him you are authorized to go beyond the amount that he has actually expended in employing counsel; you may go beyond the actual out- lay in money which he has made. He was ari-ested publicly, without a warrant, and without c.-itisj; and if such conduct as has been dptailed before you occurred, such as the remark that was addressed by the con- ductor to the wife in the plaintiff's prt-scuce, in compensating him you have a right to con- sider the humiliation of feeling to which he- was thus publicly subjected. If the com- pany, without reason, by its imlawful and op- pressive act, subjected him to this public hu- miliation, and thereby outraged his feeUngs, he is entitled to compensation for tliat inju- ly and mental anguish." "I am not able to give you any rule by which ,v()U can determine that; but, bear in. mind, it is strictly on the line of compensa- tion. The plaintiff is entitled to compensa- tion In money for humiliation of feeling and spirit, as well as the actual outlay which he has made In and about this suit." "And, further, after agreeing upon the amount which will faii-ly compensate the plaintiff for his outlay and Injured feelings, you uiay add souiothing by way of punitive damages against the defendant, which is sometimes called 'smart money,' if you are satisfied that the conductor's conduct was ille- gal, (and it was illegal,) wanton, and oppress- ive. How much that shall be the court can- not tell you. You must act as reasonable men, and not indulge vindictive feelings towards the defendant." "If a public corporation, like an individual,. CAERIEHS OF PASSENGERS. 243 acts oppressively, wantonly, nbuses power, and a citizen in tliat way is injured, tlic citi- zen, in addition to strict compensation, may have, tlie law sayis, sometliing in the way of sinart money; something as punishment for tlie oppressive use of power." Tlie jury returned a verdict for the plaintifE in tlie sum of $10,000. The defendant moved for a now trial, for error in law, and for ex- cessive damages. The plaintiff thereupon, by leave of court, remitted the sum of $4,000, and asked that judgment be entered for $6,- 000. The court then denied the motion for a new trial, and gave judgment for the p'.aia- tiff for 16,000. The defendant sued out this writ of error. Geo. G. Greene, for plaintiff in error. W. A. Foster, for defendant tn error. Mr. Jtistice GRAY, after stating the case as above, delivered the opinion of the court. The only exceptions taken to the instruc- tions at the trial, wliich have been argued in this court, are to those on the subject of puni- tive damages. The single question presented for our de- cision, therefore, is whether a railroad cor- poration can be charged with punitive or ex- emplary damages for the illegal, wanton, and oppressive conduct of a conductor of one of Its trains towards a passenger. This question, like others affecting the lia- bility of a railroad corporation as a common carrier of goods or passengers, — such as its right to contract for exemption from respon- sibility for its own negligence, or its liabillt.y beyond its own line, or its liability to one of its servants for the act of another person in its employment,— is a question, not of local law, but of general jurisprudence, upon wliich this cotirt, In the absence of exijress statute regulating the subject, will exercise its owu judgment, uncontrolled by the de- cisions of the courts of the several states. Railroad Co. v. Lockwood, 17 Wall. 357, 3G8; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 443, 9 Sup. Ct. Rep. 4G9; Myrick V. Railroad Co., 107 TJ. S. 102, 109, 1 Sup. Ct. Rep. 425; Hough v. Railway Co., 100 U. S. 213, 226. The most distinct suggestion of the doc- trine of exemplary or punitive da-.ragos in England before the American Revolution is to be found in the remarks of Chief Justice Pratt (afterwards Lord Camden) in one of the actions against the king's messengers for trespass and imprisonment, under general warrants of the secretary of state, in which, ihe planitifC's counsel having asserted, and tlie defendant's counsel having denied, the right to recover "exemplary damages," the chief justice instructed the jury as follows: "I have formerly delivered It as my opinion on another occasion, and I still continue of the same mlud, that a jury have it in their power to give damages for more than the injury received. Damages are designed, not only as a satisfaction to the injured person, but likewise as a pmiisliment to the guilty, to deter from any such proceeding for the fu- 1ure, ai'd as a proof of the detestation of the jury to the action itself." Wilkes v. Wood, Lofft, 1, 18, 19, 19 Howell, St. T. 1153, 1167, See, also, Huckle v. Money, 2 Wils. 205, 207; Sayer, Dam. 218. 221. The recovery of dam- ages, beyond compensation for the injury re- ceived, by way of punishing the guilty, and as an examnle to deter others from offending in like manner, is here clearly recognized. lu this court the doctrine is well settled that in actions of tort the jury, in addition to tlie sum awarded by way of compensation for the plaintiff's injury, may award exem- plary, punitive, or vindictive damages, some- ti!ues called "smart money," if the defend- ant has acted wantonly, or oppressively, or with such malice as implies a spirit of mis- chief or criminal indifference to civil obliga- tions; but such guilty intention on the part of the defendant is required in order to charge him with exemplaiy or punitive dam- ages. The Amiable Nancy, 3 Wheat. 546, ri58, 559; Day v. Woodworth, 13 How. 363, .'571; Railroad Co. v. Quigley, 21 How. 202, 213, 214; Railway Co. v. Arms, 91 U. S. 489, 493, 495; Railway Co. v. Humes, 115 U. S. 512, 521, 6 Sup. Ct. Rep. 110; Barry v. Bd- mmids, 116 U. S. 550, 502, 503, 6 Sup. Ct. Rep. 501; Railway Co. v. Harris, 122 U. S. 597, 609. 610, 7 Sup. Ct. Rep. 12S6; Railway Co. V. Beckwith, 129 U. S. 26, 36, 9 Sup. Ct. Rep. 207. Exemplary or punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has partici- pated in the offense. A principal, therefore, though of course liable to make compen- s.ation for injuries done by his agent within the scope ef his employment, cannot be held liable for exemplary or punitive damages, Hierely by reason of wanton, oppressive, oi: m_alicious intent on the part of the agent. This is clearly shown by the judgment of this court in the case of The Amiable Nancy, S Wheat. 546. In th.-it case, upon a libel in admiralty by the owner, master, supsrcargo, and crew of a neutral vessel ag.iinst the owners of an Amoricau privateer, for illegally and wanton- ly seizing and plundering the neutral vessel and maltreating her officers and crew, Mr. Justice Story, speaking for the court, in 1818, laid down the general rule as to the liability for exnmplaiy or vindictive damages by way of punishment, as follows: "Upon the facts disclosed in the evidence, this must be pro- nounced a case of gross and wanton outrage, without any just provocation or excuse. Un- der, such circumstances, the honor of the country and the duty of the court equally require that a just compensation should be made to the unoffending neutrals for all the injuries and losses actually sustained by 244 CAlU-ilEHS OF PASSENGEHS. them; and, if this were a suit against the original wrongdoers, it might be proper to go yet farther, and visit upon them, in the shape of "exemplary damages, the proper pun- ishment wtuch belongs to such lawless mis- conduct. But it is to be considered that this is a suit against the owners of the privateer, upon whom the law has, from motives of pol- icy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to them- selves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of the opinion that they are bound to repair all the real injuries and personal wrongs sustained by the libelants, but they are not bound to the extent of vindictive damages." 3 Wheat. 558, 559. The rule thus laid down is not peculiar to courts of admiralty; for, as stated by the same eminent judge two years later, those courts proceed, in cases of tort, upon the same principles as courts of comn:on law, in allowing exemplary damages, as well as dam- ages l>y way of compensation or remunera- tion for expenses incurred, or injuries or loss- es sustained, by the misconduct of the other party. Manufacturing Co. v. Fiske, 2 Mason, 119, 121.1 III Keeue v. lizardi, S La. 120, 33, Judge Martin said: "It is true, juries some-, times vei-y properly give what is called 'smart money.' They are often warranted in giving vindictive damages as a punishment inflicted for outrageous conduct; but this is only jus- ■tifiable in an action against tlie wrongdoer, und not against persons who, on account of their riilation to the offender, are only conse- quentially liable for Ms acts, as the pvinci- I)al is responsible for the acts of his factor or :agent." To the same effect are The State Jlights, Crabbe, 42. 47, 48; The Golden Gate, McAll. 104; Wardrobe v. Stage Co., 7 Cal. 118; Boulard v. Calhoun, 13 La. Ann. 445; Detroit Daily Post Co. v. McArthur, 16 Mich. 447; Grund v. Van Vleok, 09 111. 47S, 481; Beck- er V. Dupree, 75 111. 107; Rosenkrans v. Bar- ker, 115 111. 331, 3 N. E. Rei). 93; Kirksey v. Jones, 7 Ala. 022, 029; I'ollock v. Gmes in later, and for the purpose of rebutting the presumption of negligence; but, if it cannot be shown, the presumption remains, and precludes recovery, if the negligence was contribu- tory. In Treat v. Railroad Corp., 131 Mass. 371, the plaintiff, on the whole case, did not appear to be one who at his own risk had voluntarily assumed an exposed posi- tion not intended for passengers, and therefore the question of contributory negligence was properly left to the jury. Zemp V. Railroad Co., 9 Rich. Law, 84, re- ferred to by plaintiff, is not authority for him. There the plaintiff was standing on the front platform of the rear passenger- car at the time of the injury, which was occasioned b.y the overturning of the en- gine when the train was moving from five to eight miles an hour. The whole case depended upon whether the injury was attriluitahle to plaintiff's want of care. The court said that plaintiff's position at the moment of the accident was wroi\g. but that the proximate cause of the injury waB the overturning of the engine; that plaintiff's being on the plat- form did not necessarily subject him to in- jur.v in an overturn, any more than if he had been in the cur; but that if he had fallen off the platform when the train was in motion, then he would have been obliged to bear his injury, for then hi& own act would have been as much the proximate cause as the defendant's legli- gence. Railroad Co. v. Hoosey, 99 Pa. St. CARRIERS OF PASSENGERS. 253 492, is mncli in point. Tliere the plaintiff below was a passenger on an excursion train of many cars, -wliich were over- crowded, and tile plaintiff and many oth- ers were unable to find seats. After searching for a seat, and lindins none, plaintiff took a position quite near the edge of the rear platform of one of the cars, and stood with his back to the end window of the car, and rode there, the cars heing in rapid motion, till he was jolted off and injured. Thefourt said that he was not only in a position of known danger, but was there voluntarily, and against the rules of the company; that havingshown, by his own testimony, that at the critical juncture he was in a position where no one of ordinary prudence should have placed himself, it was incumbent on him to show that he was therefrom neces- sity, and not from choice; that the dan- gerous position on tlie ijlatform in which he voluntarily placed himself while the cars were in rapid motion was undoubt- edly ihe immediate cause ttf his being jolt- ed off; that if there had been any testi- mony from which it could have been rea- son-ably inferred that he was there from ■necessity, and not from choice, it would have been a question for the jury; but that, in the absence of such evidence, it was error to leave it to the jury to deter- mine whether he was or was not guilty of ccmtributory negligence. The plaintiff was the only person on the train who was injured, and the court said that he ought to have submitted to the incon- venience of standing in the cars. Thus it is seen that, on the authorities, it is clear- ly maintainable tnat riding on the plat- form of steam-cars, in the cii-cumstances disclosed in the case in hand, is prima facie negligence as matter of law. The plaintiff was the only person on the train who was injured; and that the position in which he was riding materially con- tributed to his injury is not, and cannot be, questioned. It remains to consider whether the testi- mony tended to show that the plaintiff was riding on the platform or the step, whichever it was, for a reasim that freed hira from the imputation of negligence. His claim was, as shown by the charge and his testimony, that the passage where he stood aitir giving up his seat was crowded; that most of those in his vicinity were ladies; that the swaying and the jolting of the cars were such that his position was one of discomfort to him- self, and of evident discomfort and an- noyance to others; and that in conse- quence of this he concluded to go to the smoking-car. He testified that, after tak- ing his position on the platform or the step, he thought be would stay there a few minutes, and then go back into the. car he had left. Thus it appears that the plaintiff had standing-room in the car, which he might have continued to occupy, but whicli he chose to leave in order to free himself from discomfort, and others from discomfort and annoyance; and that he remained on the platform or the step in order to obtain temporary relief from that discomfort, intending in a short time to resume his former position in the car, wliich he might have done. But pas- sengers, especially on excursion trains, must expect more or less discomfort, and must endure it, rather than assume posi- tions of danger and hazard, not provided for their occupancy, for the purpose of avoiding it. Necessity alone can warrant the assumption of such positions. If they are assumed as matter of choice, and they contribute to injury, thei-e can be no recovery. But what would constitute necessity in such cases is not easy to say. It may, perhaps, be safely said, in a case like this, when nothin-g is said or done by those in charge of the train to control or influence the conduct of the passenger, that the attendant circumstances must be such as not to leave the passenger free to choose; such as to coerce his action, and to compel him to assume the position as tlie best he could do at the time, acting as a careful and prudent man. The testi- mony in this case did not tend to show any such coercion of circumstances, — any such compulsion ; and therefore the case is that the plaintiff was riding as matter of choice, and not of necessity, in a dan- gerous place, not provided for the occu- pancy of passengers, which contributed to his injury; hence the court should have directed a verdict against him. The record discloses another error. The court submitted to the jury, as one element bearing on the question of de- fendant's negligence in operating the train, the fact that there were but two brakemen upon it, although there was nothii>g tending to show tiiat the train was in any respect irafiroperly operated for lack of brakemen. It is a familiar rule that it is not proper to submit to the jury an issue that the testimony does not raise. There are no other points of exception that we deem it important to consider. The case will be remanded, as the issues joined to tlie jury stand undisposed of on therecord, and upon thein the plaintiff has a right, and may desire, to Introduce ad- ditional evidonce, and we cannot say that no such evidence exists. Judgment re- versed, and cause remanded. START and THOMPSON, JJ., did not sit, having been of counsel. Approved in Goodwin v. Boston & Maine R. R., 84 Me. 203, 24 Atl. 816. 254 CARRIE KS OF PASSENGERS. Boarding moving; train at invitation of HUNTER et al. v. COOPERSTOWN & SUS- QUEHANNA VALLEY R. R. CO. (112 N. -Y. 371, 19 N. E. 280.) Court of Appeals of New York. Feb. 8, 1889. Appeal from supreme court, general term, Fourth department. Action by Delora M. Hunter and another, as administrators, etc., against the Coopers- town & Susquehanna Valley Railroad Com- pany, for damages for the death of plain- tiffs' decedent. Judgment for plaintiffs was reversed by tlie general term, and a second judgment for plaintiffs was affirmed, and de- fendant appeals. B. M. Harris, for appellant. James A. Lynes, for respondents. PECKHAM, J. Accepting the facts as tes- tified to on the part of the plaintiff in this action, it appears that on the 25th day of September, 1884, the plaintiffs' decedent came to the station of the defendant called "Phoenix Mills," in the early morning, for the purpose of taking a train to the neighboring village of Oneonta. There was a platform in front of the station, the northern end of which was used for fi-eight, and was two or three feet higher than the southern end, which was used more especially for passen- gers. The passenger portion of the platform was only about one foot above the gr'ound, and communication between the upper and lower platforms was had by steps leading from one to the other. The top of the freight platform was four and one-half feet higher than the rails of the defendant's road. At the north end of the freight platform the dis- tance between it and a car, as it would pass along the track, would be six inches. At the center of the freight platform it would be four inches, and the same distance at the south end. The plaintiffs' decedent, upon hearing the whistle of a train approaching from the north on its way towards Oneonta, got up and stood on the passenger portion of the platform, awaiting its arrival; and, when it had got within a short distance of the sta- tion, the conductor came out onto the plat- form of the rear passenger car, and asked plaintiffs' decedent if he was going, and added: "If you are, jump on." There were but two witnesses sworn on the part of the plaintiff in regard to the rate at which the train was moving when this direction was given by the conductor. One of them says the train was moving at that time six or eight miles an hour; the other, who was the engineer of the train, stated that it was going from four to six miles an hour. When the conductor directed the de- ceased to jump on, he was standing on the passenger platform three or four feet north of the steps connecting with the freight plat- form, and he started to jump on the front platform of the passenger car while it was thus in motion. He was caught in some conductor. Question of law. Nonsuit. shape, as the witnesses say, without being able to describe exactly how, and rolled along the station platform with his head and shoulders above it. His body was caught about the hips. The train was stopped, and he was taken out, and died within a short time. From this evidence it is quite plain that the train was in comparatively rapid motion at the time when the deceased made his at- tempt to board it. I say comparatively rapid motion, meaning by that a motion that was rapid, when taking into consideration that a man was attempting to board it. TTiere can be no doubt from this evidence that the train was moving at least six miles an hour. The engineer fixes it from four to six ; and being a witness for the plaintiff, and not in the defendant's employ at the time he was sworn, it may be assumed that he did not put the speed any greater than in fact it was. The deceased was a man in the full vigor of life, presumably of ordinal? judgment, at least up to the average of mankind, and he was at a familiar station, and about to take a ti-ain to go to a neighboring village a few miles distant. It was the duty of the rail- road company (having advertised so to do) to stop its trains at the station in question, and to give ample time to all persons de- sirous of getting on or leaving trains at that station to do so The important question which arises is, does a man who is sul juris, and in the full possession of his faculties, with nothing to disturb his judgment, act with ordinary care in endeavoring to board a train moving at the rate of six miles an hour? It seems to me there can be but one answer to such a question. That it is a dangerous — a most hazardous — attempt must be the common judgment of all men. Persons are taught from their earliest youth the great danger attending upon an attempt to board or leave a train while it is in motion, and no person of mature years and judgment but has the knowledge that such an attempt is danger- ous in the highest degree. It is substantially admitted in this case that it would have been negligence on the part of the deceased to have made the attempt, had it not been for the request or what is termed the direc- tion of the conductor to him to get on. It may be assumed that this direction implied a notice to the deceased that the train would not stop at that station, and that unless he attempted to get on while the car was thus in motion he would be left at the station, and compelled to take another and a later train. It may be assumed that in giving this direction, and in failing to stop the train, the company was chargeable with negligence, and yet it counts for nothing as a justifica- tion or excuse for the conduct of the deceas- ed in attempting to board a train while thus in motion. There may undoubtedly be circumstances CABRIEUS OP PASSENGERS. 255 under which an attempt to get on or off a moving train would not be regarded as neg- ligence, as matter of law, and where the question of negligence, under all the circum- stances of the case, should be submitted to the jury. One such case was that of Filer V. Railroad Co., 49 N. Y. 47. There the plaintifC received the injuries complained of in attempting to get off the cars while they were in motion, making very slow progress. The plaintiff, who was a woman, was di- rected by the brakeman on the car to get off, and there was evidence upon which the jury might have found that she was told by him that they would not stop or move more slow- ly to enable her to do so. The name of the station had been called, and the speed of the train had been greatly reduced, so much so that baggage had been taken from the baggage car, and removed by the porter, and one man, who was supposed to be a little lame, had gotten off safely. Allen, J., in de- livering the opinion of this court, said: "She was put to her choice without any fault of hers whether to obey the advice and sug- gestion of the defendant's servant, and fol- low the example of the man who had pre- ceded her, or to remain on the cars, and be carried beyond the place of her destination, and away from her friends; and It was a proper question for the jury whether this was or was not, under the circumstances, an act of ordinary care and prudence." The learned judge, continuing, said: "Had the cars been going at a rapid rate, the plaintiff must have known that she would be injured in leaping from them; and the attempt to leave the cars under such circumstances, even at the instance of a railway servant, would have been a wanton and reckless act, and no recovery could be had against the defendant." In Morrison v. Railway Co., 56 N. Y. 302, it was held that the question whether a per- son has been guilty of contributory negli- gence In attempting to alight from a car while it is in motion is not in every case a question of fact for a jury; that, when the facts are undisputed, the question of contributory negligence may become one of law. In that case the plaintiff, auing by guardian, was about 12 years of age, and the train when it approached the station slowed up. It had passed the platform, aud while still in motion the plaintiff's father took her under his arm, and stepped from the car, and fell, and she was injured. Folger, J., delivering the opinion of the court said: "Can it be said that a person of ordinary prudence and care would have swung himself from a car in motion down to the ground in the dark, laden with the weight of a child 12 years old, having but one hand and one arm to aid himself witli, when there was no other danger to be avoid- ed by meeting this, and no incentive to the act other than the inconvenience of being carried by his place of abode, and with a full apprehension of the danger he was about to run? I think not, aud 1 am of the opinion that it is so clear that the law and the court should have given the answer without calling in the aid of a jury." See, also, Phillips v. Railroad Co., 49 N. Y. 177; Soloman v. Railroad Co., 103 N. Y. 437, 9 N. E. 430. In the last cited case Andrews, J, says: "Negligence, no doubt, is usually a question of fact of which the jury must inquii'e; but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is prima facie dangerous to alight from a moving train is founded on our gen- eral knowledge and common experience, and it is akin to the conclusion now generally accepted that i^ is in law a dangerous, and therefore a negligent, act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In boarding a moving train there is generally less ex- cuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently hap- pens in the former case. He may be com- pelled to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard. * * * If men will take hazards, they must bear the consequences of their own rashness, and it is no just reason for visiting the conse- quences upon another that his negligence co- opei-ated in producing the result." We think that the facts in this case are wo overwhelming in their nature that no reason- able judgment can be formed as to the act of the deceased in attempting to jump upon this moving train other than that it was dangerous and reckless, and that the injury resulting therefrom was contributed to by him. We do not regard it as of the slightest importance, under the circumstances of this case, that the conductor of the train notified the deceased to jump on That notification certainly cannot be interpreted to mean more than that the train would not stop or go slower than it was then going, and that if the deceased wanted to take it he must jump on at that moment. That does not alter the highly dangerous nature of the act itself. The deceased was in absolute safety at the time the direction was given. It created no emergency which called for the exercise of immediate judgment in the choice between the two dangers. It was a simple question of possible inconvenience of taking a later train, or reaching his des- tination by some other conveyance, aud it afforded not the slightest justification or ex- cuse for attempting to board a train moving at that rate of speed, and when he did it ne did it at his own risk. We think the plain- tiff', upon this state of facts, should have been nonsuited. For these reasons the judgments of tiie 256 CAEE1EE3 OF PASSTTSTGEBii courts below sliould be reversed, and a new trial granted, costs to abide the event. All concur, except DANFORTH, J., who 4'eads for affirmance. DAXPORTH, J. (dissenting.) It is not sug- gested by the appellant that there was any misdirection by the trial judge, nor but that the defendants were guilty of negligence in not stopping their train. The appeal rests upon the single proposition that the attempt ■of the plaintiffs' intestate to get upon the moving train was an act of negligence con- tributing to his injury, and therefore suf- ficient as matter of law to defeat a recovery. On the contrary, it seems to me that it was merely one act among others in the case, and to be considered with all the attendant circumstances. It may derive its explana- tion from the conduct of the defendants, and it was therefore for the jury to say how far the decedent was influenced by them up- on the occasion of the accident. Bucher v. Railroad, 98 N. Y. 128; Filer v. Same, 49 N. Y. 47; Glushing v. Sharp, 96 N. Y. 676. And if they found that the conditions which led him into danger were of the defendants' own .creation, both common sense and justice for- bid that they should be allowed to withhold compensation. If, on the other hand, the ■danger, notwithstanding the solicitation of the conductor, was so manifest that in the exercise of ordinary pnidence the intestate should have observed it, or if observing it he went recklessly to the car, he should suf- fer the consequences of an injury brought on by himself. Many circumstances are to be taken into account in answering these questions, and if inferences are to be drawn, not all one way, then no tribunal save a jury is authorized to pass upon them. The appellant relies upon the single fact that the train was in motion. That, as ap- pears from the cases referred to, is not enough to exonerate the defendants. Those -decisions show that an intending passenger may attempt to board a moving train, and if injured in doing so may stlU recover; that is, the act is not negligent of itself. The speed of the train is in all cases to be con- sidered, but this in connection with the con- duct of the train servants, and the age and activity of the traveler, before his action up- on the occasion in question can be charac- terized. Eppendorf v. Railroad, 69 N. Y. l!)."i; Filer v. Same, supi-a; Burrows v. Brie Co., ■63 N. Y. 556; Hickey v. Railroad, 14 Allen, 429. It is of tlie greatest Importance, therefore, to ascertain the speed of the train. What was it? No exact testimony was given. But the train left Cooperstown at the usual time. The run to Phcenix was two and one-half or three miles only, and at Cooperstown the en- ;gineer shut off steam, and the train ran north to Phcenix, a distance of only two and -one-half or three mllea, without ateam. It was a regular passenger station, where all trains were advertised to stop. The con- ductor intended to stop at that station, and was trying to do so. At about 80 rods dis- tant the whistle was blown for the station, and the brakes applied continually Until the train in fact came to a standstill, a short distance beyond the platform, 20 or 30 feet, or, as one witness says, 50 feet, and would have stopped sooner, or at the station, except that there was only one brakeman, and his brakes were defective. All that time the conductor stood upon the platform. In that position, and while eight or ten rods distant, he leaned out by the side of the car looking forward, and saw Hunter upon the station platform, facing the Incoming train, and evi- dently waiting for it. When within eight or ten feet the conductor said to him: "Ave you going? If you are, jump on." He reached out his hand and foot, tried to get on the car, and in some way was canght and killed. These are circumstances about which there is no doubt,— the engine moving with- out steam; the conductor intending to stop at the station; the whistle blown for the station as notice of that intention; the brakes applied; the train actually slowing up; and the conductor, expecting a passen- ger, calling him to get on. The eftort was made to do so, and, it failing, the train was actually stopped within a few feet from the place where the accident occurred. Do not these circumstances all tend to show, and permit the inference, that the train was mov- ing very slowly? There was the intention to stop; the conductor's expectation to take his passenger; and the actual stoppage of the train when the accident occurred. But the opinions of witnesses are referred to as showing the contrary. In view of the cir- cumstances I have exhibited, those opinions may be taken with many grains of allow- ance. One witness says: "I should think the train was going about six or eight miles an hour." He was a by-stander. His at- tention was not called to the speed of the train at the time in question; but he was the plaintiff's witness, and his evidence is in the case for what it is worth. What is it worth? About six or about eight,— at once a difference of two miles. The engineer says: "At the time the train passed the station, I should say it was going from four to six miles an hour." Wicks, the fireman, testi- fies: "I would say from four to six miles an hour, slacking all the while." The phrase used by all the witnesses in expressing an opinion is in the highest degree indefinite, and their testimony must be weighed in view of the circumstances to which I -have al- luded. The rate of speed was to be deter- mined as a fact. No witness spoke from ac- curate information, but gave his opinion merely, the conductor not testifying to it. Observers are comi«tent witnesses, but few are able to say with even tolerable aecuracy the rate of speed at which a train at any CARRIERS OF PASSENGERS. 257 given moment is moving. In tliis case their attention was not directed to it, and the weight of their testimony was to be deter- mined. The court cannot say from it that the train was as a fact moving at a given rate. A jury might say the speed was less than four miles an hour, — as much less as the circumstances alluded to might indicate to them, and not necessarily faster than one might walk. The deceased was a young man, so far as appeai-s, with the active habits of that age. He stood upon the platform of the station, mentally prepared to take the train, with every reason to expect that it would stop as usual. It cannot be said as matter of law that a man of ordinary prud-ence would not have yielded to the direction of the conductor, nor can it be said that to him, in view of the circumstances, the train was moving at a palpably dangerous rate. He did not attempt to board the train by reason of his own impatience, but upon the invitation of the defendants' servant. It is to be considered whether this direction of the conductor was not only a practical expres- BA1,DW.SEL.CAS.B.E. — 17 sion of his belief that the step might be taken in safety, but also as a strong expres- sion of his opinion that the movement of the train was slow and witliin the bounds of safety. All these things might properly lead a jury to the reasonable belief that to the decedent the train did appear to be moving slowly, and, moreover, that it was in fact brought to such a point as only prevented complete inertness or stopj/age, — a rvesource of engineers to avoid the necessity of over- coming the vis inertia of a heavy train at rest. At any rate, the defendant ought not to be permitted to assert that the intestate did not exercise what now it seems would have been better judgment in the condition in which he was placed by their acts. That he did not act pi-udently should not be ad- judged as matter of law, nor to what extent his action was governed by what he might reasonably infer from that of the conductor. The questions were for the jury, and were properly submitted to them. I think the judgment which followed their verdict should be affirmed. 258 OAERIERS OF PASSENGERS. Taking a limited train by mistake. Noti ger from train at a dangerous place, train. Punitive damages. LAKE SHORE & MICHIGAN SOUTHERN RY. CO. V. ROSENZWEIG. (113 Pa. St. 519, 6 Atl. 54.5.) Supreme Court of Pennsylvania. Oct. 4, 1886. Error to common pleas, Erie county. Case by Louis Rosenzweig against the Lake Shore & Michigan Southern Railway Compa- ny. The facts are fully stated in the opin- ion of the supreme court. Verdict and judg- ment for plaintiff, for $48,750, whereupon de- fendant took this writ. Rasselas Brown, John P. Vincent, C. D. Roys, and S. M. Brainard, for plaintiff in er- ror. J. Ross Thompson, Geo. A. Allen, and S. A. Davenport, for defendant in error. TRUNKEY, J. On the twenty-fifth of No- vember, 1883, the plaintiff pm'Chased a ticket at defendant's station, in Erie, good only for 30 days, for one continiious passage each way from Erie to Cleveland and return. The next morning, between 1 and 2 o'clock, when he was about to take the limited express train to return to Erie, an employs of the defend- ant directed him to the day-coach. He step- ped in, sat dovn, and quickly curled up and went to sleep. After the train had started, he was awakened by the conductor's call for tickets, and instantly took from his pocket the ticket and a roll of money. The con- ductor reached for the ticket, immediately said, "My orders are to put you off," gi'abbed the bell-cord, pushed the ticket back, and said, "Your ticket is no good." Then the plaintiff vainly endeavored to show the con- ductor that be was mistaken, offered money in payment of the fare, which was refused, and begged not to be put off at that place, but to be carried to the next station. The conductor answered: "My orders are to put you off, and off you must get. I obey orders if I break owners. Come." Thereupon the plaintiff followed the conductor out of the car, and on reaching the ground the con- ductor pointed tc a light, and said, "That will take you to the depot." The plaintiff started towards that light; soon saw it was on a locomotive which ran by him. He then tried to get off the tracks; came against what he supposed was a freight train, which he believed was just in motion; turned to pass round the train, and in doing so passed another train back of it; then believed it was safer to go northward, and as he started he noticed a light to his left, a train of cars backing, and a single car moving; about same time another engine passed him; and when he had crossed some tracks he was struck in the rear, and fell unconscious. The condition on the face of the ticket, that it was good only for 30 days, was the only one of which the plaintiff had knowledge. He be- lieved it was good on every train, bad used that kind of tickets on the defendant's road ce of company's rules. Ejecting passen- Remote cause of injury. Trespasser upon for five or six years, never knew there was any discrimination in its use between trains, and had traveled on the limited express from Cleveland to Erie on such a ticket in March or April preceding the date of the injury. When he purchased this ticket, and attempted to use it, he did not know there was any dif- ference, as to right to use it, between the limited express and other trains. Neither ticket agent nor anybody else informed him that it was not good on the limited express. Among the facts in this case the foregoing are testified to by the plaintiff; and however much, in some particulars, his testimony may conflict with opposing testimony, and how- ever strange it may appear that the plaintiff knew nothing of the regulations respecting the limited express trains, his credibility and the truth of his statements were for determina- tion by the jury. All facts which the jury were warranted in finding must be kept in view in considering the alleged errors in the rulings of the learned judge of the common pleas. If believed, the testimony of the plain- tiff shows that he entered the day-coach of the limited express in good faith, by direction and apparent assent of the defendant's em- ployes, without notice ov actual knowledge that his ticket was not good on that train until so informed by the conductor, and that he was put off the train, in the midst of railway tracks on which were moving and standing cars and locomotives, as soon as the conductor could stop after seeing the ticket. The plaintiff's ticket was evidence of the payment of his fare, and of his right to be carried according to its terms. It did not express the whole contract. What it does set forth may be ascertained from the reasonable rules and regulations of the defendant; and the holder of the ticket is bound to inform himself of such regulations respecting the conduct of trains and the rights of passen- gers. Dietrich v. Railroad Co., 71 Pa. St. 432. The jury were instructed that the rules adopted by the defendant limiting the pas- sengers on the limited express to such as purchased special tickets were reasonable; that it was the plaintiff's duty to ascertain whether his ticket entitled him to a passage on that train before going upon it; and, if he went on without a proper ticket, the com- pany had the right to eject him at a safe, place, using no more force than necessary. This was substantially repeated in response to the defendant's first, second, and seventh points, with addition that it was not incum- bent on the defendant to bring home to the plaintiff a knowledge of its rules and regula- tions. But the court refused to charge that the law presumes that the plaintiff did know the regulations, and therefore the conductor, if he saw fit, had the right to eject the plain- tiff at an improper and unsafe place. Wheth- CARRIERS or PASSENGERS. 259 er there is a legal presumption of such knowl- edge is the chief question raised by the as- signnent of error. At the outset the defendant supports the proposition that the law presumes that the plaintiff knew of the regulations by a most specious and ingenious argument. It is clear that an irrebuttable presumption is meant. The result of affirmance of the proposition is indicated in the brief thus: "The law made it the duty of the plaintiff to ascertain, before taking a seat in the car, whether his ticket entitled him to ride on that particular train. * * * But whether, as a matter of fact, he knew this, cuts no figure in this case. In legal contemplation he did know it. The law made it his duty to know it; and, being a duty which the law imposed, there is a conclusive legal presumption that he did know it." The only case cited in suport of such doc- trine is Horan v. Ellis, 41 Pa. St. 470, where the rule was recognized that a breach of the laws of the state is not to be presumed against any one, and the presumption is the contrary until proof overcomes it. That case gives no sanction to the proposition claimed. And the proposition is at variance with the decision in Railroad Co. v. Greenwood, 79 Pa. St. 373. There a rule was adopted and pub- lished that after February 1, 1873, passengers would not be carried on freight trains, except way-freight, Ejid not on way-freight trains unless they had tickets. Mrs. Greenwood got on the train without a ticket; offered to pay the fare to the conductor. He refused to re- ceive it, and put her off about a mile from a station. She had been accustomed to ride on that train, and to pay her fare to the conductor. She had no actual knowledge of the rule. Held, that the rule was reasona- ble; but, the plaintiff having ridden in the car before, and after the making of the rule, without a ticket and without objection, the company should not turn her out at a dis- tance from the station without proof of ex- press notice or actual knowledge of the rule forbidding any one to enter the car without a ticket. Under the circumstances, putting up notice at the station-house was not suffi- cient. The question of legal presumption of knowledge by the plaintiff of the rule was not raised and probably was not then con- ceived. "Ignorance of the law, which every one is bound to know, excuseth no one." Every per- son in a country must be conclusively pre- sumed to know its laws sufficiently to be able to regulate his conduct by them; for this is indispensably necessary in order to prevent greater evils. Knowledge of the laws of the state is in all cases presumed, though in no case it perfectly exists, and in multitudes of cases does not exist at aU in the concrete. To a presumption of law probability is not necessary; but probability is necessary to a presumption of fact. Whart. Ev. par. 1237. But this legal presumption of knowledge has never been extended to the by-laws and reg- ulations of private corporations. No necessi- ty has been shown for judicial enunciation that there is a legal presumption, or a fiction of law, that a person abuut to become a pas- senger, or who has become a passenger, on a railway, knows the rules and regulations of the railway company. A contract was made between the parties when the plaintiff purchased the ticket. Al- though he neglected to inform himself of all its terms, he was bound by them unless waiv- ed by the defendant. He cannot set up igno- rance of them in order to establish rights not therein stipulated and implied. If he could, the defendant had no right at all to eject him from the train. Hence, in a proper sense, he was bound to ascertain and know the regulations of the defendant entering in- to the contract, and he had no greater rights thereunder than if he had acquired actual knowledge of its terms. As his contract gave him no right to ride on the limited express, the company could lawfully eject him. But, under the facts which the juiy were war- i-anted in finding, the defendant was bound to treat the plaintiff as a passenger who by mistake had got on a train not included in the contract. He was entitled to the rights and privileges of a passenger except as to limited express trains. He promptly exhibit- ed his ticket, the evidence of his contract, to the conductor. As a passenger, he was right- fully at the station waiting for a train to take him to the place named in the ticket, and entered the car designated to him by an official as the coach for the passengers to Erie. There was neither gate nor closed door nor employg to warn him that his ticket was not good on that train. The plaintiff was at the station, a passenger. His enter- ing the car was not like the case of a man entering the dwelling-house of another un- bidden. One IS a public conveyance; the other is private, and the occupant's home. A passenger who enters a car by mistake is not a trespasser who may be sued as such when he commits no actual injury. He has rights other than those of a trespasser. He may so conduct himself as to become a tres- passer after being informed of his mistake. The defendant is a carrier, and its cars are for the accommodation of travelers. It owes a duty to every passenger who, in good faith, purchases a ticket and enters any of its con- veyances. If the conveyance is not going in the direction the passenger wants to go, or is one which, by the contract, the pas- senger has no right to take, its duty is to inform the passenger, and put him off at a proper ijlace. This principle was recognized in Railroad Co. V. Scbwindling, 101 Pa. St. 258. In that case the plaintiff was a child, went on the platform of the station, and was Injured; but was not there as a passenger, and had no business of any kind with the defendant, or any of its agents or employes. The defend- 260 CARHIERS OF PASSENGERS. ant was not liable, because it owed no duty to the plaintiff. In the opinion it is remark- ed as conceded that when a person goes on the platform at a railway station as a pas- senger, or on businoss connected with the company, that the company owes him a du- ty; and, if he be injured by the negligent act of the company, he may recover damages. There is no evidence of collusion or con- spiracy between the plaintiff and any of the defendant's servants to the end that he might wrongfully ride on the limited ex- press. As regards the plaintiff, the acts of the persons in charge of the train were the acts of the defendant. As respects his rights, it is immaterial whether the servants of the defendant violated its rules by omit- ting to lock the doors of the car, or to give him notice that he had no right to enter and take a seat. The doors were not locked, and the plaintiff was not notified, and it was submitted to the jury to find whether he entered with consent or acquiescence of the • employfis of the defendant. A passen- ger who has an open way to an open car going to the place to which he bought and holds a ticket, without knowledge that the ticket is not good on such a car, is not to be treated as a wrong-doer, endeavoring to ride without payment of fare, or to ride on a car which he knows his ticket gives no right to enter. If the plaintiff knew that his ticket was not good on that car, and that he had no right to enter without a special ticket, he was a trespasser; other- wise he was not; and the determination of this was fairly submitted to the jury. For the reasons stated, ;the third, fourth, fifth, seventh, and eighth specifications of error are not sustained. Nor need much be added with reference to the first specification. The plaintiff's first point was not affirmed as an entirety; but, instead, the court gave full instruction on the matters suggested in the point. What the court said in the answer was the in- struction, and was free of error. That in- struction did not submit whether the de- fendant considered the place dangerous where the plaintiff was put off, but did sub- mit whether he was ejected at a dangerous place. If it be true that the plaintiff was ejected a little west of the bridge, the con- ductor pointing to a light, remarking that would take him to the depot, it is by no means singular that the plaintiff did not see the bridge, or that the jury fomid that amid the numerous railway tracks and moving cars and locomotives, in the night-time, it was a dangerous place for a stranger. And, if he was ejected east of the bridge, there Is testimony that it was amidst railway tracks, moving trains, and locomotives, and of the efforts of the plaintiff to reach a place of safety. All the defendant's points from the ninth to the seventeenth, except the sixteenth, both inclusive, were affirmed. These need not be repeated. The jury in that way were iMly Instructed respecting the requisite care and duty of the plaintiff after he was eject- ed, and that any negligence on his part in looking out for his safety would defeat his claim for damages. They are referred to as aiding to understand the instructions of which complaint is made. For instance, the fourteenth point sharply defines the duty of the plaintiff' with respect to the safe ways at the bridge, and instructed the jury that if he neglected his duty he could not re- cover. But in the sixteenth point the court is asked to determine the fact of neglect, and direct a verdict for defendant. The fourteenth point was pertinent with refer- ence to the testimony. The plaintiff, since he was hurt, has learned the location of the bridge, and he thinks he was put off the car east of It. He has no recollection of passing under it, did not look for it, could have seen it had he looked for it, did not then know a bridge was there, and there was nothing to call his attention to a bridge. To have affirmed the defendant's sixteenth point would have been palpable error. The defendant's eighteenth, nineteenth, and twentieth points were rightly refused, with proper instructions on the subject sug- gested. If he was knocked down by a blow in his rear, which rendered him un- conscious, it does not follow that because he cannot teH what struck him, that the jury may not find the fact that his injury was the direct consequence of a particular act. It was unnecessary to find whether he was struck by a locomotive or a car, but it was essential that the jury should find that his injuries were the natural and probable consequence of the act of the conductor, — such a consequence as, under the surround- ing circumstances of the case, might and should have been foreseen by the conductor as likely to flow from his act. It is said that these points were intended to squarely present the question of remote and probable cause. If the plaintiff was put off at a safe place, and he wandered to a dangerous one, the cause was remote. So would it be had he remained in the place of safety, and some agency had brought his hurt. Was the place dangerous, not alone because of the railway tracks and switches, but of their use by trains, cars, locomotives, and for the making up of trains? These were the conditions present which made the place dangerous; especially dangerous for a stranger in the night-time. While the plain- tiff was trying to get out of that place, he received the injury. There is as little rea- son for inference that he was hurt by a sand^bag as there would have been had the blow killed him. It is probable that the jury inferred that one of the things which made the place dangerous struck him. There is where the defendant put him, and where he was hurt. The cause and effect were closely connected, and by prudent cir- CARRIERS or PASSENGEKS. 261 cumspection and ordinary thoughtfulness the conductor could have foreseen that the plaintiff's injury was likely to happen. Un- der the facts and circumstances which the jury could properly find, had the court ruled that the defendant was not liable by reason of remoteness ol the cause of injury, it would have been equivalent to saying that it was wholly immaterial whether the plain- tiff was ejected at a safe or a dangerous place, for in either case he could not re- cover. The questions raised by the numerous al- leged errors in the general charge have al- ready been considered, and only two of the specifications, the fifteenth and twenty-sec- ond, will be noted. The fifteenth com- plains of the following sentence: "The plaintiff further claims that the place where he was put off was a dangerous and im- proper place for putting off a passenger, and that his ejection was a wrongful, wanton, and inhuman act on part of the conductor, and wholly unjustified by the circumstan- ces." The defendant characterizes this as un- warranted, unjust, and unfair; that there is no such averment in the declaration, nor was evidence thereof introduced at the trial, and the statement was calculated to poison the minds of the jury. It is true that the phrase "wanton and inhuman" is not in the declaration. But each count avers that, in the night-time, the plaintiff urging, asking, and insisting that he be carried at least to the nearest station and place of safety, the conductor compelled him to get off at a dangerous place: "it being upon and in the midst of many railway tracks, switches, trains, cars, engines, locomotives, and where trains of freight were and are made up, and where trains, cars, engines, and locomotives pass and repass, and at a place strange and unknown to the plaintiff." The plaintiff claimed there was testimony tending to prove that averment; and very likely, oral- ly, at the trial, spoke of the act of ejecting him at such a place as wanton and inhu- man. But whether he did so qualify the act or not, the court merely stated the claim, without alleging or asserting anything, or indicating that it was sustained by proof. With equal fairness the claims of each par- ty were stated. If the averment in the dec- laration be true, was not the act of the con- ductor Inhuman? The twenty-second specification complains of the following: "It was the duty of the conductor to use discrimination, and not to treat, as a mere trespasser and tramp and wrong-doer, a passenger who was merely guilty, at most, of an error of judgment, or neglect to make inquiries he ought legally to have made." That proposition is sound. If the jury found that the plaintiff was a passenger merely guilty of error of judgment, and neglect to make the inquiries he ought to have made, then he was not to be treated as a trespasser and wrong-doer. In exer- cising discrimination the conductor would note his conduct, whether he had or had not a ticket, or whether he was able and willing immediately to pay the fare. If he acted as a trespasser and wrong-doer, and not as a passenger who had made a mis- take, he could not complain of the treatment he thus invited. With the context, it is plain that the juiy could not have under- stood that sentence as an instruction that the plaintiff was a passenger only guilty of error of judgment and neglect. In the sen- tence immediately preceding, the court char- ged that if the plaintiff, knowing that he was not entitled to ride on that train, and in willful violation of the t rules of the com- pany entered the train, he was a mere tres- passer. And the jury were repeatedly told they were to determine every question of fact. There was no error in the refusal of de- fendant's fifth point. The second count al- leges no contract other than is implied by accepting the plaintiff as a passenger, with- out his having a ticket, and charges that his tender of the fare was refused, and that he was wrongfully ejected at a dangerous place. His right to recover, under the pleadings, did not depend on showing a right to ride on the limited express. He was bound to show and did show that he was a passenger; and as such, if, by the omission of the defendant's employes to warn him that he could not rightfully enter that train without a special ticket, he en- tered it by mistake, he was entitled to the treatment due to a passenger, though not entitled to ride on that train. It is clear that the cause was tried on its merits; and, if it be that the declaration does not set forth the case with accuracy, it is amend- able. A mere technical defect that did not and could not mislead, is no ground for re- versal. The twenty-fourth specification is not sus- tained for reasons stated in Lichtenwallner V. Laubach, 105 Pa. St. 366. Were it conceded that it was error to ex- clude the question made the subject of the twenty-fifth specification, there is now no cause for complaint; for, at p, later stage in the trial, the defendant recalled the witness, who corrected the alleged mistake, and was examined and testified fully on the very point to which the overruled question was directed. Manifestly there is no error in the rulings made the subjects of the last two specifica- tions. The remaining specification which will be remarked, alleges error in the qualified af- firmance of the plaintiff's second point: "That if the jury find from the evidence that the servants, of the defendant ejected the plaintiff from their cars, not at a regu- lar station, nor at a dwelling-house, as re- 262 CARRIERS OF PASSENGERS. quired by the i-ules of tlie company, but at a place known to the defendant to be dan- gerous and unsafe, then and in that ease, if they find for the plaintiff, their verdict should be pimitive damages." The jury were instructed that under such circumstances they could find punitive dam- ages or only compensatory damages. In considering other points, reference has been made to the averments and evidence touch- ing the time, place, and circumstances of the plaintiff's ejection. It is uncontrovert- ed that the rules referred to in the point ex- isted, and respecting them the defendant vrell says: "But the rules of the company were not established for the benefit of tres- passers; they were established for the pro- tection of the public, and for the benefit of those with whom they stand in contractual relation." It is unnecessary now to con- sider whether the company may put off a trespasser, to whom it owes no duty, at a place where there is probability that he wiU. be killed. Very little stress need be put on the existence of said rules, reasonable as they are, directing only such treatment as ought to be given to passengers were no such rules expressly adopted. That they are for guidance of the employes in the put- ting off passengers who have no right to ride on the trains which they have entered, is obvious. If they had right on the train, there would be no occasion to put them off. But, in determining whether the conductor acted in reckless disregard of the plaintiff's rights, the jury ought to have kept in view the fact that he violated an express rule calculated to promote the safety of passen- gers, and those having contractual relations with the defendant. This conductor com- mitted no battery. He made no threats. He acted quickly. A glance at the ticket, a pull of the bell-rope, the stopping of .the train, a deaf ear to the plaintiff's entreaties to be carried to a place of safety, a few significant words, and the plaintiff followed him to the ground, there to be pointed to a light towards the depot, but not to a bridge or any safe way out of his peril. If there was no willful misconduct by the conductor, how can it be said that he was not reckless- ly indifferent to the consequences likely to befall the plaintiff ? If the suit were against him, there could be little question that the jury would be permitted to give exemplary damages. The liability of railway and oth- er corporations to exemplary damages for gross negligence is well settled. The gen- eral rule in cases for negligence is that only compensatory damages can be given. Juries are not at liberty to go further than com- pensation, unless the injury was done will- fully or was the result of that reckless in- difference to the rights of others which is equivalent to a violation of them. There must be wiUful misconduct, or that entire want of care which would raise a presump- tion of conscious indifference to consequen- ces. Railway Co. v. Arms, 91 TJ. S. 489. The corporation is liable for exemplary dam- ages for the act of its servant, done with- in the scope of his authority, under circum- stances which would give such right to the plaintiff as against the servant were the suit against him instead of the corporation. Judgment affirmed. CAKBIERS OF PASSENGERS. 263 Duty to passenger, as to providing safe station grounds, less than that as to pro- viding safe cars. MORELAND v. BOSTON & PROVIDENCE R R. CO. (141 Mass. 31, 6 N. E. 225.) Supreme Court of Massachusetts. Suffolk. Jan. 12. 1886. This was an action to recover damages for personal injuries alleged to have been re- ceived by the plaintiff in going from the de- fendant's train, in which she had been a passenger from Boston to Hazelwood, a sta- tion on the defendant's railroad, across the defendant's platform and grounds, appurte- nant to and near the northerly end of said station, open to and used by passengers to pass to and from defendant's cars to Provi- dence street, a highway adjoining said grounds. The facts appear in the opinion. J. E. Cotter, for plaintiff. RusseU & Put- nam, for defendant. ALLEN, J. The plaintiff, while passing from the train, on which she was a passen- ger on the defendant's railroad, to the high- way, over the platform and station grounds, stepped upon some loose shingles which had been left on the ground by the defendant while shingling its station-house, and fell and was hurt. The plaintiff contended, and the defendant denied, tliat the defendant was negligent in permitting the shingles to remain there; and both parties asked in- structions as to the degree of care which the defendant was bound to exercise in the mat- ter. The plaintiff asked instnictions to the effect that the defendant was bound, as a common carrier of passengers, to exercise the utmost care and diligence in providing egress from its premises; that it was liable If the plaintiff' was injured through the ex- istence of an obstruction in the premises which might have been guarded against by the utmost care and foresight on the part of the defendant; and that it was the duty of the defendant to provide for its passengers a reasonable and safe opportunity to pass from its premises, and to take means to prevent any injury to them while so passing which human care and foresight could guard against. The defendant requested instruc- tions to the effect that the duty of the de- fendant was to see that the approaches to the station were reasonably safe and con- venient; that its duty in that resjiect to its passengers did not differ from its duty to other persons than passengers having busi- ness at its stations, or from the duty of other owners of buildings towards persons having business therein. The presiding justice read these requests to the jury, and, in answer to them, gave the instruction that in case the plaintiff has the rights of a passenger, "she is entitled to all the care which human fore- sight can furnish her;" and, at the close of his charge, as a summary and repetition of the law and instructions upon the matters of the prayers, told the jury that if the plain- tiff had been a passenger on the defendant's railroad, and was passing from the train to the highway over the platform and grounds, "the defendant was bound to be in the exer- cise towards her of such care and diligence as could reasonably be exercised to protect her from such injuries as human foresight could anticipate and prevent." Taking the instructions given, in connec- tion with the requests for instructions by the parties, the jury may well have understood that the defendant was bound to take every possible precaution against the plaintiff's in- jury, and was liable if human foresight could have anticipated and prevented it. The for- mer instruction expressly referred to the de- gree of care; the latter, taken by itself, would refer to the object rather than the degree of care, as does so much of it as is taken from Ingalls V. BiUs, 9 Mete. (Mass.) 1. But the context forbids that meaning, and, if taken by the jury as an attempt to define what degree of care was due and reasonable in the matter, it would probably confirm — in no view could it control — ^the former instruc- tion. The former instruction is clearly er- roneous. The latter, if its meaning is that the defendant was bound to use reasonable care to prevent injuries that could be pre- vented, was immaterial, as it gave no rule of reasonable care. If its meaning is that the defendant was bound to use such care as would prevent injuries which could be pre- vented, it was, in substance, the same as the other, and equally erroneous. If the language could be construed to intend only the iTile of care required of passenger car- riers in the carriage of passengers, as laid down in Ingalls v. Bills, ubi supra; Warren V. Railroad Co., 8 Allen, 227; and White v. Railroad, 136 Mass. 321,— it would not be erroneous. The degree of care is not fixed solely by the relation of carriers and passen- gers; it is measured by the consequence which may follow the want of care. A rail- road company is held to the highest degree of care in respect to the condition and man- agement of its engines and cars, because negligence in that respect involves extreme peril to passengers, against which they can- not protect themselves. It would not act reasonably if it did not exercise greater care in equipping and running its trains than in regard to the condition of its station grounds. Exceptions sustained. 26 i CARRIERS OF PASSENGERS. Iinggage checked by wrong route. Responsibility for mistake rests on party checking it. Actionable negligence defined. Demurrer. Absence of contract relation. Bailment. Duty to avoid ivillf ul irrong. BEERS et ux. v. BOSTON & ALBANY R. R. CO. (67 Conn. — , 34 Atl. 541.) Supreme Court of Errors of Connecticut. March 26. 1896. Appeal from superior court, New Haven county. Action by William A. Beers and wife against tbe Boston & Albany Railroad Com- pany. From a judgment for defendant, plaintiffs appeal. Atfirmed. This was an action brought to the superior court for New Haven county for the loss of certain trunks intrusted to the defendant as a common carrier. The complaint contained two counts. The first- alleged (1) that the defendant was a common carrier between Albany and Springfield; (2) that pursuant to a contract between it and the Delaware & Hudson River Railroad Company, a common carrier between Saratoga and Albany, and the New York, New Haven & Hartford Rail- road Company, a common carrier between Springfield and New Haven, the defendant had long been in the habit of receiving bag- gage from the Delaware & Hudson River Railroad Company at Albany, and transport- ing it to Springfield, and there delivering it to the New York, New Haven & Hartford Railroad Company, whenever such baggage was so checked as to indicate that it was to be so carried and delivered; (3) that the de- fendant received at Albany, pursuant to said contracts, two trunks of the plaintiffs, with checks, one marked, "New Haven and Sara- toga— 1010— via B. & A. & N. Y., N. H. & H.," and the other marked in a similar manner, but with another number, which initials meant the Boston & Albany Railroad Com- pany, and the New York, New Haven & Hartford Railroad Company, and indicated that said checks were issued pursuant to said contracts, as in fact they were, and that said trunks were to be transported to Springfield over the defendant's railroad, and delivered to the New York, New Haven & Hartford Railroad Company, to be thence transported by it to New Haveu; (4) that in consideration of the receipt of said trunks, and of said contracts, the defendant assum- ed control of them, and engaged, as such common can'ier, to transport them to Spring- field, and there deliver them to the New York, New Haven & Hartford Railroad Com- pany; and (5) that the defendant, by its gross negligence, suffered said trunks to be destroyed, and never delivered them to the New York, New Haven & Hartford Railroad Company, or the plaintiffs. The second count, after repeating (1) the first three par- agraphs of the first count, added (2) that ths defendant, as such common carrier, received two trunks of the plaintiffs from the Dela- ware & Hudson River Railroad Company, at Albany, with the direction from it that they were to be safely transported to Springfield, and there delivered to the New York, New Haven & Hartford Railroad Company for further transportation to New Haven, said trunks being properly checked and marked for such destination, as the defendant well knew, and the defendant deposited them in one of its cars for such transportation over Its railroad; (3) that the defendant made up a train, containing said car, and started it for Springfield, in order to reach which it had to pass over a certain bridge; (4) that said bridge was then, and had long been, being repaired by the defendant, and consequently was, and long had been, in a defective and tmsafe condition, so that it could not sustain the weight and force of a train, and, when this train reached it, was, by the gross negli- gence of the defendant, in that condition, and wholly deserted by the defendant and its agents and servants, so that there was no one there to warn the conductor or engineer of its condition, or to signal the train to stop, by reason whereof it went on the bridge at full speed, and the bridge broke down, car- rying the car with it, into a stream below, whereby the trunks and their contents were ruined. The answer set up that the plain- tiffs bought tickets from Saratoga to New Haven over a route which was a rival to that of which the defendant's railroad formed a part, and comprised a steamboat line on the Hudson river between Albany and New York; that, without paying any considera- tion therefor, they caused their trunks to be checked over the route of which the defend- ant's railroad formed a part, to New Haven, by way of Albany and Springfield, and re- ceived checks indicating that their trunks were to be so transported; that the trunks bearing said checks were delivered to the Delaware & Hudson Canal Company at Sar- atoga, and were by it delivered at Albany to the defendant, to be transported to Spring- field, and there delivered to the New York, New Haven & Hartford Railroad Company for transportation to New Haven, and the de- fendant received them, supposing from the checks that they belonged to passengers who had bought tickets over its railroad; that the only contract between it and the Delaware & Hudson Canal Company was one provid- ing for the transportation of passengers who had bought such tickets, and that the plain- tiffs had neither bought nor held any such tickets, nor did they become passengers on the defendant's road, or enter into any con- tract with the defendant for the transporta- tion of said trunks; and that the trunks were destroyed without any willfulness, mal- ice, or intentional wrong, or anything equiv- alent or amounting thereto, on the part of the defendant. The reply stated that, when the plaintiffs checked the trunks, they were informed by the person who had the checks in his possession that they had the right, by CARRIERS OP PASSENGERS. 265- virtue of their tickets, to have the trunks checked in this way, over the defendant's railroad from Albany to Springfield; and they caused them to be so checked, supposing that he had the authority to make such statement and so to check said tninks, and relying upon and believing such statement, and were guilty of no fraud or intentional wrong, but acted in good faith. The defend- ant filed a demurrer to the reply, which was sustained; and, the plaintiffs declining to amend their pleadings, judgment was ren- dered for the defendant, from which this ap- peal was prosecuted. No error. Lyman E. Munson and E. P. Arvine, for appellants. George D. Watrous and Edward G. Buckland, for appellee. BALDWIN, J. If the defendant came un- der any obligation to make good the plain- tiffs' loss, it must have been either by virtue of some contract between them, or of action- able negligence. No such contract is alleged, unless one can be implied from the recep- tion by the defendant at Albany of their luggage, so checked as to indicate that it was to be transported over its railroad to Spring- field. It is not averred that the peraon from whom they obtained the checks was an agent of the defendant,* or had any authority to act or speak in its behalf, nor even that he was an agent of the Delaware & Hudson Canal Company, with which the defendant was in contract relations. His statements, therefore, and the plaintiffs' reliance upon them, are of no importance, except as evin- cing their good faith in the transaction. On the other hand, the effect of the reply was to admit that the defendant received the luggage under the mistaken supposition that it belonged co passengers who had bought tickets over its road, and so that its trans- portation on its railroad had been duly paid for. Had trunks marked as destined to Springfield been received by the defendant without any particular contract or under- standing in regard to their transportation, it would have assumed, simply from its posi- tion as a common carrier, an obligation to transport them safely, and have had a right to a proper compensation when the service was performed. But an express contract existed between it and the Delaware c& Hud- son Canal Company, under which it was bound to receive the personal luggage of pas- sengei-s who held tickets entitliug them to pass over both roads between Saratoga and Springfield, and the defendant was led by the checks to suppose that the trunks of the plaintiffs were luggage of that character. It did not, therefore, receive them under such circumstances as to create such an implied contract with their owners. An implied contract between two parties is only raised when the facts are such that an intent may fairly be inferred on their part to make such a contract. Such an intent may be im- plied, although it be certain that it never actually existed, but not unless the parties; are in such relations that each ought to have had it. In the case at bar the facts not only do not justify, but absolutely exclude, such an implication. The plaintiffs did not in- tend to pay the defendant for the transpor- tation of the trunks. They supposed that they had already paid for this, in purchasing tickets to New Haven by way of the Hudson river. The defendant did not intend to make any charge for their transportation. It sup- posed that compensation for this had been made already, under, and as an incident of, an express contract, made in its behalf by the Delaware & Hudson Canal Company, for the transportation of the owners, as passengers, over its railroad. The plaintiffs and the de- fendant were alike misled by appearances. It is one of those cases where a loss must be sustained by one or the other of two parties who are equally innocent of wrong, but one of whom placed it in the power of a third person to do the act which caused the injury.- The plaintiffs acted in good faith in accept- ing the checks in question from some one- in Saratoga, and causing them to be placed on thqir trunks; but it was this that induced the Delaware & Hudson Canal Company tO' deliver the luggage to the defendant at Al- bany, and the defendant to receive it as be- longing to those whose right it wa.s to have- it transported over its line to Springfield. The plaintiffs could not in this way force the defendant into a contract relation which it; certainly would never have intentionally as- sumed. The defendant, having taken the plaintiffs' property into its possession for transporta- tion over a railroad which it operated as a common carrier, was not free from all re- sponsibility for its safe-keeping, notwith- standing it accepted Its custody without any contract, express or implied. It is admitted by the pleadings that not only did the de- fendant run the train, in which the property was, upon a bridge which was, and long had been, so defective that it could not sustain such a burden, but also that no one was sta- tioned there to give any warning of the dan- ger, or signal the train to stop, and that the luggage was destroyed by reason of its gross negligence in these respects, but "without any willfulness, malice, or intentional wrong, or anything equivalent or amounting there- to." The defendant did not receive the ti-unks in the capacity of a common carrier- of goods for hire. They were delivered to it, and accepted by it, in the capacity of a com- mon carrier of passengers for hire. In fact, there were no passengers to be carried, to whom they belonged; but this, whether then known or unknown to the defendant, would be no excuse for any willful or intentional injury to property actually in its possession. We think, however, that it was a sufficient excuse for the negligence which is confessed. Actionable negligence is the neglect of a duty. What duty did the defendant owe to- •266 CAKEIEBS OF PASSENGEIiS. the plaintiffs? Simply that of abstaining from anything amounting to willful or wan- ton injury to their property in its possession. Gardner v. New Haven & Northampton Co., 51 Conn. 143, 150. That cannot be deemed a wanton exposure of it to destruction which consisted only in running a train of cars up- on an unsafe bridge, by which its own prop- erty, as well as theirs, was involved in a common loss. "Negligence signifies a want of care in the pei-formance of an act by one having no positive intention to injure the person complaining of it." Pitkin v. Rail- road Co., 64 Conn. 482, 490, 30 Atl. 772. It is true that this definition might not exclude the liability, in some instances, of a princi- pal, on the ground of negligence, for dam- age consequent upon a direct act of violence or trespass on the part of servants, but this is not a case of that description. The gross negligence with which the defendant was chargeable consisted wholly of omissions. There was no willful wrong, nor yet such reckless misconduct as can be deemed its equivalent. Had the defendant voluntarily assumed the position of a "depositary" (tak- ing this term in its strict meaning of a. bailee without reward), it would not have been bound under the rules of the Roman law (which have become a part of the common law) to treat the plaintiffs' property with any more care than it gave to its own. Coggs V. Bernard, 2 Ld. Raym. 909; Dig. 16.3, "Depositi vel Contra," 32. Good faith would have been the measure of its obliga- tions. Dig. 16, 3, 20. He who intrusts his property to a careless man, if loss ensues, must lay it to the account of his own im- prudence in putting it into such hands. Inst. 3, 15, "Quibus Modis Re contrahitur Obliga- tio," 3. But in the case before us the ele- ments of a bailment are wanting, for there was no contract, express or implied, between the parties. 2 Kent, Comm. *780. The de- fendant's obligations, not being contractual, were less than those attaching to bailees of any class. No man can have the care of another's property thrust upon him, without his invitation or consent, in such a way as to raise a duty calling for the performance of positive acts of protection. He might be bound to refrain from acts of direct injury. This is a mere negation of wrongdoing. A man acts at his peril; but he is never liable for omissions, except in consequence of some duty voluntarily undertaken. Holmes, Com. Law, 82. Had the defendant willfully thrown the plaintiffs' trunks from the bridge into the stream below, a liability would have been incurred; but this would have been an act of violence, not an absence of care. Gross negligence is not actionable where not even slight care was due. Dunlap v. Steam- boat Co., 98 Mass. 371, 379. However blame- worthy, it is still essentially different from intentional wrongdoing. "Magna negligen- tia culpa est, magna culpa dolus est." Dig. 50, 16, "De Verborum Slgniflcatione," 226. Had the checks indicated that the trunks were to be sent over the river route, their reception by the defendant for carriage over its route would have presented a very dif- ferent question. Fairfax v. Railroad Co., 73 N. Y. 167, 170. The ruling on the demurrer, with which the pleadings under the original complaint were closed, was in conformity to the views which we have expressed. It is therefore unnecessary to inquire whether, had there been error, it would not have been waived by filing a substituted complaint. There is no error in the judgment appealed from. Of. Dunlop n. International Steamboat Co., 9S Mass. 371; Beoher v. Great Eastern Ry. Co., L. R. 5 (^. J3. i^41* CARRIEltS or PASSENGERS. 267 Free pass. Conditions exempting company from liability for accident. Pass to be signed, but not signed. Drover's pass. Gross negligence. QUIMBY V. BOSTON & MAINE R. R. CO. (150 Mass. 365, 23 N. E. 205.J Supreme Judicial Court of Massachusetts. Essex. Jan. 1. 1890. Report from superior court, Essex coun- ty; Albeht Mason, Judge. An action of tort by Asahel Quimby against the Boston & Maine Railroad, for personal injuries sustained in a collision upon its railroad. H. P. Moulton, for plaintiff. S. Lincoln and W. I. Badger, for defendant. DEVENS, J. When the plaintiff received his injury he was traveling upon a free pass given him at his own solicitation, and as a pure gratuity, upon which was ex- pressed his agreement that, in considera- tion thereof, he assumed all risk of acci- dent which might happen to him while traveling on or getting off the trains of the defendant railroad corporation on which the ticket might be honored for passage. The ticket bore on its face the words, " provided he signs the agreement on the back hereof." In fact the agree- ment was not signed by the plaintiff, he not having been required to do so by the conductor who honored it as good for the passage, and who twice punched it. The fact that the plaintiff had not signed, and was not required to sign, we do not re- gard as important. Having accepted the pass, he must have done so on the condi- tions fully expressed therein, whether he actually read them or not. Squire v. Rail- road Co., 98 Mass. 239; Hill v. Railway Co.. 144 Ma.ss. 284, 10 N. E. Rep. 836; Rail- road Co. V. Ctiipman, 146 Mass. 107, 14 N. E. Rep. 940. The object of the provision as to signing is to furnish complete evidence that the person to whom the pass is issued assents thereto; but one who actually avails himself of such a ticket, and of the privileges it confers, to secure a passage, cannot be allowed to deny that he made the agreement expressed therein, because he did not and was not required to sign it. Railway Co. v. McGown, 65 Tex. 643; Rail- road Co. V. Read, 37 111. 484; Wells v. Rail- way Co., 24 N. ¥. 181; Perkins v. Railway Co., Id. 196. If this is held to be so, the case presents the single inquiry whether such a contract is invalid, which has not heretofore been settled in this state, and upon which there has been great contra^ riety of opinion in different courts. If the common carrier accepts a person as a pas- senger, no such contracthavingbeenmade, such passenger may maintain an action for negligence in transporting him, even if he be carried gratuitously. Having ad- mitted him to the rights of a passenger, the carrier is not permitted to deny that he owes to him the duty which, as carry- ing on a public employment, he owes to those who have paid him for the service. Files V. Railroad Co., 149 Mass. 204, 21 N. E. Rep. 311 ; Todd v. Railroad Co., 3 Allen 18; Com. V. Railroad Co., 108 Mass. 7; Little- john V. Railroad Co.,14S Mass. 478, 20 N. E. Rep. 103; Railroad Co. v. Derby, 14 How. 468; The New World v. King, 16 How. 469. But the question whether the carrier may, as the condition upon which he grants to the passenger a gratuitous iiassage, law- fully make an agreement with him by which the passenger must bear the risks of transportation, obviously differs from this. In a large number of cases the English decisions, as well as those of New York, have held that where a drover was per- mitted to accompany animals upon what was called a "free pass," issued upon the condition thattheusershouldbearall risks of transportation, he could not m aintain an action for an injury received by the negli- gence of the carrier's servants. A similar rule would without doubt be applied where a servant, from the peculiar charac- ter of goods, as delicate machinery, was permitted to accompany them, and in other cases of that nature. That passes of this character are "free passes," properly so called, has been denied in other cases, as the carriage of the drover is a part of the contract for the carriage of the animals. The cases on this point were carefully ex- amined and criticised by Mr. Justice Bead- ley in Railroad Co. v. Lock wood, 17 Wall. 367, and it is there held that such a pass is not gratuitous, as it is given as one of the terms upon which the cattle are carried. The decision is put upon the ground that the drover was a passenger carried for hire, and that with such passenger a con- tract of this nature could not be made. The court, at the conclusion of the opinion, expressly waives the discussion of the ques- tion here presented, and, as it states, pur- posely refrains from expressing any opin- ion as to what would have been the result had it considered the plaintiff a free pas- senger instead of one for hire. RailwayCo. V. Stevens, 95 U. S. 655, in which the same distinguished judge delivered the opinion of the court; is put upon the ground that the transportation of the defendant, al- though not paid for by him in money, was not a matter of charity or gratuity in any sense, but was by virtue of an agreement in which the mutual interest of the parties was consulted. Whether the English and New York au- thorities rightly or wrongly hold that one traveling upon a "drover's pass," as it is sometimes called, is a free passenger, they show that, in the opinion of these courts, a contract can properly be made with a free passenger that he shall bear the risks of transportation. This is denied by many courts whose opinions are entitled to weight. It will be observed that in the case at bar there is no question of any willful or malicious injury, and that the plaintiff was injured by the carelessness of the defendant's servants. The cases in which the passenger was strictly a free passenger, accepting his ticket as a pure gratuity, and upon the agreement that he would himself bear the cost of transporta- tion, are corriparativoly few. They have all been carefully considered in two recent cases, to which we would call attention. These are Griswold v. Railway Co., 53 Conn. 371, ( 1885, )i and that of Rail way Co. V. McGown, ubi suijra, (1886,) in which the 1 4 Atl. 261. 268 CARRIERS OF PASSENGERS. precise question before us was raised, and decided, after a careful examination of the authorities, in a different manner by the highest court of Connecticut and that of Texas. No doubt existed in either case, in the opinion of the court, that the ticket of the passage was strictly a gratuity, and it was held by the former court that, under these circumstances, the carrier and the passenger might lawfully agree that the jjassenger should bear the risks of trans- portation, and that such agreement -would be enforced, while the reverse was held by the court of Texas. We are brought to the decision of the question unembarrassed by any weight of authority without the commonwealth that can be considered as preponderating. It is urged on behalf of the plaintiff that, while the relation of passenger and car- rier is created by contract, it does not fol- low that the duty and responsibility of the carrier are dependent upon the contract; that while, with reference to matters in- different to the public, parties may con tract according to their own pleasure, they can- not do so where the public has an interest ; that, as certain duties ai-e attached bylaw to certain employments, these cannot be waived or dispensed with by individual contracts; that the duty of the carrier re- quires that he should convey his passen- gers with safety; that he is properly held responsible in damages if he fails to do so by negligence, whether the negligence is his own or that of his servant's, in order that this safety may be secured to all who travel. It is also said that the carrier and the passenger do not stand upon an equal- ity ; that the latter cannot stand out and higgle or seek redress in courts; that he must take the alternatives the carrier nre- sents, or practically abandon his business in the transfer of merchandise, and must yield to the terms imposed on him as a passenger; that heoughtnot to be induced to run the risks of transportation, for being allowed to travel at a less fare, or for any similar reason, and thus to tempt the car- rier or his servants to carelessness which may affect others as well as himself; and that. In a few words, public policy forbids that contracts should be entered into with a public carrier by which he shall be exon- erated from his full responsibility. Most of this reasoning can have no application to a strictly free passenger, who receives a passage out of charity or as a gratuity. Certainly the carrier is not likely to urge upon others the acceptance of free passes, as the success of his business must depend on his receipts. There can be no difficulty in the adjustment of terms where passes are solicited as gratuities. When such passes are granted by such of the railroad officials as are authorized to issue them, or other public carriers, it is in deference largely to the feeling of the communityin which they are exerciteing a public employment. The instances cannot be so numerous th.-it any temptation will be offered to carelessness in the management of their trains, or to an increase in their fares, in both of which subjects the public is interested. In such instances one who is ordinarily a common carrier does not act as such, but is simply in the position of a gratnltousbailee. The definition of a "common carrier," which is that of a person or corporation pursuing the public employment of carrying goods or passengers for hire, does not apply un- der such circumstances. The service which he undertakes to render is one which he is under no obligation to perform, and is out- side of his regular duties. In yielding to the solicitation of the passenger, he con- sents, for the time being, to put off his pub- lic employment, and to do that which It does not Impose upon him. The plaintiff was in no w^ay constrained to accept the gratuity of the defendant. It had been yielded to him only on his own solicitation. When he did, there is no rule of public pol- icy, we think, that prevented the carrier from prescribing, as the condition of it, that it should not be compelled, in addi- tion to carrying the passenger gratuitous- ly, also to be responsible to him in dam- ages for the negligence of its servants. It is well known that, with all the care that can be exercised in the selection of serv- ants for the management of various appli- ances of a railroad train, accidents will sometimes occur from momentary careless- ness or inattention. It is hardly reasona- ble that besides the gift of free transporta- tion the carrier should be held responsible for these, when he has made it the condi- tion of his gift that he should not be. Nor, in holding that he need not be under these circumstances, is anycountenr^nce given to the idea that the carrier may contract with a passenger to convey him for a less price on being exonerated from responsi- bility for the negligence of his servants. In such a case the carrier would still be act- ing in the public employment exercised by him, and should not escape its responsibili- ties, or limit the obligations which it im- poses upon him. In some cases It has been held that while a carriercannot limit his liabilityfor gross negligence, which has been defined as his own personal negligence, (or that of the corporation Itself, where that is the carri- er,) he can contract for exemption from li- ability for the negligence of his servants. It may be doubted whether any such dis- tinction In degrees of negligence, and the right of a carrier to exempt himself from responsibility therefor, can be profitably made or applied. The New World v. King, 16 How. 469. It is to be observed, howev- er, that in the case at bar the injury oc- curred through the negligence of defend- ant's servants, and not through any fail- ure on the part of the corporation to pre- scribe proper rules or furnish proper appli- ances of the conduct of its business. We are of opinion that where one accepts, purely as a gratuity, a free passage upon a railroad train, upon the agreement that he will assume all risk of accident which may happen to him, while traveling on such train, by which he may be injured in his person, no rule of public policy requires us to declare such contract invalid and without binding force. By the terms of the report there must therefore be judg- ment for defendant. CARRIERS OF FREIGHT. 269 Bill of lading. Varying by parol. Connecting lines. Destination beyond ronte of first carrier. Discretion to cboose betiveen different routes. No recovery on common-la'w liability -nrbere a special contract was made. SNOW et al. v. INDIANA, BLOOMINGTON & WESTERN RY. CO. (109 Ind. 422, 9 N. E. 702.) Supreme Court of Indiana. Jan. 4, 1887. Appeal from circuit court, Clinton county. Paul Humphries, Davidson & Dice, Wm. M. Reeves, and S. O. Bayless, for appellants. Otto (Jresliam and W. R. Moore, for appellee. MITCHELL,.!. The plaintiff below brought this suit against the railway company to re- cover damages for an alleged breach of a contract for the shipment of a car-load of horses from Ci"awfordsviIle, Indiana, to Buf- falo, New Yorli, en route to Boston, Massa- chusetts. At the time the horses were de- livered for shipment by the appellants' agent, the latter received from the railway company a bill of lading, which contained, among other stipulations, the following: Live-stock Contract. The Indiana, Bloominffton & Western Railway. Crawfordsville, Augufltl4, 1«S3. Received from W. H. Scliooler tlie loUowing stock: 17 horses. Cars. Consignee's Inir.ial. No. marks. 2 1). & S. 1.275. Destina- tion, etc. C. & B. .Snow. Boston, Mass. Bill of Lading, (Contracting.) From Crawfordsville to BuBalo, N. T., via Through at $73 per car-load. Consigned, numbered, and marked as per raar^in, to be transported by the Indi- ana, BloomiKs;ton & West^ ern Railway to its freight station at Indianapolis, ready to be delivered to the consignee or his order, or (if ttie same is to be for- warded be.vond said sta- tion) to the agent of a connecting railroad or forward- ing company, whose iiny may be considered a part of the route to the placi of destination designated in the mar- gin, to be in like manner forwardeil and delivered to and by each succneding railroad or forwarding compau.v in the route, unlil it reaches the point contracted for in this bill of lading. It was assigned as a breach of its contract that the railway company received the horses, and carried them by its own line to In- dianapolis; after which, instead of deliver- ing them to the "Bee-Line Route," as it was alleged it had agreed to do, it delivered them to the "Nickle-Plate Road," which, by rea- son of the latter being the longer route by about 300 miles, delayed the horses in ar- riving at Boston some four days beyond what would have been required by the other route. By reason of this delay, and the un- fitness of the route chosen, it is alleged the horses sustained permanent injury. It is also alleged that the failure to ship by the "Bee- Line Route" was a violation of the contract of shipment. The complaint is in two paragraphs. The bill of lading was made a part of the first paragraph. Both paragraphs count upon the violation of an alleged agreement to ship from Indianapolis to Buffalo, New York, by the "Bee-Line Route." The defendant an- swered by a general denial. The case was submitted for trial to a .iury. Under instruc- tions from the court, the jury returned a verdict for the defendant At the trial the plaintiffs produced W. 11. Schooler, their agent at Crawfordsville, In- diana, and, by suitable questions addressed to him while testifying as a witness, pro- posed to prove that, prior to the shipment of the horses, the plaintiffs, through the wit- ness, made a contract with the agent of the railway company by which it was agreed that the company should ship the horses by its route to Indianapolis; thence, by the "Bee-Line Route," to Buffalo, New York. The plaintiffs proposed to prove, further, that it was agreed that the horses were to be unloaded at Gallion, Ohio, a regular feed- ing point on the route last above mentioned, and that, after being fed and watered, they were to be again reloaded, and carried by that route to Buffalo. They proposed to prove, further, that the defendant had car- ried other car-loads of horses for the plain- tiffs under this same arrangement, which was by parol, and that they had been car- ried over the "Bee-Line Route." The bill of lading having been exhibited to the court, and it having been made to ap- pear that the shipment in question had been made by the company after such bill of lading had been delivered to and received by the plaintiffs' agent, the court excluded all evidence relating to any parol agreement covering the subject of the shipment. Wheth- er such evidence was admissible is the only question presented for consideration. The appellants contend, there being no route stipulated in the bill of lading, that it became the duty of the appellee to forward the horses by the usual and most direct route from Indianapolis to Buffalo, and that hence the evidence offered should have been received. This proposition is in part abun- dantly maintained, but this does not meet the point in dispute. Having taken a bill of lading which, upon its face, designates no particular route by which the horses were to be forwarded after reaching the terminus of the appellee's line, was it competent, nev- ertheless, to prove a parol agreement to for- ward by a particular line? Conceding that a carrier is liable for any injury resulting to a shipper by reason of its selection of an unusual or indirect route, by wliich to for- ward freight which is destined to a point beyond its line, the question still remains, how was it material or competent to add to or vary the written contract of shipment by proof of a previous parol agreement? A shipper who receives a bill of lading for goods consigned to a point beyond the ter- minus of the initial carrier's line, authorizes the initial carrier to select any usual or reasonably direct and safe route by which to forward, after the goods reach the end of his line, unless the particular line by which the goods consigned, are to be for- warded, is designated in the bill of lading. I In such a case, the bill of lading being silent 270 CARRIERS OF FREIGHT. in respect to the line by which the goods are to be forwarded, its effect is the same as if a provision were therein inserted that the carrier should have the right to select, at his discretion, any customary or usual route which was regarded as safe and re- sponsible. This provision, being thus im- ported into the contract by law, is as un- assailable by parol as are any of the other express terms of the contract. White v. Ashton, 51 N. Y. 280; Hinckley v. Railroad, 56 N. Y. 429; Simkins v. Steam-boat Co., 11 Cush. 102; Hutch. Carr. § 312; Hudson Canal Co. V. Pennsylvania Coal Co., 8 Wall. 276, 288. Stipulations which the law imports into .a contract become as effectually a part of its terms as though they were expressly written therein. Long v. Sti-aus, 107 Ind. 94, 6 N. E. 123, and 7 N. E. 763. In the absence of fraud or mistake, it must be conclusively presumed that the oral negotiations respect- ing the terms and conditions upon whicli the goods were received, and the route by which they were to be forwarded, are mer- ged in the bill of lading. This must be taken as the final depository, and the sole evi- dence, of the agreement between the parties. Indianapolis, etc., Co. v. Remmy, 13 Ind. 51S; Hall v. Pennsylvania Co., 90 Ind. 459; Bart- lett V. Pittsburgh, etc., Co., 94 Ind. 281. The cases last cited maintain the rule that where suit is brought against a common carrier for a breach of common-law duty, in failing to carry or deliver goods, if the evidence shows that the goods were received under a special written contract which was not de- clared on, the variance is fatal, and there can be no recovery. This suggestion disposes of all that is said by counsel In respect to the competency of the offered evidence, as applicable to the sec- ond paragraph of the complaint. Since it appeared that the goods were received for shipment under the written contract set up in the first paragraph of the complaint, there could, in no event, have been a recovery un- der the second paragraph, which simply counted upon a breach of the carrier's com- mon-law duty. The facts offered in evidence do not bring the case under consideration within the principle which ruled the case of Guillaume v. General Transportation Co., 100 N. Y. 491, 3 N. B. 489. In that case the goods had been received and actually ship- ped in pursuance of a parol contract. It was held that the subsequent receipt of a bill of lading did not preclude the shipper from showing the terms of the parol contract un- der which the goods were received and ship- ped. In that case the court said: "As a gen- eral rule, where goods are delivered to a car- rier for transportation, and, before the goods are shipped, a bill of lading or receipt is de- livered by him to the shipper, the latter is bound to examine it and ascertain its con- tents, and, if he accepts it without objection, he is bound by its terms. He cannot set up ignorance of its contents, and resort cannot be had to prior parol negotiations to vary them." Germania, etc., Co. v. Memphis, etc., Co., 72 N. y. 90. The plaintiffs' case, as made by their com- plaint, proceeded upon the theory that the appellee violated its contract by shipping the property delivered to it over an unusual and indirect route, which was not provided with proper facilities for the care of stock, when another customary, direct, and more available route was open for carriage. It was competent to have recovered upon this theory, if the facts had sustained it, with- out proof of a parol agreement such as was offered. Such proof was neither material nor competent after it had been made to ap- pear that, prior to the shipment, a written bill of lading had been received by them which covered the terms of shipment. There was no error. The judgment is af- firmed, with costs. CARRIERS OF TaEIGHT. 271 Bill of lading never delivered. Agency. Evidence of parol contract. Construc- tion of ^rriting hy the conrt in the light of extrinsic facts. Brror, tvorking no injury. Suit by a holder of legal title. Parties. Insurance. Subrogation. Amount of loss, not of insurance paid, the rule of damages. Interest. Conflict of laivs. Time for escepting to charge. General objection. MOBILE & MONTGOMERY RY. CO. v. JUREY et al. (Ill U. S. 584, 4 Sup. Ct. 566.) Supreme Court of the United States. May 5, 1884. In error to tlie circuit court of the United States for the Middle district of Alabama. The defendants in error, Jurey & 'Gillis, brought this action for the use of the Fac- tors' & Traders' Insurance Company against the plaintiff in error, the Mobile & Jlout- gomery Railway Company, to recover $12,- 000 for the failure of the latter to deliver certain cotton which had been placed in its possession as a common earner. The com- plaint, which was drawn according to the form prescribed by the Code of Alabama, was as follows: "The plaintiffs claim of the defendant the sum of twelve thousand dol- lars as damages for the failure to deliver certain goods, viz., one hundred and ninety- seven bales of cotton, weighing ninety-six thousand nine hundred and thirty-six pounds, received by the defendant, as a common car- rier, to be delivered to the plaintiffs at New Orleans, La., for a reward, which it failed to do." The railroad company pleaded the following pleas: "(1) The defendant, for an- swer to the complaint, says it is not guilty of the matters alleged therein. (2) For fur- ther answer to the complaint the defendant says that the plaintiffs, the said Jurey & Gil- liSj were paid the damages for the recovery of which this suit is brought, before the action was commenced." The plaintiffs demurred to the second plea. The demuiTer was sus- tained. The cause was then tried on an is- sue joined on the first plea, and resulted in a verdict and judgment for the plaintiffs for $10,344.25. The defendant has by this writ of eiTor brought the judgment under review. David Clopton and Thos. G. Jones, for plaintiff in error. D. S. Troy, H. C. Tomp- kins, and Henry C. Semple, for defendants in error. WOODS, J. All the evidence in the case is set out in the bill of exceptions taken at the trial. It tended to show the following facts: The cotton mentioned in the . com- plaint was delivered at Montgomery, Ala- bama, by the defendants in error, Jurey & Gillis, to the plaintiff in en-or, the railroad company, to be transported to New Orleans, and there delivered to the shippers. The cotton consisted of 264 bales. The train up- on which it was shipped was made up as follows: There were eight or ten box cars next to the engine; behind these were four flats loaded with the cotton, not covered by tarpaulins; and next to them, and last of the train, was a cab car in which the con- ductor rodo. There were two men with buck- ets of water, besides the conductor and brakeman, to watch the cotton. While run- ning down grade at about 20 miles an hour, and when the engine was not emitting any sparks, the signal to halt was given by the bell, and the cotton was discovered to be on fire. Every effort was made to stop the train as soon as possible, and, when this was done, the hands on the train did what they could to save the cotton; but the fire was too hot, and the burning cars and cotton were consumed. The woods, through which the train was running when the fire oc- curred, were on fire, and the woods were frequently burning along the defendant's road at that time of the year. It further ap- peared that all the cotton loaded on the plat- form cars, consisting of 197 bales, was con- sumed and, of course, never delivered to Jurey & Gillis. The contract for the transportation of the cotton was made by Jurey with T. K. Scott, the agent of the railroad company in Mont- gomery, .lurey testified: "I arranged with Scott to take the two hundred and sixty bales to New Orleans for two dollars per bale. When the cotton was ready for ship- ment and hauling to the railroad deiwt I a:gain visited Mr. Scott, at the company's of- fice in Montgomery, in order to ascertain when my risk ceased and that of the com- pany began, and Scott answered that soon as the cotton was delivered on the railroad platform the cotton would be at the risk of the company." Jurey further stated: "I contracted with the railroad company, through its agent, Mr. Scott, to deliver the cotton in New Orleans for two dollars per bale, with the distinct understanding that it was at the railway company's risk as soon as delivered on its platform at Montgomery. After the cotton had been destroyed by fire I saw the bill of lading for the first time, and noticed that risk by fire was excepted. I immediately went to Mr. Scott and called his attention to it, and that such was not our agreement. The bill of lading was ob- tained by Mr. C. Hall, the broker in the premises. I paid an outside rate of freight in consideration of having the cotton trans- ported without any exceptions *or conditions." He further stated as follows: "We have been paid by the Factors' & Traders' Insur- ance Company, of this city, [New Orleans,] by reason of its having been covered under our open policy, and this suit is for the use and benefit of that company as subrogee of our rights, because we reinsured the cotton in that company notwithstanding that de- fendant had guarantied its delivery." Scott testified that, while the cotton was being de- livered on the railroad platform at Mont- gomery, and before the signing of the bill of lading, Jurey asked him if the railroad com- pany would be responsible in the event the 27 CARHIEES OF rKE-.GHT. •cotton was burned on the platform or in the «ars, and lie replied it would be in either event. Crenshaw Hall testified that he was .a cotton broker in Montgomery, and acted for Jurey in delivering the cotton at the rail- road company's depot; that he made no agreement and had no understanding with the railroad company in regard to the rate of freight, but simply sent the cotton to the depot by order of Jurey; Jurey told him that he himself would make the contract with the railroad company, as he thought he could get better rates. When the cotton was all -delivered at the depot, witness received a bill of lading therefor. When the bill was delivered to him, Jurey, according to his 'recollection, was in the country, 10 miles from Montgomery, and did not return until news had been received of the burning of the cotton. The bill of lading was signed in the handwriting of M. H. Sayer, a freight «lerk at the depot of the railroad company in Montgomery. It was as follows: "Mo- Mle and Montgomei-y Railway Company. Received, from C. Hall, two hundred and sixty-four (264) bales cotton, of which are in bad order, marked as stated below, and consigned to Jurey & Gillis, to be trans- ported and delivered to same, New Orleans, at the rate of . And, in consideration of above rate, it is agreed upon and distinct- ly understood that the shipper releases tbe Mobile &. Montgomery Railway Co. and con- nections from all liabilities for any loss or idamage that may occur from the bursting of ropes and bagging, old damage, wet, or from fire while upon their roads." Then fol- lowed a statement of the nimiber of bales -of cotton and the marks. At the foot of the bill were the words and figures: "Frt. $2.00 bale." The court, of its own motion, among other instructions, gave the jury the following: ^'That the ground taken in argument by counsel for the railroad company was not the law; to-wit, if Jurey & Gillis, before the , ■commencement of the suit, had been paid by the Factors' & Traders' Insurance Company, as insm'ers, paying the loss it had insured against, and if Jurey & Gillis had no interest in the recovery, then the insurance company was the real plaintiff, and the burden of proof was on it to show the jury, by satis- factory evidence, how much it had so paid; and that if it failed to do so, or to give the jui-y evidence 'to enable them to determine satisfactorily what its loss or damage was, then nothing more than nominal damages -could be recovered." The court further char- ged the jnry, of its own motion, that if the plaintiffs were entitled to recover, the meas- ure of the damages would be the value of the cotton at New Orleans, where It was to have been delivered, together with interest on said stun so ascertained, at the rate of 8 per cent, per annum, from the time when the -cotton ought to have been delivered. The •«ourt, at the instance -mt the plaintalE's coun- sel, gave the following instruction: "That the paper read in evidence by the defendant, as a bill of lading, contains no restriction upon the liability of the defendant as a com- mon carrier." The defendant asked the court to give the juiy the following instructions: "(2) If the jury find from the evidence that Jurey & Gillis insured said cotton in and by the Factors' & Traders' Insurance Company, for whose use this suit is brought, then, upon the loss of the cotton by fire, and payment of the insurance money by the insurance company to Jurey & Gillis, the insurance company was subrogated to the rights of Jurey & Gillis, and can maintain a suit in the name of Jurey & Gillis for their use to recover the amount paid by them to Jurey & GiUis; but upon these facts the plaintiiCfs cannot recover under the complaint in this case, and if the jury find such to be the facts, they must find for the defendant." "(4) If the jury find from the evidence that Jurey & Gillis were paid by the Factors' & Trad- ers' Insurance Company (for whose use this suit is brought) before this salt was brought, for the damages sustained by Jurey ■& Gillis by the burning of the cotton, then tlae plain- tiffs cannot recover in this action and under the complaint in this case." The conrt re- fused to give either of these instructions. The first assignment of error ai'gued toy the counsel for plaintiffs in error relates to the admission in evidence of the testimamy of Jurey and Scott, in respect to the terms of the contract by which the railroad com- pany undertook to transport the cotton of the defendants in error to New Orleans. The contention is that the bill of lading was the contract, and, being in writing, no parol evi- dence could be received to vary its stipula- tions. Before this rule can be applied the contract in writing must be shown to be the contract of the parties. One of the vital questions in the case was, what was the con- tract between the parties? No particular form or solemnity of execution is required for a contract of a common carrier to trans- port goods. It may be by parol, or it may be in writing; in either case it is equally binding. Transportation Co. v. Moore, 5 Mich. 368; Shelton v. Merchants' Dispatch T. Co., 59 N. Y. 258; Roberts v. Riley, 15 La. Ann. 103. The defendants in error insisted that the contract between them and the railroad company was by parol; that it was made, between Jurey for the defendants in error, and Scott for the railroad company, and denied that the bill of lading was the contract, and alleged that it had never been deliveied to the defendants in error, but on- ly to Hall, who was not authorised to make a contract for them. It is plain, upon this stateiment of the 'CcmtToversy, that evidence of the parol contract was perfectly competent, and it was a question to be decided by the jury whether the undea-standimg, as detailed by the witmesses, or the bill of lading ex- CAKEIEliS OF FREIGHT. 273 pressed the agreement of the parties. The evidence that the contract was by parol, and was not the contract expressed in the bill of lading, came from Jurey, one of the defend- ants in eiTor, and from Scott, the agent of the plaintiff in error, between whom it was made, and was not contradicted. The conten- tion that this evidence should have been ex- cluded, is certainly not based on any solid ground. There is nothing in this assignment of error for which the judgment should be reversed. The next contention of the plaintiff in error is that the court erred in instructing the jury "that the poper read in evidence by the defendant as a bill of lading contains no restriction upon the liability of the defend- ant as a common carrier." It is insisted that the purport of the charge is that, inde- pendent and irrespective of the parol evidence, and upon its face, the contract contains no restriction. But sucii is evidently not the meaning of the instruction, because the words of the bill of lading clearly import an excep- tion to the liability of a common carrier. What the court must have meant was that, in view of the circumstances under which the bill of lading was executed, as detailed by the uncontradicted evidence of the witnesses, tak- en in connection with the fact that the rate of freight, which is stated to be the consid- eration for the exception, is left blank in the body of the bill of lading. It was not the intention of the parties to the contract that the railroad company should be exempted from any of the liabilities of a common carrier. The court was called upon to construe a paper writing; It must be conceded that the writ- ing was open to construction. It was the right and duty of the court, in order to de- cide upon its meaning, to look not only to the language employed, but to the subject- matter and surrounding circumstances. Bar- reda v. Silsbee, 21 How. 161; Nash v. Towne, 5 Wall. 689; Canal Co. v. Hill, 15 Wall. 94. When, therefoie, the court was required to state authoritatively to the jury the meaning of the bill of lading, it cannot be presumed that it shut its eyes to the strong light thrown on it by the facts attending its execu- tion, or that its instruction is to be inter- preted as applying only to the words of the contract. It must be presumed that the court used all proper means to ascertain the true meaning of tne bill of lading, and we think its interpretation, in view of aU the circum- stances of the case, was the right one. The next ground upon which the plaintiffs in error ask a reversal of the judgment is the refusal of the court to give the charges numbered 2 and 4 as requested by the plain- tife in error. The argument in support of this assignment Is as follows: Section 2891 of the Code of Alabama provides: "In all cases where suitsi are brought in the name of the person having the legal right, for the use of another, tl-e beneficiary must be con- sidered as the sole party in the record." In BALD W. SE U CAS. R. K. — 18 no part of the body of *he complaint is there any averment showing in what way and by what means the Factors' & Traders' Insur- ance Company acquired an interest in this suit or a right to bring this action in the name of the owners of the cotton for their use, or that they have any interest in the suit; and as the evidence shows that the Factors' & Traders' In-^urance Company ac- quired theii right to bring a suit against a carrier by having paid their insurance liabil- ity to Jurey & Gillis, which was a secondary liability, the carrier being primarily liable, the form of complaint adopted in this case was not sufficient: that the complaint should state with certainty the facts showing the right of the insurance company to bring the action and the amount of the recovery to which they are entitled. The ground of their contention is that the recovery must be lim- ited to the amount paid by the insurance company to the defendants in error, and that the burden is on the insurance company to prove what sum was so paid. This is an attempt to reverse the judgment of the cir- cuit court on a question of pleading. The rec- ord in the case, in our opinion, shows that the plaintiff in error made a contract for the transportation of the cotton of the plaintiffs, with no exception of the carrier's common- law liability; that it did not deliver the cot- ton, for the value of which this suit is brought; that the cottou was destroyed while In the possession ot the plaintiff in error, and was a total loss; and that the loss has been paid to the defendants in error by the insurance company. Under these circumstan- ces, as it plainly appears on the face of the record that the judgment of the circuit court was right, it would not be reversed for an error which could not possibly have worked any injury to the plaintiff in error. Brohst V. Brock, 10 Wall. 519; Decatur Bank v. St. Louis Bank, 21 Wall. 294. But we are of opinion that the ground up- on which this assignment of error is based is not tenable, which is that the recovery must be limited to the amount paid by the insurance company to the defendants in er- ror, and that the burden is on the insurance company to show how much it paid. Al- though the suit is brought for the use of the insurer, and it is the sole party beneficially interested, yet its rights are to be worked out through the cause of action which the insured has against the common carrier. The legal title is in the insured, and the carrier is bound to respond for all the damages sus- tained by the breach of his contract. If only part of the loss has been paid by the insurer, the insured is entitled to the residue. How the money recovered is to be divided between the insured and the insurer is a question which interests them alone, and In which the common carrier is not concerned. The payment of a total loss by the insurer works an equitable assignment to him of the property, and all the remedies which the 274 CAKRIERS OF FEEiaHT. jusured had against the carrier for the re- covery of its value. Mason v. Sainsbury, 3 Doug. 61; Yates v. Whyte, 4 Bing. N. C. 272; Clark v. Hundred of Blything, 2 Barn. & C. 254; Insurance Co. v. Tyler, 16 Wend. 385; Insurance Co. v. Storrow, 5 Paige, 285. This rule is so strictly applied that when two ships helonging to the same owner came into collision with each other, and one of them sank and became a total loss, it was held that the insurers of the lost ship did not, upon their payment of a total loss, become entitled to make any claim for the loss against the insured as the owner of the ship in fault in the collision, for their right exist- ed only through the owner of the ship insured, and not independently of him, and as he could not have sued himself they could have no remedy against him. Simpson v. Thomp- son, 3 App. Cas. 279. See, also. Insurance Co. V. Sherlock, 25 Ohio St. 50. In Gales v. Hailman, 11 Pa. St. 515, it was held that a shipper who has received from the insurer the part of the loss insured against, might sue the carrier on the con- tract of bailment, not only in his own right for the unpaid balance due himself, but as trustee for what has been paid by the insurer in case of the carrier, and upon the trial of such a case the court wiU restrain the car- rier from setting up the insurer's payment of his part of the loss as partial satisfaction. Insurers of a ship which has been run down and sunk by the fault of another ship, are, upon their payment of a total loss, sub- rogated to the right of the Insured to recover therefor against the owners of the latter ves- sel, and if their policy was a valued one, their payment of this value will give them the whole spes recuperandi, and the right to the whole damages, though the Insured ves- sel was, in fact, worth a larger sum than the valuation named in the policy. Associa- tion V. Armstrong, L. R. 5 Q. B. 244. See, also, Clark v. Wilson, 103 Mass. 227. The , authorities above cited which relate to marine policies apply, as well as the oth- er cases cited, to the question in hand, for in Hall V. Railroad Co., 13 Wall. 367, it was held that "there is no reason for the subroga- tion of insurers by marine policies to the rights of the assured against a carrier by sea which does not exist in support of a like sub- rogation in case of an insurance against fire on land." We are of opinion, therefore, that the re- covery in this cEse might properly have been, as it was, for the entire loss sustained by the nominal plaintiffs, without regard to the amount of insurance paid. The only effect of the provision of section 2891, Code of Al- abama, is to make the party for whose use the suit is brought dominus litis, and to give it the same rights as if it were the assignee of the cause of action. Its recovery is on the nominal plaintiff's cause of action. But as there is no formal assignment, and the suit is in the name of the nominal plaintiff, the party beneficially interested is only bound to establish the cause of action, without proof of his equitable right to the recovery. It follows from these views that the com- plaint was sufficient for the case as pre- sented by the evidence, and that the evi- dence tended to sustain the case stated In the complaint. The next ground for reversal argued by the plaintiff in error is that the circuit court erred in sustaining the demurrer to the sec- ond plea. It has already been stated that, under the Code of Alabama where a suit is brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party to the record. In view of this provi- sion of the statute, in a suit brought by one person for the use of another, a plea of pay- ment which does not allege a payment to the beneficial plaintiff, or a payment to the per- son holding the legal title, before the person holding the beneficial interest acquired his right, is clearly bad. The plea which was adjudged insufllcient makes neither of these averments, and was therefore bad. The ob- ject of the plea seems to have been to raise the question whether the payment by the in- surer to the insured, for property lost while In the possession of a common carrier, dis- charged the liability of the common carrier. If the plea was based on any such theory, the views we have expressed show that it did not present a bar to the present action. The last assignment of error which we shall notice is based on the charge of the court, to the effect that "thi measure of damages would be the value of the cotton in New Or- leans, where it was to have been delivered, together with Interest on said sum at 8 per cent, per annum from the time when the cotton ought to have been delivered." The error alleged is that the rate of interest should have been placed at 5 per cent., which is the legal rate in Louisiana, where the con- tract was to be performed, and not at 8 per cent., which was the legal rate in Alabama, where the contract was made. Conceding that the charge in respect to the rate of interest was erroneous, the judg- ment should not be reversed on account of the error. The charge contained at least two propositions: First, that the measure of dam- ages was the value of the cotton In New Or- leans, with interest from the time when the cotton should have been delivered; second, that the rate of interest should be 8 per cent. It is not disputed that the first proposition was correct. But the exception to the charge was general. It was therefore ineffectual. It should have pointed out to the court the precise part of the charge that was objected to. "The rule is that the matter of excep- tion shall be so brought to the attention of the court, before the retirelnent of the jury to make up their verdict, as to enable the judge to correct any error, if there be any, in his instructions to them." Jacobson v. CABEIEKS OF FREIGHT. 275 State, 55 Ala. 151. "When an exception is reserved to a charge, which contains two or more distinct or separable propositions, it is the duty of counsel to direct the attention of the court to the precise point of objection." Railroad Co. v. Jones, 5(5 Ala. 507. So, in Lincoln v. Claflin, 7 Wall. 132, this court said: "It is possible the court erred in its charge upon the subject of damages in di- recting the jury to add interest to the value of the goods. * * * But the error, if it be one, cannot be taken advantage of by the •defendants, for they took no exception to the charge on that ground. The charge is insert- ed at length in the bill. * * * It embraces several distinct propositions, and a general exception cannot avail the party if any one of them is correct." On these authorities we are of opinion that the ground of error under consideration was not well saved by the bill of exceptions. Many other grounds of error have been as- signed, though not argued by counsel for the plaintiff in error. But what we have said covers most of them. The others are not well taken. We find no error in the record. The judgment of the circuit court is there- fore affirmed. 276 CAERIERS OF FREIGHT. Connecting lines. Tlicoiigli sMpnient of liable for freight. Qnestion of fact. UNION FREIGHT R. R. CO. v. WINKLEY et al. (159 Mass. 133, 34 N. E. 91.) Supreme Judicial Court of Massachusetts. Sufeolk. May 19, 1893. Appeal from superior court, Suffolk county. Action by the Union Freight Railroad Com- pany against John N. Winkley and others to recover freight charges. Judgment was or- dered for defendants, arid plalntifE appeals. Affirmed. It appeared from an agreed statement of facts that plaintifC, at the occurrence of the events hereinafter mentioned, and for a long time previous, was a common carrier, having its usual place of business in Boston, and operating a railroad between the sta- tions of the various railroads, including those hereinafter mentioned, which have their terminal points in Boston; that the defend- ants were copartners dealing in ice under tlie name of Winkley & Maddox, having a usual place of business in Boston, and in the year 1890 having part of their stock stored in ice houses on the shore of Smith's pond, in the town of Wolfborough, in the state of New Hampshire; that the defendants sold to N. M. Merrick, of Plympton, in this com- monwealth, in August, 1890, a car load of ice at a price per ton delivered on the cars; that there was a side track (constructed on private lands by parties interested in the ice trade) from a railway operated by the Boston & Maine Railroad, running alongside of the ice houses of the defendants, upon which track cars were pushed up by the Boston & Maine Railroad Company, and left to be loaded; that the defendants' servants loaded the said ice in a car thus left on said side track; that one of the defendants' serv- ants informed the station agent at a station of said railroad company about two miles distant that there was at the ice houses of Winkley & Maddox, at the pond, a car of ice for N. M. Merrick, Plympton, Mass., giv- ing the number of the car, and giving no other instruction or direction; that no other information concerning the destination of the car was at any time given the Boston &. Maine Railroad Company; that said com- pany waybilled the said car to N. M. Mer- rick, Plympton, Mass., via the Old Colony Railroad Company, billed the freight charges to N. M. Merrick, hauled the car to Boston, and delivered it to the Union Freight Rail- road Company to be hauled to the Old Col- ony Railroad Company; that the Union Freight Railroad Company hauled said car from the freight yard of the Boston & Maine Railroad to that of the Old Colony Railroad Company, and delivered it to the latter com- pany, paying to the Boston & Maine Rail- road Company its freight charges, and tak- ing its said bill to N. M. Merrick, so paid and receipted; that the Old Colony Railroad Company paid to said Union Freight Rail- goods sold to consignee. Consignor, frhen road Company the amount of the bill so paid to the Boston & Maine Railroad Company, and its own (the Union Freight Railroad Company's) charges to said N. M. Merrick for its freight; that the Old Colony Rail- road Company billed these charges, plus its own charges for transportation from Boston to Plympton, to said N. M. Merrick, sending to said Merrick the said bills for freight, and delivered the said ice to said Merrick at Plympton. Neither said Merrick nor any one else has paid said freight charges. The defendants thereafter claimed payment for said car of ice from Merrick, but payment has not been made. C. F. Choate, Jr., for appellant. Lund,. Jewell & Welch, for appellees. FIELD, C. J. The plaintifC is the second in a line of three connecting railroads over which the ice was transported, and the freight due to the first two roads has been paid by the last. We assume, without de- ciding it, that the right of the plaintifC ta maintain this action is the same as if it were the first road, and the freight had not been paid. With whom, then, did the Boston & Maine Railroad make the contract for trans- portation, and who promised that company to pay the freight? There was no express con- tract. The defendants, through their servants, might have contracted with the railroad to pay the freight, although, as between them- selves and Merrick, he was bound to pay it, but they made no such contract, in terms. A consignor of merchandise delivered to a railroad for transportation may be the own- er, and act for himself, or may be an agent for tbe owner, and act for him, and this may or may not be known to the railroad com- pany. In the present case the railroad com- pany knew the name and residence of the consignee. From the agreed facts it ap- pears that the title to the ice passed to Mer- rick when it was put on board the car, and that it was transported at his risk. The doctrine of the courts of the United States, seems to be that the property in goods ship- ped is presumably in the consignee, although this presumption may be rebutted by proof. Lawrence v. Minturn, 17 How. 100; Blum V. The Caddo, 1 Woods, 64, Fed. Cas. No. 1,573. In Dicey on Parties to Actions, (pages 87, 88,) the result of the English decisions is stated to be as follows: "The contract for carriage is, in the absence of any express agreement, presumed to be between the car- , rier and the person at whose risk the goods are carried, i. e. the person whose goods they are, and who would suffer if the goods were lost. * * * When, therefore, goods are sent to a person who has purchased them, or are shipped under a bill of lading^ by a person's order, and on his account, the consignee, as being the person at whose risk the goods are, is considered the person witli whom the contract is made. He is liable to CARRIERS OF FREIGHT. 277 pay for the carriage, and is tlie proper per- son to sue the carrier for a breach of con- tract" And, (Id. page 90, note:) "When the consignor acts as agent of the consignee, but contracts in his own najne, it would ap- pear that either the consignor or consignee may sue." Dawes v. Peck, 8 Term R. 330; Domett V. Beckford, 5 Barn. & Adol. 522; Coombs V. Railway Co., 3 Hurl. & N. 1; Sargent v. Mon-is, 3 Barn. & Aid. 277; Dun- lop V. Lambert, 6 Clark & P. 600; Railway Co. V. Bagge, 15 Q. B. Div. 625; Cork Dis- tilleries Co. V. Great Southern & W. Ry. Co., Ii. R. 7 H. L. 269. The cases generally are collected in Hutch. Carr. § 44S et seq.; Id., § 720 et seq. Most of the English cases were reviewed in Blanchard v. Page, S Gray, 281. That was a case of the carriage of goods by sea under a bill of lading, and it was held that the bill of lading was a con- tract between the shipper and the shipown- er, and that although it was shown that the shipper acted as agent of the consignees, who had bought and paid for the goods be- fore shipment, yet he could bring an action In his own name for breach of the contract of carriage, unless he was prohibited by his principal, and it was said that he would be liable for the freight. In Wooster v. Tarr, S Allen, 270, it was decided that under a bill of lading in the usual form the shipper was liable to the carrier for the freight, although the bill contained the usual clause that the goods were to be delivered to the consignees or their assignees, "he or they paying freight for said goods," etc. It was said "to be the settled doctrine that a bill of lading is a written simple contract between a shipper of goods and the shipowner; the latter to carry the goods, and the former to pay the stipulated compensation when the service is performed." Both these cases were upon ex- press contracts. The strongest case for the plaintifC is Finn V. Railroad Co., 102 Mass. 283, which was upon an implied contract. In that case one Clark had ordered shingles of Finn, who shipped them on his own account, under a bill of lading, on board a canal boat, to be delivered to "the Great Western Railroad Company, or their assignees, at Greenbush, N. Y. Consignee to pay freight on the deliv- ery." And the shingles arrived by boat at the freight station of the railroad company at Greenbush, N. Y. The shingles were de- scribed in the bill of lading as marked, "J. S. 0. Extra," or "J. S. C." They were burn- ed, while in the freight house, by an acci- dental fire. They were intended to be trans- ported to Joseph S. Clark, Southampton, Mass. Clark accepted and paid a draft drawn by Finn for the shingles; and, in a suit by Finn against him, Clark pleaded the amount of the draft in set-ofC, and recovered the amount, on the ground that "the omis- sion of the plaintiff [Finn] to forward the goods with proper directions to the con- signee and the place of delivery authorized the defendant [Clark] to treat the alleged sale as one never perfected, and to recover back the money paid upon the draft." Fian V. Clark, 10 Allen, 479, 12 Allen, 522. Finn then brought suit against the railroad com- pany for its failure to forward and deliver the shingles to Clark. It was held that al- though the case of Finn against Clark set- tled the fact that, as between them, the title to the property remained in Finn, yet the railroad company, not being a party to that suit, could not set up the judgment in it "as an estoppel against Finn upon the ques- tion of" delivery. Finn v. Railroad, 102 Mass. 283. At the second trial the plaintiff obtained a verdict, and the facts stated in the exceptions showed "that the title to the property had passed to Clark before the loss occurred, leaving Finn, at most, only right of stoppage in transitu;" and it was in thi.? aspect of the case that the opinion in 112 Mass. 524, was delivered. Th« contention of the plaintiff was that the shingles had been delivered to the railroad company with proper directions for their transportation, and that the defendant had neglected to transport them, whereby they had been burn- ed. In the opinion the court say of the lia- bility of a common carrier that, "prima facie, his contract of service is with the par- ty from whom, directly or indirectly, he re- ceives the goods for carriage; that is, with the consignor. * * * When carrying goods from seller to purchaser, if there is nothing in the relations of the several parties except what arises from the fact that the seller commits the goods to the carrier as the or- dinary and convenient mode of transmission and delivery, in execution of the order or agreement of sale, the employment is by the seller, the contract of service is with him, and actions based upon the contract may, if they must not necessarily, be in the name of the consignor. If, however, the purchaser designates the carrier, making him bis agent to receive and transmit goods, or if sale is complete before delivery to the carrier, and the seller is made the agent of the pur- chaser in respect to the forwarding of them, a different implication would arise, and the contract of service might be held to be with the purchaser." Although this was not a suit to recover freight, the principles on which it was decided are.applicable to such a suit, and the efEect of this and the previous decisions, we think, is that in this common- wealth, when the vendor of goods delivers them to a railroad to be carried to the pur- chaser, although the title passes to the pur- chaser by the delivery to the railroad compa- ny, and the name and address of the con- signee, who is the purchaser, is known to the company, the vendor is presumed to mal^ the contract for transportation with the company on his own behalf, and is held liable to the company for the payment of the freight. This presumption, however, is a dis- putable one, and may be rebutted or dis- 278 CAREIERS or TKEIGHT. proved by evideilce; and if the vendee has ordered the goods to be sent at his risk, and on his account, he also may be held liable as the real principal In the contract. See Byington v. Simpson, 134 Mass. 169. But, whether the presumption be one way or the other, it is a matter of inference from the particular circumstances of the case, and the question which is always to be considered is the understanding of the parties. See Railroad v. Whiteher, 1 Allen, 497. In the present case there was no bill of lading or receipt signed by the railroad company, and accepted by the defendants. There was a waybill but it does not appear that the names of the defendants were in it. The freight charges were made in every instance to Merrick, the consignee, and the bills for freight were sent to him. These facts, and perhaps some others stated in the agreed facts, afford some evidence that the railroad company understood that Merrick was to pay the freight to the company. Upon an agreed statement of facts this court cannot draw inferences of fact, unless they are nec- essary inferences. Railroad v. Wilder, 137 Mass. 536. The agreed facts in this case, we think, contain some evidence that the un- derstanding of all the parties was that Mer- rick should pay the freight to the railroad company; and we cannot hold, as matter of law, that the defendants made a contract on their own behalf to pay the freight. Judg- ment aflBrmed. CABRIERS OF FKKIGHT. 279 Comneoting lines. TIiroiLgh bill of lading. Delivery to connecting carrier. Special agreements. Contracts of Inter-State carriage not to be construed by State lanr. MYRICK V. MICHIGAN CENTRAL R. R. CO. (107 U. S. 102, 1 Sup. Ct. 425.) Supreme Court of the United States. Jan. 8, 1883. In error to the circuit court of the United States for the Northern district of Illinois. This is an action for breach of two alleged contracts of the Michigan Central Railroad Company with the plaintiff, Paris Myrick, each to carry for him 202 head of cattle from Chicago to Philadelphia, and there deliver them to his order. It arises oaitof these facts: Myrick was in. 1877 engaged, at Chicago, in the business of buying cattle, sometimes on his own account and sometimes for others, and forwarding them by railway to Philadel- phia. The company is a corporation created by the state of Michigan, and its line extends from Chicago to Detroit, where it connects with Jhe Great Western Railroad, which, by its connections, leads to Philadelphia. In No- vember, 1877, Myrick purchased two lots of cattle, each consisting of 202 head, and ship- ped them over the road of the company. One of the purchases and shipments was made on the seventh and the other on the fourteenth of the month. It will suffice to give the par- ticulars of the first of these transactions, as they were identical in all respects, except in the amount of the draft negotiated and the weight of the cattle. On the shipment of the cattle Mynck took from the company a re- ceipt, as follows: "Michigan Central Railroad Company, "Chicago Station, November 7, 1877. "Received from Paris Myrick, in apparent good order, consigned order Paris Myrick, (no- tify J. and W. Blaker, Philadelphia, Pa.:) Articles. Two hundred and two (202) cattle.. WeiRlit or Measure. "Advance charges, $12. Marked and de- scribed as above (contents and value other- wise imknown) for transportation by the Michigan Central Railroad Company to the warehouse at . "Wm. Geagan, Agent." On the margin of the receipt was the fol- lowing: "This company will not hold itself respon- sible for the accuracy of these weights as be- tween buyer and seller, the approximate weight having been ascertained by track- scales, which is sufficiently accurate for freighting purposes, but may not be strictly correct as between buyer and seller. This receipt can be exchanged for a through bill of lading. "Notice.— See rules of transportation on the back hereof. Use separate receipts for each consignment." On the back of the receipt the rules were printed, one of which, the eleventh, was as follows: "Goods or property consigned to any place off the company's line of road, or to any point or place beyond the termini, will be sent for- ward by a carrier or freightmau, when there are such, in the usual manner, the company acting, for the purpose of delivery to such carrier, as the agent of the consignor or con- signee, and not as carrier. The company will not be liable or responsible for any loss, dam- age, or injury to the property after the same shall have b^jen sent from any warehouse or station of the company." On the day this receipt was obtained, My- lick drew and delivered to the Commercial National Bank, at Chicago, a draft, of which the following is a copy: "$12,287.57. Chicago, November 7, 1877. "Pay to the order of Geo. L. Otis, cashier, twelve thousand two hiindred and eighty- seven 57-100 dollars, value received, and .charge the same to account of "Paris Myrick. "To J. and W. Blaker, Newtown, Pa." As security for its payment Myrick indorsed the receipt obtained from the railroad com- pany and delivered it, with the draft, to the bank, which thereupon gave him the money for it. The cattle were carried on the road of the Michigan Central to Detroit, and thence over the road of the Great Western Railroad Company to Buffalo, and thence over the roads of other companies to Philadelphia, the last of which was the road of the North Pennsylvania Railroad Company. They ar- rived in Philadelphia in about four days aft- er their shipment, where, according to the uniform custom in the course of business of the railroad company, they were turned over to the drove-yard company, which was form- ed for the purpose of receiving cattle arriving there, taking care of them, and delivering them to their owners or consignees. This company notified the Blakers of the arrival of the cattle, and delivered them to those par- ties without the production of the caiTier's ■receipt transferred by Myrick to the Commer- cial National Bank. The Blakers paid the ex- pense of the transportation, took possession of the cattle, sold them, and appropriated the proceeds. The lot shipped on the fourteenth of November were delivered in like manner to the Blakers by the drove-yard company without the production of the carrier's receipt, given to the bank, and were in like manner- disposed of. Soon afterwards the Blakers failed, and the two drafts on them, one made upon the shipment of November 7th and the other on the shipment of November 14th, were not paid. Hence the present action for the value of the cattle thus lost to the bank, My- rick suing for its use. It appeared on the trial that Myrick had made jjrevious shipments of cattle fit)m Chi- cago to Philadelphia, and taken similar re- 280 CAKRIERS or FREIGHT. ceipts from the Michigan Central Railroad Company; that the cattle shipped had always been delivered by the Penusylvania Company, at Philadelphia, to the drove-yard company there, and by that company delivered to the Blakers without the production of the car- rier's receipt or any bill of lading; that the Blaliers were dealers in cattle, and had par- ticular pens in the yards assigned to them; that the cattle of the shipments of November 7th and November 14th were, on their arrival, placed by the superintendent of the drove- yards in those pens and were sold by the Blaliers on the following day, and that the carrier's receipt was not called for either by the railroad or the stock-yard company. It also appeared on the trial that Myrick bought the cattle for the Blaliers, and that a person employed by them accompanied the cattle from Chicago until their delivery at the drove- yard at Philadelphia; that the through rate from Chicago to Philadelphia on the cattle was 58 cents per hundred; that notice of this rate was posted in the station of the defend- ant company at Chicago, and that it was not the custom of the railroad company at Phila- delphia to look to the consignee for freight, but collected it from the drove-yard company. The court was requested to give to the jury various instructions, one lof which, though presented under many forms, amounts sub- stantially to this: That as the road of the Michigan Central Railroad Company termi- nates at Detroit, the company was not bound, in the absence of special contract, to trans- port the cattle beyond such termination, and that the receipt of freight for a point beyond and an agreement for a through fare did not of themselves establish such a contract. The court refused to give this instruction, or any embodying the principle which it expresses. On the contrary, it instructed the jury that the receipt, termed "bill of lading," under the circumstances in which it was made, was a through contract, whereby the defendant agreed to transport the cattle named in it from Chicago to Philadelphia, and there de- liver them to the order of Paris Myrick, and to notify the Blakers of their arrival; that this was the undertaking on the part of the defendant company with the plaintiff Myrick, and with any assignee or holder of the con- tract. The facts attending the transaction not being disputed, there could be only one re- sult from this instruction— a recovery by the plaintiff. From the judgment entered there- on the case is brought to this court for re- view. . Geo. F. Edmunds and A. L. Osborn, for plaintiff In error. W. 0. Lamed and John N. Jewett, for defendant in error. FIELD, J. The principal question pre: sented by the instruction requested by the defendant has been elaborately considered and adjudged by this court. It is only nec- essary, therefore, to state the conclusion reached.* A railroad company is a carrier of goods for the public, and as such is bound to car- ry safely whatever goods are intrusted to it for transportation, within the course of its business, to the end of its route, and there deposit them in a suitable place for their owners or consignees. If the road of the company connects with other roads, and goods are received for transportation be- yond the terminatioi of its own line, there is superadded to its duty as a common car- rier that of a forwarder by the connecting line; that is, to deliver safely the goods to such line — the next carrier on the route be- yond. This forwarding duty arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty tlian this. If more is expected from the com- pany receiving the shipment there must be a special agreement for it. This is the doc- trine of this court, although a different rale of liability is adopted in England and in some of the states. As was said in Railroad Co. V. Manufacturing Co.: "It is unfortu- nate for the interests of commerce that there is any diversity of opinion on such a subject, especially in this country, but the rule that holds the carrier only liable to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction." 16 Wall. 324. This doctrine was approved in the subsequent case of Pratt v. Railroad Co., 22 Wall. 123, although the contract there was to carry through the whole route. Such a contract may of course be made with any one of different connecting lines. There is no objection in law to a contract of the kind, with its attendant liabilities. See, al- so. Insurance Co. v. Railroad Co., 104 U. S. 157. The general doctrine, then, as to trans- portation by connecting lines, approved by this court, and also by a majority of the state courts, amomts to this: That each road, confining itself to its common-law lia- bility, is only bound, in the absence of a special contract, to safely carry over its own route and safely to deliver to the next connecting carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the ab- sence of a special agreement to that effect, such liability will not attach, and the agree- ment will not be inferred from doubtful ex- pressions or loose language, but only from clear and satisfactory evidence. Although a railroad company is not a common carrier of live animals in the same' sense that it is a carrier of goods, its responsibilities being in many respects different, yet when it un- dertakes generally to carry such freight it assumes, under similar conditions, the same obligations, so far as the route is concerned over which the freight is to be carried. In the present case the court below held CABUIEKS or PKEIGHT. 281 that by its receipt, construed in the light of the circumstances under which it was given, the Michigan Central Railroad Company as- sumed the responsibility of transporting the «attle over the whole route from Chicago to Philadelphia. It did not submit the re- -ceipt with evidence of the attendant circum- stances to the jury to determine whether such a through contract was made. It ruled that the receipt itself constituted such a ■contract. In this respect it erred. The re- ■ceipt does not, on its face, import any bar- gain to carry the freight through. It does not say that the freight Is to be transported to Philadelphia, or that it was received for transportation the.-e. It only says that it is ■consigned to the order of Paris Myrick, and that the Blakers at Philadelphia are to be notified. And, after the description of the propeitj-. it adds: "Marked and described as above (contents and value otherwise un- known) for transportation by the Michigan Central Raili-oad Company to the ware- house at ," leaving the place blank. This blank may have been intended for the Insertion of some place on the road of the ■company, or at its termination. It can- not be assumed by the court, in the absence of evidence on the point, that it was in- tended for the place of the final destina- tion of the cattle. On the margin of the receipt is the following: "Notice.— See rules ■of transportation on the back hereof." And among the rules is one declaring that goods consigned to any place ofE the com- pany's line, or beyond it. would be sent forward by a carrier or freightman, when there are such, in the usual manner, the ■company acting for that purpose as the agent of the consignor or consignee, and not as carrier; and that the company would not be responsible for any loss, damage, or injury to the property after the same shall have been sent from its warehouse or sta- tion. Though this rule, brought to the knowledge of this shipper, might not limit the liability imposed by a specific through contract, yet it would tend to rebut any in- :ference of such a contract from the receipt of goods marked for a place beyond the road of the company. The doctrine invoked by the plaintifC's ■counsel against the limitation by contract of the common-law responsibility of carri- •ers, has no application. There is, as al- ready stated, no commoa-law responsibility devolving upon any carrier to transport goods over other than its own lines, and the laws of Illinois restricting the right to limit such responsibility do not, therefore, touch the case. Nor was the common-law liability of the defendant corporation en- larged by the fact that a notice of the char- ges for through transportation was posted in the defendant's station-house at Chicago. Such notices are usually found in stations on lines which connect with other lines, and they furnish important information to ship- pers, who naturally desire to know what the charges are for through freight, as well as for those over a single line. It would be unfortunate if this Information could not be given by a public notice in the station of a company without subjecting that company, if freight is taken by it, to responsibility for the manner in which it is carried on inter- mediate and connecting lines to the end of the route. Nor was the liability of the com- pany affected by the fact that the notice on the margin of the receipt stated that the ticket given might be "exchanged for a through biU of lading." It would seem to indicate that the receipt was not deemed of itself to constitute a through contract. The through biU of lading may also have con- tained a limitation as to the extent of the route over which the company would un- dertake to carry the cattle. Besides, if weight is to be given to this notice as char- acterizing the contract made, it must be taken with the i-ule to which it also calls attention, that the company assumed re- sponsibility only for transportation over its own line. It follows from the views ex- pressed that the court below erred in its charge that the ticket or bill of lading was a through contract, whereby the defendant company agreed to transfer the cattle to Philadelphia, and safely deliver them there to the order of Myrick. Our attention has been called to some de- cisions of the supreme court of Illinois which would seem to hold that a railroad company which receives goods to carry, marked for a particular destination, though beyond its own line, is prima facie bound to carry them to that place and deliver them there; and that an agreement to that effect is implied by the reception of goods thus marked. Railroad Co. v. Frankenberg, 54 111. 88; Railroad Co. v. Johnson, 34 111. 389. Assuming that such is the purport of the decisions they are not binding upon us. What constitutes a contract of carriage is not a question of local law upon wJiich the decision of a state court must control. It Is a matter of general law, upon which this court will exercise its own judgment. Chi- cago City V. Robbins, 2 Black, 429; Railroad Co. V. Nat. Bank, 102 U. S. 14; and Hough V. Railway Co., 100 U. S. 213. If the doctrine of the supreme court of Illinois, as to what constitutes a contract of carriage over connecting lines of roads, is sound, it ought to govern, not only in Illi- nois, but in other states; and yet the tri- bunals of other states, and a majority of them, hold the reverse of the Illinois court, and coincide with the views of this coiut. Such is the case in Massachusetts. Nutting V. Railroad Co., 1 Gray, 502; Burroughs v. Railroad Co., 100 Mass. 26. If we are to follow on this subject the ruling of the state courts, we should be obliged to give a dif- ferent interpretation to the same act — the reception of goods marked for a place be- 282 CARKIERS OF FREIGHT. yond the road of the company— in different states, holding it to imply one thing m Illi- nois, and another iu Massachusetts, '"he judgment must be reversed, and the case remanded for a new trial; and It is so ordered. See, in affirmance, Pennsylvania R. R. Co. v. Jones (1894) 155 U. S. 333, 15 Sup. Ct. 136. CARRIERS OF FHEIGHT. 283 Connecting lines. Freight prepaid tbroagh. Iiien of last carrier. Forwarding agent. Perisbalile freight, hilled for qnich delivery. Unreasonable delay. CKOSSAN V. NEW YORK & NEW ENG- LAND R. R. CO. (149 Mass. 196, 21 N. E. 367.) Supreme Judicial Court of Massachusetts. Suffolk. May 10, 1889. Report from superior court, Suffolk coun- ty; John W. Hammond, Judge. Trover by Barney Crossan against the New York & New England Railroad Com- pany. A verdict was directed for defendant, and the case is reported to this court for de- termination. S. J. Thomas and C. P. Sampson, for plaintiff. W. 0. Loring and R. M. Salton- Htall, for defendant. HOLMES, J. This is an action of trover for the conversion of 19 horses. The horses were shipped by the plaintiff on the Pennsyl- vania Railroad, at Philadelphia, for Boston; were delivered by that company to another, at Jersey City; and were carried the last part of the way over the defendant's line. The plaintiff prepaid the freight demanded,' which was $44. But the Pennsylvania Railroad, in making up the total, allowed only $32 for carriage east of .Jersey City, instead of $50, as it should have done by the defendant's tar- iff; so that there were $18 still to be paid, if the defendant was to receive its usual rate. At the time the defendant accepted the goods for carriage it had notice of the contents of the way-bill, from which perhaps a jury might have inferred that a railroad agent, versed in its abbreviations, would have un- derstood that there had been an attempt to prepay the freight. It had not seen the writ- ten contract between the plaintiff and the Pennsylvania Railroad. This contract was shown to the defendant before the refusal of the latter to deliver. It contained the words, "Freight, 44.00, prepaid;" and also a prom- ise by the plaintiff to pay the Pennsylvania Railroad at the rate of 22 cents per hundred pounds, Vhich would make the total $44. On the other hand, it showed that the horses were to be carried to Boston, and did not purport to bind the Pennsylvania Railroad as a carrier for the whole distance, but contemplated de- livery to other carriers, not specitted. We are to take it also that the Pennsylvania Railroad was not the agent of the defendant, as the plaintiff's counsel disclaimed that ground. When the horses arrived at Boston the defendant refused to deliver them, ex- cept upon payment of the amount unpaid, which is the alleged conversion. The question is whether the defendant had a lien for the freight due to it, according to its schedule, and unpaid. The answer is not to be found in the letter of the document, but in general principles of law and considerations of policy. The plaintiff contends that the Pennsylvania Railroad was a special agent, having no ostensible authority greater than that which he actually intended to give it; or, at least, that, if the defendant had notice that he liad prepaid the freight demanded, it had notice that the Pennsylvania Railroad had no authority to give it a lien for any further sum which the defendant might be entitled to demand. This view is not without sanc- tion. Marsh v. Railway Co., 3 McCrary, 2^6.1 But we think that there are weightier considerations in favor of the defendant. Suppose that it had had the facts definitely before it. It would have seen, to be sure, that the plaintiff did not contemplate paying any more money, but it would have seen iilso that he did contemplate and desire that the horses should be carried through to Boston by a continuous and speedy passage. The existence of the latter expectation is con- firmed by the plaintiff's declaration and by his testimony. He was not entitled to have both his expectations made good by the de- fendant. An unforeseen case had arisen, and the defendant was called on by the plain- tiff's forwarding agent to act at once in some way. Potts v. Railroad Co., 131 Mass. 455. The forwarding agent, whatever its obligations to the plaintiff, only consented to be liable personally to the defendant for $32, but required the defendant to forward the goods. The defendant was not bound to carry for less than its full charge, if it had any right to do so. But if the demand to forward was authorized ostensibly or by im- plication, — that is to say, if the carriage would give it a lien, — it was liable to the plaintiff if it refused, except that it might demand prepayment. The plaintiff was not present, and it might take time and cost money to communicate with him. The horses were perishable, and their keep would probably have' cost more than the unpaid freight, if they had been delayed, although we do not now decide whether these last facts make a difference in the law. If the plaintiff had a contract with the Pennsylva- nia Railroad, that company could be made to indemnify the plaintiff in the place where the contract was made. Under such circum- stances, there can be no doubt what course was most for the advantage of the owner, or what directions a prudent owner, if present, would give, and the analogies of the law would imply a corresponding authority in the defendant. Knight v. Railroad Co., 13 R. I. 572, 576; Pierce v. Insurance Co., 14 Allen, 320, 323. If the effect of the plain- tiff's instructions were doubtful, the law would give the defendant the benefit of the interpretation adopted by it in good faith, (Ireland v. Livingston, L. R. 5 H. L. 395, 416,) and would consider the necessity of an immediate decision, (Hawks v. Locke, 13S) Mass. 205, 209, 1 N. E. Rep. 543.) But the defendant does not need the aid of such consid- erations. Taking into account what we have said, and also that the defendant had a right to assume thatthe plaintiff knew thatit wasnot bound by the Pennsylvania Kailroad's con- tract, and therefore knew that a higher rate 1 9 Fed. 873. 284 CAKUIERS or FREIGHT. might be demanded beyond the lines of that Toad than had been paid, we are of opinion that the defendant was justified in giving prepon- derance to the requirement of continuous and speedy carriage, and in assuming that the iiutliority of the Tennsylvania Railroad to of- fer the horses was not conditional upon the prepayment of freight by the plaintiff turn- ing out to be full payment of all that the de- fendant could demand. See Wolf v. Hough, 22 Kan. 659; Wells v. Tlioinas, 27 Mo. 17; Vaughan v. Railroad Co., 13 B. I. 578, 581; Schneider v. Evans, 25 Wis. 241, 250, 261, ■et seq. It is to be observed tliat the principle that no man's property can be taken from him without his consent, express or implied, has not prevented the last of a line of carriers from maintaining its lien, when the first carrier has forwarded tlie goods to a wrong place. Briggs v. Railroad Co., 6 Allen, 246, {distinguishing Robinson v. Baker, 5 Cusli. 137;) Whitney V. Beckford, 105 Mass. 2B7; Patten v. Railway Co., 29 Fed. Rep. 590, {disapproving Fitch v. Newberry, 1 Doug. Mich. 1;) Vaughan v. Railroad Co., 13 R. I. 578. Yet in that case the last carrier might be said to have notice that the forwarding agent's authority was limited to sending the goods to the place directed by the shipper. A subordinate argument was suggested, that the plaintiff was entitled to go to the jury on the allegations of unreasonable de- lay in transportation, and of detention of the horses upon the defendant's cars. But there was no evidence of unreasonable delay by tlie defendant after the horses were received, and the consequences of the detention after arrival are only alleged as matter of aggrava- tion of the alleged wrongful refusal to deliv- er them. As the refusal was rightful, negli- gence in the care of the horses while de- tained, if any there whs, cannot be relied on as a substantive cause of action. It isplain, too, that the case was not tried on the foot- ing of an action for negligence in rightful keeping, and the plaintiff acquiesced in that view of the case, and did not seek to amend. The questions of evidence are not argued by the plaintiff, and are sufliciently answered by the foregoing discussion. Judgment on the ver-dict.- CAKUIERS OF TKEIGHT. 285. Through freight line of associated companies. Partnership. Through contract. BLOCK V. FITCHBURG E. R. CO. (139 Mass. 308, 1 N. E. 348.) Supreme Judicial Court of Massachusetts. May, 1885. Linus M. Child, for plaintlfe. Sohier & Welch, for defend int. MORTON, O. J. The evidence at the trial tended to show that the several defendant corporations formed an association or com- pany, under the name of "The Erie and North Shore Despatch," for the transportation of merchandise betvsreen Boston and Chicago; that the association had an agent in Boston who was authorized to receive goods at Bos- ton for transportation over the line to Chi- cago, and to give bills of lading or contracts for transportation like the one upon which the plaintiff sues; that the plaintiff delivered goods to such agent, and received the bill of lading in suit; and that a part of the goods were lost between Boston and Chicago. By the bill of lading, "The Erie and North Shore Despatch" contracts to carry the goods from Boston by the Fitchburg Railroad, and thence by the Erie & North Shore Despatch to Chi- cago, and then to deliver them to connecting railroad lines to be forwarded to Denver, their destination. The several railroad companies which form the association are not named In the contract. It is a single and indivisible contract, by which the Erie & North Shore Despatch Line agrees to carry the goods to Chicago, the freight to be earned upon the de- livery there to tht connecting line. So far as the question in this case is concerned, it is unlike those cases where a railroad form- ing one link in a line of connecting roads between two points receives goods to be transported over its line and delivered to the connecting road, in which it has been held in this commonwealth that each railroad in the continuous line is liable only for loss or dam- age happening on its own road. Darling v. Railroad Co., 11 Allen, 295; Gass v. Railroad Co., 99 Mass. 220; Burroughs v. Railroad Co., 100 Mass. 26; Aigen v. Railroad, 132 Mass. 423. The defendants formed a company, and in its name made a special contract to carry the plaintiff's goods from Boston to Chicago. They are, so far as the plaintiff" is concerned, partners, and liable jointly and severally for any loss or damage to his goods between Boston and Chicago, unless they are exempt- ed from liability by the terms of the con- tract. Hill Manuf'g Co v. Boston & L. R. Co., 104 Mass. 122. The principal difficulty in this case is as to the true construction of the contract of carriage It contains the pro- vision that in case of loss or damage to the property received, "whereby any legal lia- bility or responsibility shall or may be incur- red, that company shall alone be held an- swerable therefor in whose actual custody the same may be at the time of the happening thereof." It also contains a provision that^ in case of loss or damage of any of the goods "for which either of said companies may be liable, it is agreed that said com- pany shall have the benefit of any insurance effected thereon by the owner." The de- fendants contend that the expression "that company," in the clause above cited, means that railroad company in any part of the continuous line between Boston and Denver, so that, although the plaintiff's loss occurred between Boston and Chicago, that railroad company In whose custody the goods were when lost is alone liable. This is not the necessary, and we do not think it the fair, construction of the defendant's contract. By it the Erie & North Shore Despatch, as a company, undertake to carry the goods to Chicago, and there to deliver them to a con- necting line. The several railroads which constitute this company are not named or re- ferred to in the contract. It is in the same terms as if the Erie & North Shore Despatch had been a single railroad corporation, with a road from Boston to Chicago. In other parts of the contract the expressions "this company" and "said company" are used in connections which clearly show that they re- fer to the defendant company, and not to any railroad company between Boston and Chi- cago. Thus, there is the provision that it is "agreed that the Erie & North Shore Des- patch will not be liable for loss or damage or delays to the above goods on any river or lake;" and "said company will not be liable for any loss" by guerillas or military seizures. So there is the provision that, "in consideration that this company has reduced the price of such transportation below the local rates, the shipper and owner does hereby release the Erie & North Shore Despatch, and the steam- boat and railroad company which may re- ceive said propprty, from liability for break- age," etc. In these clauses the word "com- pany" clearly refers only to the defendant company, and the connecting company or companies between Chicago and Denver. The words "said company" or "said compa- nies," used in the clause as to insurance, and other places, by their natural interpretation refer to companies which have previously been named We cannot see why the words "that company." in the clause we are con- sidering, should receive a different construc- tion from that p,iven to equivalent or similar words in other parts of the contract. The plaintiff was dealing with the defendant company alone for the transportation as far as Chicago. He did not know the parties who composed that company, and entered in- to no separate contract with either of them. He had the right to interpret the words "that company" as meaning the defendant com- pany, and not a railway company nowhere named in his contract. The effect of this in- terpretation is, what seems to have been in the minds of the parties, to release the de- fendant companv from liability after it had 286 CAKIUEHS or FREIGHT. carried the goods to the eud of its route, ac- cording to its contract, and had delivered them to the connecting carrier, and to hold It -liable to the point to which it had assumed and contracted to transport the goods as a ■common carrier. We are of opinion that this is the fair con- struction of thp contract, and therefore that the learned justice who presided at the trial in the superior court erred in directing a ver- dict for the defendants. Exceptions sustain- ed. CARRIERS OF FREIGHT. 287 Delivery to oonnecting carrier. Contract to carry throngh to destination. Accept- ance of bill of lading by agent. Special limitation of liability. Delay by neg- ligence. Notice of claim for damage. JENNINGS et al. v. GRAND TRUNK RY. CO. OF CANADA. (127 N. Y. 438, 28 N. B. 394.) ■Court of Appeals of New York, Second Divi- sion. Oct. 6, 1891. Appeal by defendant from judgment en- tered upon order of the general term of the supreme court in the fifth judicial depart- ment affirming judgment entered on re- port of referee in favor of the plaintiffs. Affirmed. For shipment and transportation to East St. Louis, 111., J. H. Shanley & Co. •caused to be delivered to the defendant, and the latter received, potatoes at the times, places, and in the quantities follow- ing: April 18, 1881, at Prescott, Canada, 401 bushels; April 18, 1881, at Edvi^ards- burgh, Canada, 812 bushels; April 18, 188] at Brockville, Canada, 400 bushels; Apni 20,1881, at Brockville, Canada, 400 bushels; April 26, 1881, at Kingston, Canada, 402 bushels. The potatoes belonged to J. H. Shanley & Co., who were named as con- signees of all the potatoes except those delivered to the defendant at Prescott. They were consigned to the order of the Merchants' Bank of Canada, with direc- tions to advise Shanley & Co., and all the potatoes reached the place of destination except those shipped at Prescott. They <3id not arrive there. The purpose of this action was to recover damages alleged to have been sustained by the negligence of the defonuant in its failure to transport those last mentioned to the place of desti- nation, and for their loss in consequence, and in delaying the delivery at East St. Louis of those which did reach there, by reason whereof the potatoes were injured, and the market price had fallen when they did arrive at that place. The claim of ishanley & Co. against the defendant was assigned to the plaintiffs. The referee found the facts in support of it, and direct- ■ed judgment against the defendant. The defendant's railway is within the domin- ion of Canada, of which it is a corpora- tion. Its most westerly station is Point Edward, hut its practical western termi- nus Is at Ft. Gratiot, In the state of Michi- gan, where connection is made with other railroads extending -west. The plaintiffs gave evidence to the effect, and the referee found, that on February 8, 1881, Shanley ■& Co. wrote a letter to the defendant's agent at Toronto, requiring the lowest rates for shipment of potatoes in car-load lots from Prescott and other stations in that vicinity on its railway to East St. Louis, 111., and certain other places, an.d on the 12th of that month received answer toy letter from the defendant's assistant ■genera! freight agent, saying: "1 will give yoa the following rates on potatoes in full ■car-loads from Prescott, and stations in the vicinity, to * * * East St. Louis, 28 cents. Be good enough to let me know df these rates are accepted before shipping, so that I may advise our agents." That the rates so given were for each 100 pounds. That on or before April 18. 1881, Shanley .&'Co. duly accepted such rates, and noti- fied such assistant general freight agent of such acceptance, who, on brpnor to that day, so advised defendant's local freight asrents at Prescott and stations in that vicinity; and that no notice was given to Shanley & Co. by the defendant, or any of its agents, that the defendant would not assume the duties and liabilities imposed by law upon common carriers in the ship- ment of potatoes and their transportation between the points and for the rates men- tioned. The alleged defense is that the de- fendant was not chargeable with the eon- sequences of delay or negligence in the transportation of the potatoes beyond its own railway line; and that there were certain limitations in the contract of affreightment which relieved it from lia- bility, and certain conditions precedent which the plaintiffs" assignors failed to observe. And to support its defense the defendant put in evidence shipping bills termed therein "shipping notes," similar in form, one of which was as follows: "Grand Trunk Railway Company of Canada. This company will not be re- sponsible for any goods missent, unless they are consigned to a station on their railway. Rates, weights, and quantities entered on receipts are not binding on the company, and will. not be acknowledged. All goods going to or coming from the United States will be subject to customs charges, etc. Prescott, Date, April 18th, 1881 . The Grand Trunk Rail way Company of Canada will please x-eceive the under- mentioned property, in apparent good or- der, addressed to J. H. Shanley &Co. East St. Louis, 111., to be sent by the said com- pany, subject to the terms and conditions stated above and on the other side, and which are agreed to by this shipping note delivered to said company as the basis up- on which their receipt is to be given for said property. No. of Packages and Marks. Weight, lbs. Species of Goods. Paid on. 24,000 1 car Potatoes, said to contain 400 bushels, in bulk, O. Risk. C. T. Car 8,679. Via Chi. & Alton E. B. 19 42 80 58 100 00 "J. E. DcBeule, Consignor. Among the terms and conditions on the other side of this paper were the follow- ing; "General notices and conditions on carriage: (1) It is agreed and understood that the Grand Trunk Railway Co. of Canada will not be responsible for goods of any kind conveyed upon this railway unless receipted for by a duly-authorized agent of thecompany." "(3) Nor will the company be liable for damages occasioned by delays caused by storms, accidents, overpi'essure of freight or unavoidable causes, or by the weather, wet, tire, heat, frost, or delay of perishable articles, or from civil commotion." "(5) And in all cases where herein not otherwise provided the delivery of goods shall be considered 288 CAERIERS OF FREIGHT. complete, and tlie responsibility of the company shall terminate, when the goods are placed in the company's sheds or warehouse, (if there be conveniences for receiving the same,) at their final destina- tion, or when thegoods shall have arrived at the place to be reached on said com- pany's railway. (6) Lumber, coals, briclis, and all other goods carried by thecar-load shall be taken as delivered, and the com- pany's responsibility in respect thereof shall cease, upon thecar In which they are carried being detached from the train at the station on the company's line to which it Is consigned, or at the station wherein the usual coui-se of business it leaves the company's line." "(10) That all goods addressed to consignees at points beyond the places at which the company has stations, and respecting which no di- rection to the contrary shall have been received at thosestations, will beforward- ed to their destination by puhliccarrier or otherwise, as opportunity may offer, with- out any claim for delay against the com- pany for want of opportunity to forward them ; or they may, at the discretion of the company, be suffered to remain on the company's premises, or be placed in shed or warehouse, (if there be such conven- ience for receiving same,) pending com- munication with consignies, at the risk of the owners as to damage thereto from any cause whatsoever. But the delivery of the goods by the company will he consid- ered complete, and all responsibility of said company shall cease, when snch other car- riers shall have received notice that said company is prepared to deliver to them the said goods for further conveyance; and it is expressly declared and agreed that the said Grand Trunk Railway (Com- pany shall not be responsible for any loss, misdelivery, damage, or detention that may happen to goods so sent by them, if such loss, misdelivery, damage, or deten- tion occur after the said goods arrive at said stations or places on their line near- est to the points or places which they are consigned to, or beyond their said limits. (11) That all property contracted for at a through rate, or otherwise, to or from places beyond the line of the Grand Trunk Railway, if shipped by water, shall, wliiie not on the comi)any's railway, or in their sheds or warehouses, be entirely at their owner's risk. In case of loss or damage to any goods tor which this cojni^any or connecting lines may he liable, It is agreed that the company or line so liable shall have the benefit of any insurance effected by or for account of the owner of said goods, and the company so liable shall be subrogated in sueh rights before any de- mand shall be made on them, (li!) That no claim for damage to, loss of, or deten- tion of, any goods for which this com- pany is accountable, shall be allowed un- less notice in writing, and particulars of the claim for said loss, damage, or deten- tion tire given to station freight agent at or nearest to the place of delivery, within thirty-six hours after the goods in respect to which said claim is made are delivered. (13) Storage will be charged on all freight remaining in thecompany'ssheds or ware- houses over twenty-four hours after its arrival." "(l•^) That the company shall not in any case, or under any circumstan- ces, be liable for loss of market, nor will they be liablefor claims arising from delay or detention of any train in the course of its journey, or at any of the stations oa the way, or in starting; and the company do not undertake to load or send goods upon or by any particular train, it there be an insufficient number of cars at any station, or the cars cannot V)e conven- iently used for the purpose, or if from any cause cars loaded at a station are unable to be sent on by trains passing or starting from such station. " These ship- ping bills were signed by or in the name of tlie person who delivered the potatoes to the defendant for Shanley & Co., and the defendant's staticm agents gave receipts to such persons. None of the receipts were produced in evidence, nor were their contents proved. Further facts appear in the opinion. -£'. C-.iipra;?-ue, for appellant. Martin W. Cooke, for respondents. BRADLEY, J., (after stating the facts.) The place to which the potatoes were con- signed was beyond the line of the defend- ant's railway; and, unless it had. con- tracted to transport them further than the western terminus of its road, the du- ty of the defendant required it only to diligently convey the potatoes to that Ijoint, and there deliver them to the con- necting carrier. Rawson v. Holland, 59 N. Y. 611. But the conclusion of the ref- eree was that the defendant undertook to deliver the potatoes at East St. Louis. If that proposition is supported, the de- fendant was responsible for the conse- quences of any default or want of rea- sonable diligence in that respect on any part of the route, iinless relieved by some limitation of liability in the contract of affreiglitment. Root v. Railroad ('o., 45 N. Y. 524; Coudict v. Railway Co., 51 N. y. 500, 4 Lans. 106. The communications had between Shanley & Co., the plaintiffs' assignors, and the defendant's freight agent on the subject had relation to through rates for transportation of the potatoes for Shanley & Co. from the IJlaces where they were afterwards deliv- ered to and received by the defendant to East St. Louis. The rates for such pur- pose were given and accepted. The de- fendant's station agents at the places of shipment were, by the direction of th» freight agent, advLsed of the rates; and the potatoes were delivered, and in car- load lots shipped, consigned to such place of destination. They belonged to Shan- ley & Co., of which the station agents were also informed at the time of the de- livery for shipment. The defendant's rail- way then had the means of connection at Bt. Gratiot and Detroit with trunk lines of railroad running westerly to Chicago and St. Louis. Although the question whether what had occurred between Shan- le.y & Co. and the defendant's agent con- stituted an a.greement for through trans- portation was not free from doubt, the finding was justified that it was such that the unqualified delivery and acceptance of the potatoes may have been treated as in pursuance of a contract to transport them to the place of destination. And, CARKFERS OF FREIGHT. 289 in view of the facts and circumstances furnisbed by the evidence, the conclusion of the referee was warranted that in such event there was an undertaliing of the defendant to transport the potatoes to that place unless the contract eo repre- sented was modified by scjme further ar- rangement. Quimby v. Vanderbilt, 17 N Y. 306; Railway Co. v. Merriman, 52 111. 123. Upon thatsubject ourattention is called to the shipping bills executed by the per- sons who performed the act of delivering the property, and to the receipts or bills of lading given to thetu by the defend- ant's station agents. As a general rule, the bill of lading given by a carrier to and accepted by the shipper of goods con- tains the contract for carriage, and, in the absence of fraud, imposition, or mis- take, the parties are concluded by its terms as there expressed. Long v. Rail- road Co., 50 N. Y. 76; Kirkland v. Dins- more, 62 N. Y. 171 ; Hill v. Railroad Co., 73 N. Y. 351. In this instance the receipts or bills of lading of all the potatoes which reached the place of destination were there delivered up to the agent of the railroad company from whose custody the property was taken by the consignees. They were not produced at the trial, nor were their contents proved. Theshippiug bills or notes purport to have been re- quests of the persons subscribing them that the defendant receive the property addressed to the consignees, " to be sent by the said company subject to the terms and conditions stated above and on the other side, and which are agreed to by this shipping note delivered to the com- pany as the basis upon which their re- ceipt is to be given for said property." Shanley & Co. had no knowledge of the making of the shipping bills, nor did they authorize the execution of them, unless it came within the power incident to the direction given to deliver the property for shipment. It seems that Shanley & Co. purchased the potatoes, and directed their delivery at the defendant's stations by the persons who delivered or caused tbem to be taken there for such purpose. Ordinarily, a person authorized to de- liver and delivering the property of anoth- er to a common carrier for shipment may by the latter be treated as having author- ity to stipulate for and accept the terms of affreightment, and, as against the car- rier, the owner is bound by tliom. Nelson V. Railroad Co., 48 N. Y. 498; Shelton v. Dispatch T. Co., 59 N. Y. 25«. The limit- ation of the common-law responsibility of the defendant depended upon a special contract to that effect; and the burden of proving such contract was with the de- fendant. To do this the shipping bills taken and retained by it were produced. On the back of each of these were 21 num- bered provisions in fine print. Of these bills it may be assumed that Shanley & Co. had no personal knowledge until they were produced at the trial. They were upon printed blanks kept for the pur- pose by the defendant, and the referee found that they were made "in conformi- ty with the general requirement or cus- tom of the defendant on the receipt of goods for transportation;" and that BALDW. SEL. 0A8. B. Ti. — 19 Shanley & Co. "then knew it to be the universal custom of railroad companies, so far as tlieir experience went, to require shipping' bills to be executed by the ship- per, containing the terms and conditions of shipment, upon the delivery of pota- toes or similar goods to such companies for transportation. " It appears by those bills that the giving of receipts by the de- fendant's agent was then contemplated. And the referee found that the defendant's receipts or bills of lading, containing some terms and conditions for the transporta- tion of the potatoes, were so given, but that no evidence was offered to prove what those terms and conditions were. The contents of those papers constituted in part, at least, the contract, and for the complete proof of it they would seem to have been essential. It evidently was for" that reason that defendant's counsel re- quested the referee to find, which he did, that the contracts executed and delivered by the defendant at the time of the ship- ment of the potatoes had not been proved, and thereupon insisted thatwithoutprov- ing them the plaintiffs were not entitled to recover. There is lio legal presump- tion to the prejudice of the plaintiffs aris- ing out of the fact that receipts or bills of lading were given, so far as relates to the contract. Those papers had, however, been delivered up at the place and time of the receipt of the property, and it may be assumed thai they were accessible to the defendant. The question arises as to the effect of the terms and conditions of the shipping bills upon the rights of the plaintiffs, and to what extent they operate to relieve the defendant from its common-la w duty ; and this may depend somewhat upon the au- thority which the defendant bad the right to treat as possessed by the persons signing those bills at the time they were made. Inasmuch as no conditions were mentioned in connection with the infor- mation given by the freight agent of the through rates for which the defendant would transport the property, it may be that Shanley & Co. supposed that the com- mon-law duty would be assumed by the defendant as such carrier; and that would have been the situation if no spe- cial terms bad'been provided for when the property was delivered to the defendant. And, although Shanley & Co. had not un- dertaken to furnish the property for ship- ment, they had the right to a.ssu me, unless advised to the contrary, that when deliv- ered for tliat purpose it was received pur- suant to the arrangement before then made, so far as related to the rates and through transportation; and, consistent- ly onlj' with such previous understanding or agreement, the defendant was permit- ted to treat it as within the authority of the persons who delivered the potatoes to make or accept stipulations or conditions for the reception and cari'iage of the prop- erty b.y it, and beyond that the owners were not necessarily bound by anything contained in the shipping bills, so far as it was dependent merely upon the pre- sumption of authority of the persons ex- ecuting them. Treating, as we do upon the facts found, the defendant's contract as one for transportation of the property 290 CAKEiEES OF FREIGHT. to the place of destination, the provisions and conditions upon the shipping bills, so far as they may be otherwise construed, are not applicable to the shipments in question. Riley v. Railroad Co., 34 Hun, 97; Babcoclt v. Railway Co., 49 N. Y. 491; Condict V. Railway Co., 54 N. Y. 500. The conclusion was permitted that not only did Shanley & Co. have no knowledge of the shipping bills, but that the receipts or bills of lading did not come to them until the potatoes were shipped and had gone forward. They were therefore not neces- sarily charged with any of the terms and conditions (whatever they were) of the bills of lading other than such as the de- fendant was at liberty to treat as within the authority of the persons receiving fliem to accept in behalf of the owners of the property. Coffin v. Railroad Co., 64 Barb. 379, .56 N. Y. 632; Bostwick v. Rail- road Co., 45 N. Y. 712; Germania Fire Ins. Co. V. Memphis & C. R. Co., 72 N. Y. 90; Guillaume v. Transportation Co., 100 N. Y.491. 3N.E.Rep.489; Swift v.Hteam-Ship Co., 106 N. Y. 206, 12 N. E. Rep. 583; Park v. Presston, 108 N. Y 434,15 N. E. Rep. 705. And to that extent, and that only, the terms and conditions of the shipping bills, so far as reasonable and applicable to through transportation of Ihe property by the defendant, must for that purpose be deemed within the contract. But lim- itation of the eommon-lHw liability of the carrier is dependent upon language in the contract fairly requiring such construc- tion without the aid of implication. The provisions to the effect that the defendant would not be responsible for delay in the transit of the property did not have the effect to relieve it from the consequences of delay occasioned by its negligence, as e.x- emption from liability for that cause was not expressed in the contract. Magnin v. Dinsmore, .56 N. Y. 168; Mynard v. Rail- road Co., 71 N.Y, 180; Nicholas v. Rail- road Co., 89 N.Y. 370. There was evidence upon the subject, and by it was supported the finding of the referee, that the loss suffered and the damages eusrained by the plaintiffs' assignors were caused by the defendant's negligence in transporting the potatoes. Among the terms and conditions on the back of the shipping bills was one num- bered 12, which prnviaed "that no claim for damaaes to, loss of, or detention of any goods for which this company is ac- countable, shall be allowed unless notice in writing and particulars of the claim for said loss, damage, or detention are given to station freight agent at or nearest to the place of delivery within 36 liours after the goods in respect to which said claim is made are delivered." No such notice was given. The referee refused to give effect to it upon the request of the defend- ant's counsel, and exception was taken. The view of the referee was that this pro- vision was not applicable to shipments beyond the terminus of the defendant's railway. The place of delivery was East St. Louis. And the same reason for the requirement of the notice when the place of delivery by the defendant is beyond its own line of road e.xists for it as when such place is upon its railway. The purpose of the notice evidently was to enable the carrier to investigate the nature, cause, and extent of tlie injury or damages claimed, with a view to the means of the protection which such opportunity may afford. It is the accountability of the de- fendant for damages that renders the no- tice essential, and by the terms of the clause in question no other condition is required. It is true that other clauses are to the effect that the defendant should not be responsible beyond its own railway for goods passing over it, and from it on- to other roads, but it is contemplated that its cars containing goods might go for- ward on connecting railroads to the place of destination. It is not seen how that fact can qualify or limit the purpose of the notice. The delivery in view is to the con- signee. This can .be done only at the place to which the goods are consigned. Before delivery there, he may not be sup- posed to have either the opportunity or means of giving the notice. It is legitimate for a common carrier, by contract with the shipper, to provide for a reasonable time within wrliich notice of claim for loss or damage shall be given as a condition of liability, and the manner of giving it. Express Co. v. Caldwell, 21 Wall. 264; Express Co. v. Hunnicutt, 54 Miss. 566; Lewis v. Railway Co., 5 Hurl. & N. 867. In those cases the notices pro- vided for were held to bereasonable. And that question is an open one for considera- tion. Westcott V. Fargo, 61 N. Y. 542, 5.")1 ; Express Co. v. Reagan, 29 Ind. 21. In this present case each car contained 400 bush- els and upwards of potatoes. The time in which the condition required notice to be given mignt not include more than 12 business hours to ascertain the requisite particulars of the claim for the purpose of the notice. It is easy to see that the specified time of 36 hours would be inade- quate to the necessity that might exist in a case like the one under consideration. The conclusion was permitted that, in view of the character and extent of the property, and the nature of the claim for damages which might and did arise, the time specified within which to give notice, with particulars, was quite unreasonable; and therefore, and for that reason, the condition in that respect was inapplicable to the shipments in question, and the fail- ure to give such notice was no bar to the remedy. This view renders it unnecessary, in the consideration of the effect of such condition, to refer further to the circum- stances under which the shipping bills were made, in view of the fact that it does not appear that the condition was in the bill of lading. No other question seems to re- quire the expression of consideration. The judgment should be affirmed. All concur, Pollett, C. J., in result. CARRIERS OP FREIGHT. 291 Delay in delivery. Vis major. Strike of employees, abandoning service cease to be servants. GEISMER V. LAKE SHORE & MICHIGAN SOUTHERN R. R. CO. (102 N. Y. 563, 7 N. E. 828.) Court of Appeals of New York. June 22, 1886. Appeal from the judgment of the general term, Fifth department, in favor of plaintiff, and from an order denying a motion for a new trial. Upon the trial of this action .there was evi- dence proving, 01- tending to prove, these facts: On the twenty-first day of July, 1877, the plaintiff delivered to the defendant, at To- ledo, in the state of Ohio, a large number of cattle and hogs, to be transported, within a reasonable time, over its railroad, to Buffalo, in this state, there to be delivered to him. The usual and ordinary time for the trans- portation of such freight between the two places named was about 25 hours. The plaintiff's cattle and hogs were started on a train of defendant's cars for their destina- tion, and were carried with reasonable dis- patch, and without delay, so far as Collin- wood, in the state of Ohio, where they ar- rived on the twenty-second day of July. ColUnwood was a place where it was usual and customary for the defendant to stop all its stock trains for the purpose of changing engines, engineers, firemen, and crews, em- ployed on such trains; and the train on which plaintiff's stock was shipped, stopped there for the purpose of making such usual changes. When plaintiff's stock arrived there, the de- fendant was willing and desirous to proceed and continue the carrying of the stock to Buffalo, and had all the necessary cars, loco- motives, and employes to make up_ and man- age the train; but it was prevented from proceeding immediately, and accomplishing in the usual time the carriage of the stock to its destination, in consequence of a portion of its employSs striking, and refusing to run the train, or to permit others so to do. A few weeks prior to the arrival of the plain- tiff's stock at Collinwood, the defendant made an order reducing the pay of its em- ployes engaged on its trains, auU at their stations and shops, 10 per cent., and by rea- son of such reduction many of the employes refused to work on the defendant's trains, or to permit others to work who were willing to; and many of the firemen and brakemen who had been in the defendant's employ took forcible possession of some of the de- fendant's engines, and some of the fixtures of the engines, and detached engine hose, let the water out of the engine boilers, un- coupled cars, carried away and hid some coupling pins and links, placed the engines in the round-house, and barricaded the same^ The persons who took such forcible posses- sion of the property of the defendant were a great number,— over 200 persons,— the greater portion of whom were firemen and brakemen who had been in the employ of Acts of violence. Employees the defendant up to the time of the strike on the twenty-second day of July, and were the controlling element of the force which pre- vented the moving of defendant's trains at Collinwood. Such persons boldly and defi- antly refused to obey any of the orders of the defendant's officers, and refused to per- mit any of the defendant's trains to be mov- ed, and threatened persons who should at- tempt to move any of the trains or cars un- til the demands of the strikers should first be complied with. The officers of the de- fendant made various attempts to move trains from Collinwood, and placed on the trains employgs who were willing to work and operate the same; but they were pre- vented from moving the trains by threats, and were compelled to desist from all at- tempts to move them from Collinwood. During all the time from the day the stock arrived at Collinwood until it was finally re- shipped, the officers of the defendant exerted themselves with great diligence to move the trains, and to induce and pei-suade those who up to that time had been in the employ of the defendant to return to their places on the trains, and to permit the defendant to have the use and control of its property, the railroad, and its fixtures; but they openly declared and announced that they would do so only upon the condition that the order of the defendant reducing the wages of the em- ployes should be annulled, and the wages restored as they were before the reduction. They also demanded the annulling of the rule requiring certain qualifications of en- gineers, and the removal of the general mas- ter mechanic, and that no one should be discharged for having taken part in the riot. And the strikers would have disbanded, and the late employes of the defendant would have promptly resumed their employment with the defendant, and would have ceased all force and violence to the defendant, its officers and employes, and would have al- lowed and restored to the defendant the full and complete control of all its property and its railroad, had their demands been acced- ed to; but the defendant refused to accede to the demands. There was a sufficient num- ber of other competent workmen willing and ready to take the places of the strikers at such reduced wages, who could at any time have been so employed, and who would have moved defendant's train, except for the vio- lent opposition of the strikers. After the strike had continued for a period of 11 days it ceased, and all the late employes of the defendant who were engaged in the strike resumed work on the defendant's cars, and the defendant was restored to the posses- sion of all its property and railroad and fix- tures so taken possession of by the strikers; but the wages were not restored, nor other concessions made by the defendant. If it had not been for those who had been in the employ of the defendant up to the time 292 CARRIERS OF FREIGHT. of the commencement of the strike, the de- .fendant could have overcome the resistance, and transported plaintiff's stock in due and ordinary time. As soon as the strike ceased, the defendant transported the plaintiff's stock to Buffalo, and there delivered it to the plaintiff, who took possession of it. The plaintiff suffered great damage from the de- lay, to recover which this action was com- menced. The trial judge, among other things, char- ged the jury "that if the strike had its ori- gin in the minds of the defendant's em- ployes, that it begun with them, and ter- minated when they were ready to end it, and that strangers — outside parties — joined them through sympathy or other cause, the defend- ant is not exempt, and the plaintiff may re- cover damages;" "that whether the delay in bringing forward this train arose because the defendant's engineers, brakemen, and firemen were on a strike, declining to work, and the company had not men to carry on its business, or that they would not do it, or suffer others to do it, even though they were active in their resistance, although they committed violence, if they were the servants or employes of the defendant, nev- ertheless it is Imputable to the defendant in this case;" "that if the defendant's em- ployes were willing to carry on the business, and other men, which have been mentioned, sought to prevent those who were willing to work from carrying on its business, and con- tinuing their labor, and that It was effective and sufficient to prevent those who were willing from going into the employ of the company, and this combination was strong and powerful,^strong in its moral position, strong in its physical power to overmaster and control the situation, and prevent the company from bringing out its engines and starting out the trains,— and so extended from Cleveland to Buffalo, embracing Erie, it is no excuse for the delay, because, if the strikers were the defendant's employes, they represented the defendant; they were its servants and agents, and their acts were the acts of the corporation." To all these portions of the charge defend- ant's counsel excepted; and he requested the judge to charge "that, if the jury believe from the evidence that the cattle were de- livered in Buffalo at as early a day as was possible under all the circumstances in the case, they will find for the defendant;" "that if the jury believe from the evidence that on and after the twenty-flrst day of July, 1877, the railroad tracks, depots, and rolling stock of the defendant were taken forcible possession of by a body or bodies of armed men, among whom were some of its em- ployes, and that they continued to hold pos- session thereof by force of arms for several days, by reason of which the delivery of the plaintiff's stock at Buffalo was delayed until August 4, 1877, the plaintiff cannot re- cover;" "that If the jury believe from the evidence that, under the circumstances, the defendant could not have moved the plain- tiff's stock from CoUinwood to Buffalo pre- vious to the time it did without endangering life and property, then that the defendant was justified in delaying the deliveiy of the stock until it was actually delivered;" "that if the cause of the detention of the plain- tiff's stock arose from forcible resistance of the late employes of the defendant, the de- fendant having at all times a suflJcient force of faithful employes to have operated and run the defendant's road had it not been for such forcible resistance, then the plaintiff cannot recover;" "that, if any of the em- ployes of the defendant joined the strikers, they ceased from that time to be employes of the company, and the defendant is not in any way responsible for their acts." The judge declined to charge each of these requests, and the defendant's counsel duly excepted. The jury rendered a verdict for the plaintiff. The defendant appealed to the general term, and, from affirmance there, to this court. D. H. McMillan, for appellant. Lake Shore & M. S. R. Co. Adelbert Moot, for respond- ent, Meyer Greismer. EARL, J. We are of opinion that the learned trial judge fell into error as to rules of law of vital and controlling importance in the disposition of this case. A railroad carrier stands upon the same footing as oth- er carriers, and may excuse delay in the de- livery of goods by accident or misfortune not inevitable or produced by the act of God. AU that can be required of it in any emer- gency is that it shall exercise due care and diligence to guard against delay, and to for- ward the . goods to their destination; and so it has been uniformly decided. Wibert V. Railroad Co., 12 N. Y. 245; Blackstock v. Railroad Co., 20 N. Y. 48. In the absence of special contract, there is no absolute duty resting upon a railroad carrier to deliver the goods intrusted to it within what, under or- dinary circumstances, would be a reasonable time. Not only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so. An incen- diary may burn down a bridge, a mob may tear up the tracks, or disable the rolling stock, or interpose irresistible force or over- powering intimidation, and the only duty resting upon the carrier, not otherwise in fault, is to use reasonable efforts and due diligence to overcome the obstacles thus in- terposed, and to forward the goods to their destination. While the court below conceded this to be the general rule, it did not give the defend- ant the benefit of it because it held that the men engaged in the violent and riotous re- sistance to the defendant were its employes, for whose conduct it was responsible; and in that holding was the fundamental error CARRIEBS or FKEIGHT. 293 committed by it. It is true that these men had been in the employment of the defend- ant. But they left and abandoned that em- ployment. They ceased to be in its service, or in any sense its agents for whose conduct it was responsible. They not only refused to obey its orders, or to render it any service, but they willfully arrayed themselves in pos- itive hostility against it, and intimidated and defeated the efforts of employes who were willing to serve it. They became a mob of vicious law-breakers, to he dealt with by the government, whose duty It was, by the use of adequate force, to restore order, enforce proper respect for private property and pri- vate rights, and obedience to law. If they had burned down bridges, torn up tracks, or gone into passenger cars and assaulted passengers, upon what principle could it be held that, as to such acts, they were the em- ployes of the defendant, for whom it was responsible? If they had sued the defend- ant for wages for the 11 days when they were thus engaged in blocking its business, no one will claim that they could have re- covered. It matters not if it be true that the strike was conceived and organized while the strik- ers were in the employment of the defend- ant. In doing that, they were not in its service, or seeking to promote its interests, or to discharge any duty they owed it, but they were engaged in a matter entirely out- side of their employment, and seeking their own end, and not the interests of the defend- ant. The mischief did not come from the strike,— from the refusal of the employes to ■work,— but from their violent and unlawful conduct after they had abandoned the serv- ice of the defendant. Here, upon the facts which we must as- sume to be true, there was no default on the part of the defendant. It had employes who were ready and willing to manage its train, and carry forward the stock, and thus per- form its contract and discharge its duty; but they were prevented by mob violence, which the defendant could not by reason- able efforts overcome. That under such cir- cumstances the delay was excused, has been held in several cases quite analogous to this, which are entitled to much respect as au- thorities. Railroad Co. v. Hazen, 84 111. 36; Railway Co. v. Hollowell, 65 Ind. 188; Rail- road Co. V. Bennett, 89 Ind. 457; Railroad Co. V. Juntgen, 10 111. App. 295. The cases of Weed v. Railroad Co., 17 N. Y. 362, and Blackstock v. Railroad Co., 1 Bosw. 77, affirmed, 20 N. T. 48, do not sus- tain the plaintiff's contention here. If, in this case, the employes of the defendant had simply refused to discharge their duties or to work, or had suddenly abandoned its. service, offering no violence, and causing no forcible obstruction to its business, those au- thorities could have been cited for the main- tenance of an action upon principles stated in the opinions in those cases. We are therefore of opinion that the judg- ment should be reversed, and a new trial granted; costs to abide the event. AU concur. 294 CAKUIEKS OF FBEIGHX. Iiimitation of liability to agreed valuation. Loss by negligenoe. Reduced freight rate on account of valuation. Liquidated damages. Parol evidence. HART V. PENNSYLVANIA R. R. CO. (112 U. S. 331, 5 Sup. Ct. 151.) Supreme Court of the United States. Nov. 24, 1884. In erro?' to the circuit court of the United States for the Eastern district of Missouri. Melville C. Day and G. M. Stewart, for plaintiff in error. E. W. Pattison and New- ton Crane, for defendant in error. BLATCHFORD, J. Lawrence Hart brought this suit in a state court in Missouri against the Pennsylvania Railroad Company, to re- cover damages from it, as a common carrier, for the breach of a contract to transport, from Jersey City +o St. Louis, five horses and other property. The petition alleges that, by the negligence of the defendant, one of the horses was killed and the others were injured, and the other property was destroyed, and claims damages to the amount of $19,800. After an answer and a reply, the plaintiff removed the suit into the circuit court of the United States for the Eastern district of Missouri, where it was tried by a jury, who found a verdict of §1,200 for the plaintifiE; and, after a judgment accordingI.y, the plaintiff has brought this writ of ertor. The property was transported under a bill of lading issued by the defendant to the plaintlC:', and signed by him, and read- ing as follows: "Bill of Lading. "(Form No. 39, N. .7.) "Limited Liability Live-Stock Contract for United Railroads of New Jersey Division. (No. 206.) "Jersey City Station, P. R. R. , 187~. "Lawrence Hart delivered into safe and suitable cars of the Pennsylvania Railroad Company, numbered M. L. 224, for transpor- tation from Jersey City to St. Louis, Mo., live- stock, of the kind, as follows: one (1) car, five horses, shipper's count; which has been received by said company, for themselves and on behalf of connecting carriers, for trans- portation, upon the following terms and con- ditions, which are admitted and accepted by me as just and reasonable: "First. To pay the freight thereon to said company at the rate of ninety-four (94) cents per one hundred pounds, (company's weight,) and all back freight and charges paid by them, on the condition that the carrier as- sumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding two hundred dollars each; if cattle or cows, not exceeding seventy- five dollars each; if fat hogs or fat calves, not exceeding fifteen dollars each; if sheep, lambs, stock hogs, or stock calves, not ex- ceeding five dollars each; if a chartered car, on the stock and contents in same, twelve hundred dollars for the car-load. But no car- rier shall be liable for the acts of the animals themselves, or to each other, such as biting, kicking, goring, and smothering, nor for loss or damage arising from condition of the an- imals themselves, which risks, being beyond the control of tne company, are hereby as- sumed by the owner, and the carrier released therefrom. "Second. Upon the arrival of the cars or boats containing said stock at point of des- tination, the shipper, owner, or consignee shall forthwith pay said freights and charges, and receive said stock therein, and tmload the same therefrom ; and if, from any cause, he or they shall fail or refuse to pay, receive, or unload, as aforesaid, then said company or other carrier, as the agent of such shipper, owner, or consignee, may thereupon have them put and provided for in some suitable place, at the cost and risk of such shipper, owner, or consignee, and at any time or times thereafter may sell the same, or any number of them, at public or private sale, with or without notice, as said agent may deem nec- essary or expedient, and apply the proceeds arising therefrom, or so much thereof as may be needed, to the payment of such freight and charges, and other necessary and proper costs and expenses. "Third. When necessary for said stock to be transported over the line or lines of any other cari'ier or carriers to the point of destination, delivery of the said stock may be made to such other carrier or carriers for transporta- tion, upon such terms and conditions as the carrier may be willing to accept: provided, that the terms and conditions of this bill of lading shall initre to such carrier or carriers, unless they shall otherwise stipulate; but in no event shall one carrier be liable for the negligence of another. "Fourth. All live-stock transported under this contract shall be subject to a lien, and may be retained and sold for all freight or charges due for transportation on other live- stock or property transported for the same owner, shipper, or consignee. "Fifth. This company's liability is limited to the transportation ot said animals, and shall not begin until they shall be loaded on board the boats or cars of the company. The owner of said animals, or some person ap- pointed by him, shall go with, and take all requisite care of, the said animals during their transportation and delivery, and any omission to comply herewith shall be at the owner's risk. Witness my hand and seal, this twentieth day of October, 1879. "Lawrence Hart, Shipper. [L. S.] "Attest: E. Butter. W. J. Charmers, Com- pany's Agent." At the trial the plaintiff put in evidence the bill of lading, and gave testimony to prove the alleged negligence, and how the loss and injury occurred. He then offered to show that the actual value of the horse killed was $15,- 000; that the other horses were worth from CARIIIEKS OF FREIGHT. 295 ?3,000 to $3,500 each; and that they were rendered comparatively worthless in conse- quence of their injuries. The defendant ob- jected to this testimony, on the ground that it was not competent for the plaintiff to prove any damage or loss in excess of that set out in the bill o2 lading. The court sustained the objection and the plaintiff excepted. It appeared on the trial that the horses were race-horses, and that they and the other prop- erty were all in one car. It was admitted by the defendant that the damages sustained by the plaintiff were equal to the full amount expressed in the bill of lading. The court charged the jury as follows: "It is compe- tent for a shipper, by entering into a written contract, to stipulate the value of his prop- erty, and to limit the amount of his recovery in case it is lost. This is the plain agreement that the recovery shall not exceed the sum of two hundred dollars each for the horses, or twelve hundred dollars for a ear-load. It is admitted here by counsel for the defendant, under this charge, that the plaintiff is entitled to recover a verdict for twelve hundred dol- lars, and also, under the charge of the court, the plaintiff agrees that that is all. It is sim- ply your duty to find a verdict for that amount." The plaintiff excepted to this charge. The errors assigned are that the court erred in refusing to permit the plaintiff to show the actual damages he had sustain- ed, and in so charging the jury as to restrict their verdict to $1,200. It is contended for the plaintiff that the bill of lading does not purport to limit the liabil- ity of the defendant to the amounts stated in it, in the event of loss through the negli- gence of the defendant. But we are of opin- ion that the contract is not susceptible of that construction. The defendant receives the property for transportation on the terms and conditions expressed, which the plaintiff accepts "as just and reasonable." The first paragraph of the contract is that the plaintiff is to pay the rate of freight expressed, "on the condition that the carrier assumes a lia- bility on the stock to the extent of the fol- lowing agreed valuation: If horses or mules, not exceeding two hundred dollars each; * * * if a chartered car, on the stock and contents in same, twelve hundred dollars for the car-load." Then follow, in the fii-st para- graph, these words: "But no carrier shall be liable for the acts of the animals themselves, or to each other, such as biting, kicking, gor- ing, or smothering, nor for loss or damage arising from condition of the animals them- selves, which risks, being beyond the control of the company, are hereby assumed by the owner, and the carrier released therefrom." This statement of the fact that the risks from the acts and condition of the horses are risks beyond the control of the defendant, and are therefore assumed by the plaintiff, shows, if more were needed than the other language of the contract, that the risks and liability as- sumed by the defendant in the remainder of the same paragraph are those not beyond but within the control of the defendant, and therefore apply to loss through the negligence of the defendant. It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evidence to the con- trary, that, as the rate of freight expressed is stated to be on the condition that the de- fendant assumes a liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation. Es- pecially is this so, as the bill of lading is what its heading states it to be, "a limited liability live-stock contract," and Is confined to live- stock. Although the horses, being race-horses, may, aside rrom the bill of lading, have been of greater real value than that specified in it, whatever jpassed between the parties befoi'e the bill of lading was signed, was merged in tlie valuation it fixed; and it is not asserted that the plaintiff named any value, greater or less, otherwise than as he assented to the value named in the bill of lading, by signing it. The presumption is conclusive that if the liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have been charged. The rate of freight is indissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valua- tion expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. The plaintiff cannot claim a higher valuation on the agreed rate of freight. It is further contended by the plaintiff that the defendant was forbidden, by public policy, to fix a limit for its liability for a loss by negligence, at an amount less than the actual loss by such negligence. As a minor proposition, a distinction is sought to be drawn between a case where a shipper, on requirement, states the value of the property, and a rate of freight is fix- ed accordingly, and the present case. It is said that, while in the former case the ship- per may be confined to the value he so fixed, in the event of a loss by negligence, the same rule does not apply to a case where the val- uation inserted in the contract is not a val- uation previously named by the shipper. But we see no sound reason for this distinc- tion. The valuation named was the "agreed valuation," the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and was fixed on condition that such was the valuation, and that the liability should go to that extent and no further. We are, therefore, brought back to the main question. It is the law of this court that a common carrier may, by special contract, limit his common-law liability; but that he cannot stipulate for exemption from the con- sequences of his own negligence or that of 296 CAliBIERS OF FREIGHT. his servants. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; York Co. v. Central R. R., 3 Wall. 107; Railroad Co. V. Loekwood, 17 Wall. 357; Express Co. r. Caldwell, 21 Wall. 264; Railroad Co. v. Pratt, 22 Wall. 123; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174; Railway Co. V. Stevens, 95 U. S. 655. In York Co. v. Central R. R., 3 Wall. 107, a contract was upheld exempting a carrier from liability for loss by fire, the fire not having occurred through any want of due care on his part. The court said that a com- mon carrier may "prescribe regulations to protect himself against imposition and fraud, and fix a rate of charges proportionate to the magnitude of the risks he may have to en- counter." In Railroad Co. v. Loekwood, 17 Wall. 357, the following proiwsitions were laid down by this court: (1) A common car- rier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. (2) It is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption froni' ' responsibility for the negligence of himself or' his servants. (3) These rules apply both to carriers of goods and to carriers of passengers for hire, and with special force to the latter. The basis of the decision was that the exemption was to halve applied to it the test of its just- ness and reasonable character. It was said that the contracts of the carrier "must rest upon their fairness and reasonableness," and that it was just and reasonable that carriers should not be responsible for losses happen- ing by sheer accident, or chargeable for val- uable articles liable to be damaged, unless apprised of their character or value. That case was one of a drover traveling on a stock train on a railroad to look after his cattle, and having a free pass for that pur- pose, who had signed an agreement taking all risk of injury to his cattle and of per- sonal injury to himself, and who was in- jured by the negligence of the railroad company or its servants. In Express Co. v. Caldwell, 21 Wall. 264, this court held that an agreement made by an express company, a common carrier in the habit of carrying small packages, that it should not be held liable for any loss or damage to a package delivered to it, unless claim should be made therefor within 90 days from its delivery to the company, was an agreement which the company could rightfully make. The court said: "It is now the settled law that the re- sponsibility of a common carrier may be lim- ited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reason- able, and not inconsistent with sound public policy." It was held that the stipulation as to the time of making a claim was reasona- ble and intrinsically just, and could not be regarded as a stipulation for exemption from responsibility for negligence, because It did not relieve the carrier from any obligation to exercise diligence, fidelity, and care. On the other hand, in Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, It was held that a stipulation by an express company that It should not be liable for loss by fire could not be reasonably construed as ex- empting it from liability from loss by fire occurring through the negligence of a rail- road company which it had employed as a carrier. To the views announced In these cases we adhere; but there is not in them any adjudication on the particular question now before us. It may, however, be dis- posed of on principles which are well estab- lished, and which do not conflict with any of the rulings of this court. As a general rule, and In the absence of fraud or Imposi- tion, a common carrier is answerable for the loss of a package of goods, though he is Ig- norant of its contents, and though its con- tents are ever so valuable, if he does not make a special acceptance. This is reasona- ble, because he can always guard himself by a special acceptance, or by insisting on be- ing Informed of the nature and value of the articles before receiving them. If the ship- per is guilty of fraud or Imposition, by mis- representing the nature or value of the ar- ticles, he destroys his claim to Indemnity, because he has attempted to deprive the car- rier of the right to be compensated in propor- ■ tion to the value of the articles and the con- sequent risk assumed, and what he has done has tended to lessen the vigilance the car- rier would otherwise have bestowed. 2 Kent, Comm. 603, and cases cited; Relf v. Rapp, 3 Watts & S. 21; Dunlap v. Steamboat Co., 98 Mass. 371; Railroad Co. v. Fraloff, 100 U. S. 24. This qualification of the liability of the carrier is reasonable, and is as Im- portant as the rule which It qualifies. There Is no justice In allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claim- ed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight and secure the carriage, if there is no loss; and the effect of disregarding the agreement, after a loss, is to expose the car- rier to a greater .risk than the parties in- tended he should assume. The agreement as to value, in this case, stands as if the car- rier had asked the value of the horses, and had been told by the plaintiff the sum in- serted In the contract. The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond In that value for negligence. The CAUKIEUS OF FREIGHT. 29T compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value for the purposes of the con- tract of transportation between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unrea- sonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in con- flict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss. This principle is not a new one. In Gibbon v. Paynton, 4 Burrows, 2298, the sum of £100 was hidden in some hay in an old nail-bag and sent by a coach and lost. The plaintiff knew of a notice by the pro- prietor that he would not be answerable for money unless he knew what it was, but did not apprise the proprietor that there was money in the bag. The defense was upheld, Lord Mansfield saying: "A common carrier, in respect of the premium he is to receive, runs the risk of the goods and must make good the loss, though it happen without any fault in him, the reward making him answer- able for their safe delivery. His warranty and insurance is in respect of the reward he is to receive, and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance he will take greater care, use more caution, and be at the expense of more guards or other methods of security, and therefore he ought, in reason and justice, to have a greater reward." To the same effect is Batson v. Donovan, 4 Bam. & Aid. 21. The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated, in advance. In the pres- ent case, the plaintiff accepted the valuation as "just and reasonable." The bill of lading did not contain a valuation of all animals at a fixed sum for each, but a graduated valuation according to the nature of the animal. It does not appear that an unrea- sonable price would have been charged for a higher valuation. The decisions in this country are at variance. The rule which we regard as the proper one in the case at bar is supported in Newburger v. Howard, 6 Phila. 174; Squire v. New York Cent. R. Co., 98 Mass. 239; Hopkins v. Westcott, 6 Blatchf. 64, Fed. Cas. No. 6,692; Belger v. Dinsmore, 51 N. Y. 166; Oppenheimer v. Express Co., 69 III. 62; Magnin v. Dinsmore, 56 N. y. 168, 62 N. Y. 35, and 70 N. Y. 410; Earnest v. Express Co., 1 Woods, 573, Fed. Case. No. 4,248; Elkins v. Transportation Co., *81 Pa. St. 315; Kailroad Co. v. Henlein, 52 Ala. 606, 56 Ala. 368; Muser v. Holland, 17 Blatchf. 412, 1 Fed. 382; Harvey v. Rail- road Co., 74 Mo. 538; and Graves v. Rail- way Co., 137 Mass. 33. The contrary rule is. sustained in Express Co. v. Moon, 39 Miss.. 822; The City of Norwich, 4 Ben. 271, Fed.. Cas. No. 2,761; U. S. Exp. Co. v. Backman,. 28 Ohio St. 144; Black v. Transportation. Co., 55 Wis. 319, 13 N. W. 244; Railroad Co. V. Abels, 60 Miss. 1017; Railroad Co. V. Simpson, 30 Kan. 645, 2 Pac. 821; and Moulton V. Railroad Co., 31 Minn. 85, 16 N. W. 497. We have given consideration to the views taken in these latter cases, but are unable to concur in their conclusions. Applying to the case in hand the proper test to be applied to every limitation of the com- mon-law liability of a carrier— its just and reasonable character — we have reached the result indicated. In Great Britain, a statute directs this test to be applied by the courts. The same rule is the proper one to be ap- plied in this country, in the absence of any statute. As relating to the question of the exemp- tion of a carrier from liability beyond a de- clared value, reference may be made to sec- tion 4281 of the Revised Statutes of the- United States, (a re-enactment of section (i\) of the act of Febi-uary 28, 1871, c. 100; 16 St. 458,) which provides that if any shipper- of certain enumerated articles, which are generally articles of large value in small bulk, "shall lade the same, as freight or bag- gage, on any vessel, without, at the time- of such lading, giving to the master, clerk, agent, or owner of such vessel receiving the same a written notice of the true character and value thereof, and having the same en- tered on the bill of lading therefor, the mas- ter and owner of such vessel shall not b»- liable as carriers thereof in any form or manner, nor shall any such master or owner- be liable for any such goods beyond the value and according to the character thereof so notified and entered." The principle of this statute is in harmony with the decision at which we have arrived. The plaintiff did not, in the course of the trial, or by any request to instruct the jui-y, or by any exception to the charge, raise the point that he did not fully understand, the terms of the bill of lading, or that he was induced to sign it by any fraud or- under any misapprehension. On the con- trary, he offered and read in evidence the bill of lading as evidence of the contract on which he sued. The distinct ground Of our- decision in the case at bar is that, where a contract of the kind, signed by the shipper, is fairly made, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier as- sumes liability only to the extent of thvj agreed valuation, even in case of loss or damage by the negligence of the carrier, the- contract will be upheld as a proper and law- ful mode of securing a due proportion be- tween the amount for which the carrier may be responsible and the freight he receives,. 298 CARKIEES OF FREIGHT. and of protecting himself against extrava- gant and fanciful valuations. Squire v. Uaili-oad Co., 98 Mass. 239, 245, and cases Uiere cited. There was no error in excluding the evi- dence offered, or in the charge to the jury, and the judgment of the circuit court is af- firmed. CARRIERS OF FREIGHT. 299 Special contract. Agreed valnation of goods. Ziive stock. Pleading. Variance. Inability for negligence, excluded as to certain matters. Common-lair stand- ard of dnty. Cheap rate agreed on for a low class of accommodation. Spe- cial horse car. Notice of defect in car. Agent's authority to speak for ship- per. Notice of company's rules, posted under Inter-State Commerce Act. Fright of animals. Waybill. Construction of bill of lading. COUPLAND T. HOUSATONIC R. R. CO. (61 Conn. 531, 23 Atl. 870.) Supreme Court of Errors of Connecticut. Feb. 29, 1892. Appeal from superior court. New Haven counts'. Action by Ctiarles Coupland against tlie Housatonic Railroad Company. Judg- ment for plaintiff. Defendant appeals. Reversed. S. E. Baldwin, for appellant. J. W. Ailing, for appellee. SEYMOUR, J. Itappeaisfrom tlierecord in this case that the answer to the com- plaint contained two defenses, to the sec- ond of which a demurrer was entered. The demurrer was sustained upon grounds so entirely peculiar to the par- ticular case, and of no general applicabili- ty, that we need only say for the informa- tion of the parties that in our judgment the second defense contained nothing material not already sufficiently averred in the first defense; and that the defend- ant suffered nothing in consequence of the action of the court sustaining the demur- rsr. The complaint did not allege that the injury was occasioned by chafing or collision; on the contrary, it alleged an- other cause, which precluded such claim. Again, the first defense had already set out the bill of lading containing the agreement stated in the second defense, and had alleged that it was rriade with Parley A. RuHsell, who described himself as agent for the shipper. The record con- clusively shows that the defendant was deprived of no advantage by the failure of the first defense to state more particu- larly than it did that the bill of lading was a contract between the plaintiff and the defendant. The court treated it as such, and in the charge to the jury tells them that it seems to be an undisputed fact that Mr. Russel. signed it as the plain- tiff's agent. The defendant has no just ground to complain because the demurrer was sustained. At the trial the defend- ant introduced the following bill of lading which was set forth in its answers: "Housatonic Railroad. Great Barrina- ton Station. April 2.'i, 1891. In con- sideration of the Housatonic Railroad Co., and also in consideration of any cor- poration whose roads connectinK there- with, receiving and carrying, viz., one horse, value flOO; one colt, consigned to Rundle & White, Danbury, Conn., freight prepaid, the owner and shipper hereby agree that none of said corporations shall be liable for damage or loss of or to all or an.y part of said freight by reasons of breaking, chafing, weather, fire, or water, except wherecollision or running from the track, resulting from negligence of the cor- poration's agents, shall cause the same; and the shipper and owner hereby promise to pay the freight, and to claim no deduc- tion therefrom by reason of any damage or loss. L. F. JoNKS, Station Agent. Signed In duplicates : Parley A. Ru8SEI-,l, Agent for shipper and owner. " The defendant requested the court to charge the jury that, inasmuch as the dec- laration charges the defendant merely as a common carrier, but the proof is that the mare and colt were shipped under a special contract, the proof does not sup- port the declaration, and the verdic<' must be for the defendant. This the court de- clined to do, but charged that, in view of the complaint, and of all the pleadings, and of the evidence offered by the plain- tiff, the suit was to be regarded as an ac- tion to recover of the defendant upon the ground for its negligence. The refusal of the court to charge as requested by the defendant was fully justified. If the animals had been shipped under a special contract, which undertook to completely exonerate the defendant from the conse- quences of its own negligence, the request would have been proper. I5ut in this case there is no attempt on the part of the defendant to limit its common -law lia- bility except by reason of breaking, chafing, weather, fire, or water, where collision or running from the track, result- ing from negligence of the corporation's agents, does not cause the same. It is argued by the defendant that the injuries which the mare sustained and which occasioned her death, namely, the breaking of a leg, and other severe inju- ries, occasioned by her being thrown down by a sudden side movement of the car, are properly described by the words "breaking" and "chafing" in the bill of lading, aird are therefore injuries against which the defendant undertook to ex- empt itself from responsibility, even for its own negligence, unless such negligence caused collision or running from the track, which, in this case, it did not. Such argument is unsound. None of the words, "breaking, chafing, weather, fire, or wa- ter," used in the bill of lading to describe the occasion of the damage against which the defendant limits its liabilit.y, are apt or appropriate to describe the injuries complained of, nor injuries to live freight at all. It is evident the bill of lading used on this occasion was one ordinarily used for goods, wares, and merchandise, other than living animals, or, at any I'ate, was only appropriate for such property. In Camp v. Steam-Boat Co., 43 Conn. 333, twelve barrels of sugar and one tierce of rice were shipped under a bill of lading, which contracted to transport and deliver them in the order and condition in which received, the acts of God, public enemies, perils of sea and river navigation, collis- ion, fire, and all other perils, dangers, and accidents not resulting from the neg- ligence of the company or its agents, ex- cepted. On the passage through Hell Gate the steam-boat struck on a rock and sprung a leak, whereby the goods were damaged. The plaintiff sued the steam- boat company as common carriers, and 300 CAliRIERS or FREIGHT. himself introduced the bill of lading in evi- dence. The defendants claimed and re- quested the court to instrnct the jury that the contract between the parties, upon which they were alone liable, if atall, was expressed in the bill of lading, and that it was the duty of the plaintiff to set out in his declaration the contract and the ex- ceptions as to liability as contained there- in; that there was a variance between the declaration and the proof, and that the plaintiff, therefore, could not recover; and that the goods were received by the de- fendant not as common carriers, but un- der the contract contained in the bill of lading. The court declined so to instruct the jury, but instructed them that the plaintiK might recover, unless the defend- ants showed that the accident occurred through no want of reasonable care or prudence on their part. Upon a motion for a new trial for error In refusing to charge as reijiiested, this court held that there was a fatal variance between the allegations of the declaration and the proof. It held it to be well settled that common carriers may stipulate for a less degree of responsibility than the common law imposes, and that, while the English courts hold that they may stipulate for entire exemption, even for their own neg- ligence, the courts in this country differ only as to the extent to which public poli- cy will allow the stringency of the ancient rule to be relaxed, and generally hold that they will reserve the right to pass ppon the reasonableness of the particular con- tract made, and will not allow the carrier to exempt himself by special contract from the consequences of his own negligence or that of his agent. That case, however, differs from the case at bar. To be sure, the bill of lading in the latter undertakes to exempt the defendant from responsibil- ity for all damage to freight by reason of breaking, chafing, weather, fire, or wa- ter, even though occasioned by its negli- gence, other than negligent collision or running off the track; and in respect to freight to which that contract applied we should hold -that the contract for exemp- tion from consequences of its own negli- gence could not be sustained. But tnere is no contract that the defendant shall be exempted from damages occasioned by its own negligence in tailing to provide a suitable car, or for so transporting a mare that she is thrown down so as to break her leg, and receive other severe injuries, of which she dies. In respect to every in- jury except those caused by breaking, chaling, weather, fire, or water, or by col- lision or runningoff the track through the negligence of its agents, the defendant is subject to ail the responsibilities of a com- mon carrier. No attempt is madeto limit such responsibilities. The bill of lading contains no contract respecting them. The common-law rule which made car- riers practically insurers of property while being carried by them has, however, from ihe very necessity of the case, been In a measure relaxed in the carriage of live- stock. As suggested in Edw. Uailm. § 6S0, the carrier can store away goods, so as to secure their safety; but a carrier of ani- mals by a mode of conveyance opposed to their habits and instincts has no such means of securing absolute safety. They may die of fright; they may, notwith- standing every precaution, destroy them- selves in attempting to break away from the fastenings by which they are secured ; or they may kill each other by crowding, plunging, or goring; the motion of the cars, theirirequent concussions, thescream of the engines may often create a kind of frenzy in the swaying mass of cattle; and the carrier is not held liable for injuries or losses arising from the irrepressible in- stincts of this 11 vingfreight which he could not prevent by the exercise of reasonable care. While he is not an insurer against injuries arising from the nature and pro- pensities of the live-stock carried by him, yet his liability is not limited to a careful conveyance of the cars containing them. He must provide, in advance, suitable means to secure their conveyance; and he must use those means with all reason- able diligenceandforethought in the vary- ing circumstances arising in the business. To apply these principles to the case be- fore us: The plaintiff sued the defendant as a common carrier of live-stock. The defendant, as one defense, set up the bill of lading, and claimed that the mare and colt were shipped under its specipl [irovis- ions, which varied its ordinary liability, and therefore the proof did not support the declaration. The plaintiff claimed in reply that the injuries named in the bill of lading for which the defendant undertook to limit its liability did not refer to in- juries to live-stock at all, and, if they did, no exemption was pi-ovided for the in- juries complained of, and therefore, in re- spect to the care required in transporting and to injuries of the nature of and oc- casioned as those in question, the defend- ant took the mare and colt as common carriers simply, and not under a special contract. If this was true, there is no variance. The facts do not present a ques- tion of technical variance. The plaintiff does not set out one contract in his com- plaint and prove another. He claims to recover against the defendant as a com- mon carrier, and introduces no proof in- consistent with such claim, and Insists that the proof introduced by the defend- ant is not inconsistent with that claim. It is a question of construction of the contract contained in the bill of lading, and the court was right in instructing the jury that there was no such variance be- tween the allegations and the proof as re- quired a verdict for the defendant. The question was whether the bill of lading, properly construed, prevented the plain- tiff from recovering from the defendant under its common-law liability as a car- rier of live-stock. The court thought it did not, and we think the court was right. The defendant insisted that, if its claim of variance was not sustained, then it was not to be held as an insurer of the prop- erty, it being live freight; that no recov- ery could be had except upon proof of its negligence; that it was not negligent in respect to the car used for transportation, nor for the Injury that occurred through the mare's fright, etc., nor for refusing (which it said it did not) to take the car off at Ashley Falls; and that, if liable at all, the damage could be but $100. CAKRIEHS OF FREIGHT. 301 That the defendant would not be held to be an insurer of the mare and colt we have already seen. Negligence on its part must be shown before the plaintiff can re- cover. And the instruction of the court to the jury,— that, if they found that the defendant was not guilty of either of the acts (jf negligence claimed, and so that the injury occurred by reason of the pro- pensities of the animal, and its nervous- ness and fright, without negligence of the defendant, their verdict should be in its favor, — was unquestionable. The next question relates to the law re- specting the car furnished by the defend- ant for the transportation of the animals, and its acceptance by the agent of the plaintiff. The carrier is bound to furnish suitable, safe, and properly constructed cars in which to transport live-stock,^ suitable in reference to the kind and valne of stock carried. It is said that they can- not escape this obligation by calling at- tention to the defective condition of the <^ar at the time the stock is received on board. If, however, the defect relates to the commodiousness of the car, and the possible effect uf larger accommodations upon the particular animal to be carried, and the (juestion is discussed between him and the carrier, who informs him that a more commodious car will be furnished if the shipper is willing to pay a larger rate of freight, (such larger rate not being unreasonable,) and the shipper decides to take the cheaper car, himself attempting to guard against the want of room, it is a matter to be considered. We cannot but think that the charge unduly limited the field of inquiry. It instructed thejury, as requested by the plaintiff's fourth re- quest, that mere suspicion, without no- tice to Mr. Russell, (the shipper's agent,) "that the car offered for the transporta- tion r>f the animals was not suitable for the purpose, and the mere use of ttie ear after efforts on his part to guard against the defects in the car by padding the head of the mare and the cross-pieces, did not exempt the defendant from liability for loss caused while the animals were in the course of transportation by the defend- ant's negligence in furnishing such defect- ive car, without proof of a distinct agree- ment on the part of Mr. Russell, as agent of the plaintiff, to assume the risk arising from the defects of the car." In the first place, the preamble that mere suspicion, without notice to the plaintiff's agent, that the car was not suitable, etc., was not adapted to the facts of the case, and might easily mislead the jury. It was not a case of mere suspicion without notice. The plaintiff's agent knew that the car in which it was proposed to ship the ani- mals was an ordinary box freight-car. The finding states that it appeared in evidence that the said agent, before ship- ping said animals, saw the car which was used, and knew of tlie alleged defects in its construction, namely, of the alleged fact that the roof and rafters of said car were so low that a horse on lifting its head was liable to strike the same, and that said car was without stalls or parti- tions in the inside, and caused precautions to be taken for their protection by pad- ding the rafters of the car, and placing a stuffed hood upon the mare, and by con- structing a pen for the colt. Instead of a case of mere suspicion, it was a case of actual knowledge of the existence of the very defects which were claimed to consti- tute the defendant's negligence, and an at- tempt by the plaintiffs agent to guard against them. Then, again, it appeared in evidence that said agent was informed that the defendant had two special horse- cars, which were provided with passen- ger-car springs and buffers, and which had padded stalls and arched rafters, and that said animals could be shipped in one of those cars at the same rate and upon the same terms as by said box freight-car, upon payment of the additional sura of 10 cents per mile for the use of such special car. In other words, according to tlie de- fendant's claim, the plaintiff tendered a mare and colt, which he stated were worth .$100, for transportation. Before the animals were shipped, the plaintiff saw the box-car in which they were sub- sequently shipped; knew of its alleged defects; was informed that the defendant had special horse-cars, free from the al- leged defects, in which the animals could be shipped for an additional charge; did not avail himself of the special car, but attempted to remedy the defects of the box-car, and the animals were sent in it without his objection. Now, had not the jury a right to Hud, from these facts alone, that Mr. Russell, as agent of the plaintiff, assumed the risk arising from those defects of the car? It was not necessary to prove that he expressly said: "I see that the car is low from floor to roof, and I hear your offer of better accommodations for a higher price, but decline it, and willmi'selt assume the risk arising from such defects of the box-car;" nor words of like import. His acts, viewed in the light of the sur- rounding circumstances, might evidence his assumption of the risk as clearly as his distinct agreement so to do. The defend- ant was hound to furnish a suitable car for the transportation of horses. It was still the duty of thejury to inquire whether it did BO. If the box-car was unsuitable for the transportation of ordinary horses of the value placed by the plaintiff's agent on these, then the defendant might be lia- ble though it Informed the plaintiff of its better accommodations for a higher price. But if the jury found that the box-car was suitable for theordinary business of trans- porting horses, though lower between joists than the special cars furnished at a higher price; that the plaintiff was aware of such defects, and was informed about such special cars, and the additional price charged for them was not unreasonable; and that, thereupon, he attempted to guard against the possible effect of the lower space, and acquiesced in the use of the car which was used, — then it was com petent for them to further find, from such facts alone, that the plaintiff assumed the risks incident to the defect in question. We think the defendant was entitled to a charge to that effect, and that the instruc- tions given were too restrictive in this particular. We now come to consider the effect of a valuation by -the shipper of the property offered for transportation. The plaintiff 302 CABRIEUS OF FREIGHT. requested the court to instruct the jury that the specification of value in the sup- posed bill of lading is insufficient to shield the defendant, if otherwise liable, from the full damages, if they were caused by its own negligence, as claimed by the plaintiff. The defendant, on the contrary, requested the court to charge that the plaintiff is bound by the valhatiou of the stock shipped at $100, stated in the con- tract, and could in no event recover more than that sum as damage for any injury to the same. The court declined to charge as requested by the defendant, and so statea to the jury, but instructed thera as follows : " Where the injury to property is caused by the carrier's negligence, he is liable to the full value of the property, unless there was a distinct agreement, fairly obtained, that his liability should be limited to such agreed valuation. Ap- plying these principles to the case, I charge you that, if the loss in question was caused by the negligence of the de- fendant as alleged, the defendant is liable for the full value of the goods, unless you find that there was a distinct agreement between the defendant and the plaintiffs agent, fairly obtained, limiting the de- fendant's liability to the valuation named in the release,— one hundred dollars. If you find that there was such an agree- ment, even though the loss was occa- sioned by the defendant's negligence, the defendant is liable for the injury to the property only to the amount of the value named in the release. " Again, after call- ing attention to a claim that the plain- tiff's agent signed the release without read- ing it, and stating that, nevertheless, if, when he signed it, it contained the state- ment of the value of the property, he is chargeable with a knowledge of such statement, the court adds: "But the re- lease did not contain an express stipula- tion limiting the liability of the railroad company to the valuation stated in the release. I shall charge you that the mere act of signing this particular instrnmeut by J»lr. Russell, as the plaintiff's agent, without fraud or concealment on his part of the value of the goods, without any information that such statement of value would affect the liability of the company, and without supposing; thac it would, does not exempt the railroad company from liability beyond the valuation stated in the release tor the loss or injury occa- sioned by the defendant's negligence." It is a rule established by some of the best authorities, and one which we recognize as expressing the law, that when a con- tract is fairly made between shipper and carrier agreeing ou the valuation of the property carried, with the rate of the freight based on the condition that the carrier assumes liability only to the ex- tent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations of the property after a loss has occurred. Hart v. Railroad Co., 112 U. S. 331, 5 Sup. Ct. Rep. 151; Squire v. Railroad Co., 98 Mass. 239; Graves v.Eail- roadCo., 187 Mass. 33; Schouler, Bailm. § 457. But we are met here with a further ques- tion. In case of loss through negligence of the carrier, is the shipper bound by the valuation which he, in answer to the car- rier's inquiry, gave to the property when shipped, and which value was thereupon inserted in the bill of lading, although the bill of lading is silent as to the effect of such valuation UDon the shipper's liabil- ity, and he had no actual information, and did not suppose, that his statement of value would affect the liability of the company in respect to the damage they would be liable to pay in case of loss? The defendant, as we have seen, claimed that the plaintiff was bound by the valu- ation he himself gave of the stock when It was shipped. The court said "No," un- less there was a distinct agreement, fairly obtained, limiting the liability to such valuation; that, inasmuch as the bill of lading did not contain such express stipu- lation, the mere act of signing it by the shipper's agont, without fraud or conceal- ment on his part of the value of the g(jods, and without supposing that his statement of value would affect the liabil- ity of the carrier, does not exempt the lat- ter from liability -beyond the valuation stated in the release. It is not clear what thecourt meant by the words, "without fraud or concealment," when charging that the mere act of signing the bill of lading by the agent, without fraud or concealment on his part of the value of the goods, etc. If the shipper, through his agent, signed a bill of lading in which the value of the property was stated, in accordance with his own valuation, at f 100, which in fact, as he now claims, was worth $2,000, does the fact that his first valuation was an honest mistake affect the question of the carrier's liability? And is that the meaning of the charge? If he knew the mare to be worth a much larger sum when he gave her value at 1100, there was, at least, concealment, even though he did not know or believe that such incorrect valuation would affect the carrier's liability for damage in case of loss, and perhaps thought it would only enable him to get a lower rate of freight. The court evidently meant to say, in effect, as appears from the entire charge, that, unless there was an express, distinct contract that the value placed upon the property should determine the amount of damages to be recovered in case of loss through the carrier's negli- gence, verdict should be rendered for the full value of the property lost. No case was cited by counsel where precisely that question was decided. That the valua- tion made by the shipper affects the care required to be taken of it in transporta- tion by the carrier, without an express, distinct agreement to that effect, will not be questioned. No one but understands that his property, valued at .f50, will get, and the law will require, less care and protection in transi)orting it than prop- erty valued at $1,000, and that he will pay less for such transportation, though it is of equal bulk. Upon the question whether the carrier CARRIERS OF FREIGHT. 303 was negligent in transporting the proper- ty, its value, as stated by the shipper, and relied on by the carrier, in the absence of anything which ahould cause hira to dis- credit such valuation, would be conclu- sive, so far as value is an element of the inquiry. It has been held that, if the owner conceal the value or nature of the article, the carrier will not be liable for its loss. Thus, Judge Kent, (volume 2, pt. 5, §40,1 after stating the general rule that a common carrier is answerable for the loss of a box of goods though igno- rant of its contents, and though those con- tents be ever so valuable, unless he has madeaspecial acceptance, says: "But the rule is subject to a reasonable qualifica- tion, and, if the owner be guilty of any fraud or imposition in respect to the car- rier, — as by concealing the value or nature of the article, — he cannot hold him liable for the loss of the goods. Such an impo- sition destroys all just claims to indemni- ty, for it goes to deprive the carrier of the compensation which he is entitled to in proportion to the value of the article in- trusted to his care, and the consequent risii which he incurs; and it tends to les- sen the vigilance that the carrier would otherwise bestow." Says Schouler, in his' work on Bailments & Carriers, (section 423:) "A carrier Is to be charged with no responsibility beyond what the thing ap- pears on its face find the proof at com- mand to deserve; and the sender, whose conduct induces him to relax his guard, or goes to deprive him of his just compen- sation, puts himself without the pale of justice." That the value of the article, as stated by the owner, is a proper ele- ment to be considered in measuring the care to be bestowed upon it by the car- rier, is, we repeat, beyond question. The reasoning of the court in Hart v. Railroad Co., supra, tends very strongly to uphold the defendant's claim that, in the case of loss through its negligence, the plaintiff is bound by his own valuation of the prop- erty when delivered for transportation, though there was no express agreement tq that effect. There was an express agreement in that case, hut the court seems to discuss the question upon gener- al principles. After quoting the abov3 passage from Kent respecting it, it says: "This qualification of the liability of the carrier is reasonable, and is as important as the rule which it qualifies. There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even when the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight, and secure the car- riage, if there is no loss; and the effect of disregarding the agreement after a loss is to expose the carrier to a greater risk than the parties intended he should as- sume. " The agreement as to value, in this case, stands as if the carrier had asked the value otthe horse, and had been told by the plaintiff the sura inserted in the contract. The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compen- sation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the con- tract of transportation, between the par- ties to tliat contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a con- tract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest prin- ciples of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be al- lowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss. It would seem as if good morals required that the same rule should hold good in respect to a statement of value ma^'e by a shipper; even though there is no express contract that any loss that might occur should be measured by such statement. A shipper should not be allowed to reap the benefit of his statement of value, the natural consequence of which causes the carrier to treat freight in a certain way, resulting in its loss, as would apply in case of an agreement that a statement of value should govern in case of loss. Actual notice, given by a common carrier to his customer, specifying the terms on which he receives and carries goods, be- comes parcel of the contract when it is proved that the property was delivered on the terras thus offered. And, though it be hot made the basis of a contract, it often becomes effective to shield the car- rier from liability for things of special and peculiar value, not disclosed at the time of delivery; for it appears to be agreed that the carrier may in this manner re- quire the shipper to state the nature or value of the property at the risk of having it received and carried as an article of or- dinary value. The carrier does not im- pose an illegal condition. He asks for reasonable information bearing on the transaction ; and the shipper is left free to act on his own discretion, accepting the legitimate consequences of liis conduct. Edw. Bailm. § 569. Why is it not a legiti- mate consequence of his conduct to hold him to his own valuation when he sues for loss of the property so valued? And why may not the carrier require the ship- per to state the nature or value of the property at the risk of being obliged to stand by the value so stated, in reliance upon which it has been accepted and car- ried, even though it be not made the basis of a contract, as well as at the risk of hav- ing the property carried as an article of ordinary value? We are inclined to hold that to be the law. The defendant grounds another reason for appeal on the instructions that the plaintiff's agent was not chargeable with a knowledge or notice of the freight rules 304 CARRIERS OF FREIGHT. •of the defendant from the mere fact that tliey were hung up in the office, nor charge- able with knowledge of them, unless the jury were satisfied from the evidence that he had actual knowledge or some notice or information respecting them ; and that, if he did not know them, and _was not in- formed of them, it was not proper for the jury to decide from the rules themselves that he made a contract freeing the de- fendant from liabilitj' respecting the de- fects of the irar, nor to consider them in ascertaining whether the plaintiff's agent entered into such an agreement; and, if they found no such agreement as de- scribed, the plaintiff was entitled to re- cover if they found the primary cause of the injury was the defendant's negligence in furnishing a suitable car, although, but for the nature and propensities of the ani- mal carried, no loss would have resulted. These instructions referred to certain por- tions of a pamphlet containing the official classification of freight, and certain rules and terms forthe transportation of freight, then in force on the road, which, for the information of shippers, was hung up in the defendant's freight office, though not in the office where people came to make their contracts for the shipment of freight. The instructions thatthe plaintiff was not chargeable with notice of the rules con- tained in the pamphlet upon facts stated was correct. A pamphlet hanging in a railroad company's office, containing rules and rates, is not, of itself, constructive no- tice of its contents. Nor is this a case for the application of the ordinary, but not universal, rule that full and adequate means of knowledge are equivalent to linowledge itself. It will not do to hold that, where a shipper and common carrier contract about the carrying of freight and the rate to be paid, without reference to the fact that there are printed rules upon the subject, and of the existence of which the shipper is ignorant, he shall be held to have constructive knowledge of the rules, sven though the interstate commerce acts required tliem to be posted. The defend- ant claimed to have proved that the at- tenti«jn of the plaintiff's agent was called to these rules, and that they wereexplain- ed to him. This the plaintiff denied ; that a charge based upon both contentions was necessary, and was given. The re- maining part of this reason for appeal has already been sufficiently discussed. The next reason for appeal is that the «ourt charged that if, in the course of transportation of the animals, the agents of the defendant in charge of the train wrere apprised or informed by the plain- tiff's agent that the transportation was causing fright of the mare, whereby she was acting badly, and was in danger of being killed or hurt by further transporta- tion, and if the defendant's agents were requested by plaintiff's agent to set the •car on the side track at Ashley Falls, to prevent further danger to the mare.it was the duty of the defendant's agents so to do if it could reasonably have been done, and the neglect to do so would have been negligence on the part of the defendant. What actually occurred between the agents of the respective parties in this be- half was a matter of dispute, which was left to the jury to decide. The charge was correct-. Most of the objections ui-ged against it are answered by the limitation stated by the court, that it was the defend- ant's duty to have complied with the re- quest if it could reasonably have been done. The charge was appropriate to the facts as claimed by the plaintiff. At the trial the defendant offered in evidence a way-bill in the ordinary form, containing the place and date of the consignment of the property, its destination, the name of the shipper and of the consignees, a de- scription of the articles, their weight, value, and the rate and amount of ex- pense, whether paid or unpaid. It ap- peared from the defendant's evidence that it was neither signed by nor shown to the plaintiff or his agent, but was made only for the convenience of the company, and was ordinarily given to the conductor of the train. Upon the plaintiff's objection, the court excluded the way-bill, and the defendant excepted. For what purpose it was offered, and for what reason objected to, nowhere appears. If we are at liberty to conjecture that it was objected to for all purposes, and can see that it was ad'- missible for any, then it was wrongly ex- cluded. In concluding whether the defend- ant was negligent because its agent de- clined to comply with the request to switch the car at Ashley Falls, (assuming that the jury found that such request was made,) the information contained in the way-bill delivered to him might be a proper element. As far as appears, it was his only source of information concerning the property. If asked to interrupt its transportation, he had a right to consult the way-bill as to its destination and value, and measure his actions, in some de- gree, upon its contents. What would be negligence in such a case in respect to very valuabla property, might not be negligence in respect to property of little value. If the way-bill showed that the property was to be carried but a short distance further, he would have a right to take that into account. In short, for some purposes the way-bill was admissible evi- dence. IE the decision of the case depended upon this point, we should hold that the record did not supply sufficient informa- tion to enable us to decide that the court erred. The questions presented in this case are numerous, and some of them difficult and Important. The conclusions we have reached upon the points in which we think the superior court erred entitle the defend- ant to a new trial, and we might have stopped there without considering the other reasons for appeal. But they would have been likely to reappear after the new trial, and it seemed best to settle the law of the case, so far as possible, now. As to the plaintiff's request to charge contained in the finding and enumerated in the plain- tiff's bill of exceptions, what we have al- ready said sufficiently indicates our opin- ion as to the duty of the court respecting all of them except one. We have neces- sarily discussed the grounds upon which they are based in discussing the points made in the defendant's appeal, and need not repeat the discussion nor the conclu- sions. If the same questions arise again, CARRIEHS OF FREIGHT. 3C5 we think they are fully aiiswerecl. The one request to charge not yet referred to is plaintiff's request No. 9, that the court Khoul(J charge the jurv "that the state- ment of value in the so-called 'bill of lad- ins' only affects the mare, and has no ref- erence to the colt. " We see nothing in the case to justify such a charge; nothing to indicate that it was an.ything but a ques- BALDW.SEL.CAS.R.B. — 20 tion for the jury to say upon the facts, in- cluding an inspection of the bill of lading,, whether the figures indicating $100 were meant to indicate the value of the mare and colt or only the value of the mare, — a question which the finding shows was in dispute. There is errorin the judgment, and a new trial is ordered. The other judges concurred. 306 STEEET BAILWAYS. Injunction, Use of electric potrer on horse railroad. Notice of proposed location. Poles planted in highiiray. Distinction between steam and street railroads. Eminent domain. Additional servitude. TAGGAKT et al. v. NEWPORT STREET RAILWAY CO. (16 R. I. 668, 19 Atl. 326.) Supreme Court of Rhode Island. Jan. 18, 1890. Bill for injunction. Julieii L. Daires, Arnold Green, and Pat- rii:k J. Qalvin, for complainants. Francis B. PeMiam and Darius Jiaker, for respond- ent. DURFEE, 0. J. This bill is brought by the complainants as abutters on ceitain streets in the city of Newport along and over which the tracks or rails of the defendant company's street railway have been laid. The object is to have the company enjoined from erecting or miiintaining certain poles and wires in the streets in front of their estates. 8aiil poles were erected to support said wire over said tracks for the conduction of electricity, wliich is used as a motor lor the passenger-cars traversing said tracks. The poles are placed along the margins of the sidewalks of .said streets, about 120 feet apart, and were placed so by permission of the city council of the city of JS'evvport, given by ordinance. The case was submitted on bill and answer, no replication liavinsf been filed. The bill al- leges several grounds of relief. We will con- .■sider them seveially, as alleged. The first ground is that the company did not give notice as required by section 2 of the act of incorporation. Said section provides for notice to abutters, to be given by publica- tion and posting, at least 14 days before tlie Jocation of tracl89. It seems to us that the latter ordinance was clearly author- ized by section 5, in the words above quoted. The previous location of the tracks was not affected thereby. The second ground alleged is that the right to use electricity Is not given. The language in regard to the power to be used is that above granted, namely, that the road shall be oper- ated "with steam, horse, or other power, as tlie councils ol said city and towns may from time to time direct. " The complainants con- tend that the word "steam" must be struck out, because it has been decided that steam cannot bo used without compensation to the owners of the fee for the new servitude im- posed, and no compensation is provided for, and because, "steam" being struck out, "oth- er power" must be construed to mean other power similar to horse-power, i. e., other animal power. We do not find the argu- ment convincing. Allowing that "steam" must be struck out for the reason given, it does not follow, in our opinion, that "other power" must be construed to mean other animal power. Horse-power Is the only animal power which has ever been used for the traction of street railway cars in our nortliern cities, and it is the only animal power which could have occurred to the gen- eral assembly as fit to be used. The sugges- tion that" "other power" may mean mules can- not be entertained. The act of incorporation was passed in the winter of 1885, when the idea that electricity might be brought into use as a motor was already familiar ; and noth- ing seems more probable than that the words "other power" were inserted with a view to its possible employment. We do not think the second ground valid. The third ground is that the erection of the poles on the sidewalks is, in effect, pro- hibited by the act of incorporation. The seventh section, which relates to the repairs of the streets where the tracks are, and to damages for negligence on the part of the company, concludes as follows, to- wit: "And said corporation shall not incumber any por- tion of the streets or highways not occupied by said tracks. " The poles are certainly in a portion of the streets not occupied by the tracks; but do they "incumber" that portion, in the meaning of the word as it is used ? To inoumber, according to Webster, is "to im- pede the motion or action of, as with a bur- den; to weigh down; to obstruct, embarrass, or perplex." To incumber, as used in said section 7, doubtless means to obstruct or hin- der travel, by putting things in the way of it. The poles are very slightly in the way of travel, being placed, as hitching posts, lamp- posts, electric light poles, telegraph and tele- phone poles are placed, near the front margins of the sidewalks. We are not inclined to say, however, that they do not incumber be- cause they are placed as they are, but only that it does not follow that they incumber because they ari:- so placed. Take, for in- stance, a lamp-post, or an electric light pole. STREET RAILWAYS. 307 It is slightly in the way, and, if it served no useful purpose in regard to the street, might justly be deemed to incumber it. But it sup- ports a lamp or an electric light which ilhi- mi nates the street at night, and so improves the street for its proper ul.es. It is not, there- fore, an "incumbrance," in any proper sense of the word. The real question is, as it seems to us, whether the words, "and said corpora- tion shall not incumber any portion of the streets or highways occupifdby said tracks," were Intended to restrain the city council of the city of Newport from authorizing the use of electricity for a motor, in the nuinner in wliich it is used by the (.ompany. We have al- ready decided tliat the council has power, by section 5, to authorize the use of electricity; so that the question relates only to tlie man- ner of using, and is whether the council lias power to authorize the use in said manner. It seems to us that the provision that the tracks or road shall be operated by "steam, liorse, or other power, as tlie councils of said city and towns may from time to time direct, " is broad enough to empower said councils, not only to authorize the use of electricity as a motor, but also to authorize its use by means of any system of application which itapproves as suitable; and it further seems to us tliat the concluding words of section 7 have their full meaning when applied to the company acting ■of itself, without extending them to city and town councils acting under section 5, or to the company acting under said section, as authorized by such councils. It appears that said concluding words were copied from char- ters of street railway companies which were •only authorized to use horse-power, and in which, of course, they could have liad no such •application as is here contended for. It also appears from the allegations of the answer that the mode of using electricity which has been adopted is the only mode in which it can be successfully used by the company for the operation of the road.. These are things which confirm our view. Our conclusion is that the power conferred bj' section 5 is not •qualified by the concluding words of section 7, and that the poles complained of, having been erected, under section 5, as part of the apparatus for supplying the railway with its motive power, are to be regarded, not as in- •cumbering the streets, but as ministering to their uses, and as increasing the facilities for travel whicli they afford to the public. Tlie fourth ground alleged is that if the act of incorporation authorizes the use of •electricity for the operation of said street rail- way, and the erection of the poles as ancil- lary thereto, it is unconstitutional and void because it authoi-izes the imposition of an additional servitude upon the streets, without providing for any additional compensation ' to the owners of the fee of said streets. We think it is settled by the greater weight of decision that a railroad constructed in a street or highway, and operated by steam, in the usual manner, imposes new servitude, .and entitles the owner of the fee to an addi- tional compensation, but that a street railway operated by horse-power, as such street rail- ways are ordinarily operated, does not impose any new servitude, and does not entitle Lhe owner of the fee to an^additional compensa- tion. Mills, Em. Dom. § 205, and cases cited; Ang. & D. Highw. § 91d, note 1, and cases cited; Newell v. Railway Co., 35 Minn. 112, 27 N. W. Rep. 839, also 25 Atner. Law Reg. (M. S.) 431, and cases cited in the note. The distinction is often stated as a distinc- tion between steam and horse railroads, but the distinction properly rests, not on any dif- ference in motive power, but in the different effects produced by them, respectively, on the highways or streets which they occupy. A steam i-ailroad is held to impose a new serv- itude, not because it is operated by steam, but because it is so operated as to be incom- patible with the use of the street, or, in other words, so as practically to exclude the usual modes of use. Pierce, R. R. 234. A steam railroad on a street, so opei'ated as to be con- sistent with the use of the street in the usual modes, has been held not to impose a new servitude. Newell v. Railway Co., supra; Fulton V. Transfer Co., 85 Ky. 640, 4 S. W. Rep. 332. It is not the motor, but the kind of occupation, whether practically exclusive or not, which is the criterion. Briggs v. Railroad Co., 79 Me. 363, 10 Atl. Rep. 47. A steam railroad, as ordinarily operated, it has been said, comes into serions confl'ct with the usual modes of travel, and is a perpetual embarrassment to them, in greater or less degree, according as the business of the rail- road is greater' or less, or as the running of the trains is more or less frequent; whereas, the ordinary street railway, instead of adding a new servitude to the street, operates in furtherance of its original uses, and, instead of being an embarrassment, relieves the press- ure of local business and local travel. Rail- road Co. v. Heisel, 38 Mich. 62. See, also. Attorney General v. Railroad Co., 125 Mass. 515; Citizens Coach Co. v. Ciimden H. R. Co., 33 N. J. Eq. 267; Elliott v. Railroad Co., 32 Conn. 579; Hobart v. Railroad Co., 27 Wis. 194. The only considei'able privilege which the horse-car has over other vehicles is that, being confined to its tracks, it cannot turn aside for other vehicles, while they are forced to turn aside for it; but this is an incidental matter, insufficient to make the horse railroad a new servitude. Shea v. Railroad Co., 44 Cal. 414. The street railway here complained of is operated neither by steam nor horse power, but by electricity. It doi-s not appear, how- ever, that it occupies the streets or highways any more exclusively than if it were operated by' horse-power. The answer avers that "electricity, besides being as safe and as easily managed as horse-power for the pro- pulsion of street-cars, is more quiet, more cleanly, and more convenient than horses, both for residents on the streets used by said cars, and for the public generally, and also causes much less wear and injury to the 303 STREET RAILWAYS. streets and highways than is occasioned by street-cais of which horses are the motive power." These averments, the case being heard on bill and answer, must be taken as true. We see no reason to doubt their truth. It is urged that elecwicity is a very danger- ous force, and tliat the court will take judi- cial notice of its dangerousness. The court will take judicial notice that electricity, de- veloped to some high degree of intensity, is exceedingly dangerous, and even fatally so, to men or animals, when it is brought in contact with them ; but the court has no judi- cial knowledge that, as used by the defendant company, it is dangerous. The answer de- nies that it is dangerous to either life or property. It is also urged that the cars, moving apparently without the application of external force, alarm and frighten horses. This, so far as it is alleged in the bill, is denied in the answer. We see no reason to suppose that this form of danger is so great that on account of it the railway should be re- garded as an additional servitude. The an- swer alleges that a great many street railways operated by electricity, in the same manner as the railway of the defendant is operated, are in use in various towns and cities in dif- ferent states, and that many others are in process of construction. Reference has been made to cases which hold that telegraph or telephone poles and wires erected on streets or highways consti- tute an additional servitude, entitling the owners of the fee to additional compensation; and from these cases it is urged that the rail- way here complained of is an additional serv- itude, by reason of the poles and wires which communicate its motive powers. There are cases which hold as stated, and there are cases which hold otherwise. But, assuming that telegraph and telephone poles and wires do create a new servitude, we do not think it follows that the poles and wires erected and used for the service of said street railway likewise create a new servitude. Telegraph and telephone poles and wires are not used to facilitate the use of the streets where they are erected for travel and trans- portation, or, if so', very indirectly so; whereas the poles and wires here in question are directly ancillary to the uses of the streets, as such, in that they communicate the power by whicTi the street-cars are pro- pelled. It has been held, for reasons which we consider irrefragable, that a telegraph erected by a railroad company, witliin its- location, for the purposes of its railroad, to- increase the safety and efBciency thereof,, does not constitute an additional servitude, but is only a legitimate development of the- easement originally acquired. Telegraph Co. V. Rich, 19 Kan. 517. Our conclusion is that the complainants are not entitled to the relief prayed for on the ground alleged, and that the bill be dismissed, with costs. Of. Halsey v. Rapid Transit Street Railway Co. (1890) 47 N. J. Bq. 380, 20 Atl. 859; Raf- ferty v. Central Traction Co. (1892) 147 Pa. St. 579, 23 Atl. 884; Koch v. Nortbi Avenue Railway Co. (1892) 75 Md. 222, 23 Atl. 463. STREET RAILWAYS. 309 Equity. Reviaw of findings of fact by trial court. Ordinance granting right to build -way creates contract with company. Condition subsequent. Repeal and confiscation. Receiver. Intervening petition. Removal of tracks. Parties. City attorney. Account. Reference to master. Demand for a jury. CITY OP BELLEVILLE v. CITIZENS' HORSE RY. CO, (152 111. 171, 38 N. B. 584.) Supreme Court of Illinois. Oct. 22, 1894. Appeal from appellate court. Fourth dis- ti-lct. Bill by J. D. Perry and L. G. McNair against the Citizens' Horse-Railway Compa- ny, the city of Belleville, and John Thomas for foreclosure of a mortgage and other re- lief. The city of Belleville filed an inter- vening petition. A decree was rendered fore- closing the mortgage, and'granting the prayer of the intervening petition, but this decree, so far as the intervening petition was con- cerned, was revised by the appellate court. 47 HI. App. 388. The city appeals. Reversed. The Citizens' Horse-Railway Company, ap- pellee herein, was granted the right and priv- ilege of laying its track and operating Ws road along certain streets in the city of Belle- vUle, under and by virtue of an ordinance passed December 21, 1885. Section 1 grant- ed the right and named the route. Section 2 required the company to pay owners of abut- ting property damaged, if any, by reason of the construction of the road. Section 3 pro- vided that the rights granted to the company were subject to the right of the city to use, improve, and repair the streets, "and to make all necessary police regulations concerning the management and operation of said rail- road." Section 4 provided that the streets should not be obstructed longer than was nec- essary, and that the road must be construct- ed, and operated within a certain time. Sec- tion 5 required the company to keep the streets in repair between the rails of its tracks. Section 6 provided that all rights theretofore granted to the BeUeviUe Railway Company should be granted and renewed to the appellant, as its successor. Section 7 regulated the passenger fare. Section 8 pro- vided that, "upon the failure of said compa- ny to comply with any condition herein named, the said council shall have the power which it hereby expressly reserves to repeal the ordinance and revoke the consent here- by given." It also provides that the right herein granted shall be forfeited as to such portion of the streets as are not used within two years. Section 9: "If said company shall fail to operate the said horse railroad regularly for a period of thirty days, or fail to run a cut over said road to pass a given point at every fifteen minutes at regular intervals in the day time, unless said failure is caused by accident to its property in said city or its route therein, the rights and privileges hereby granted shall at once cease and determine, and imless said company within sixty days there- after shall remove its tracks, turnouts and switches from the streets then occupied by said railroad, and put said streets in good repair, the said tracks, turnouts and switches shall be forfeited to said city."' Another ordinance, passed October 4,1886, required that the com- pany should ran its cars where its track passed any railroad depot, so as to make connec- tion with passenger trains. Another ordi- nance, passed July 21, 1890, required that the company should run a car east froiu its west terminus at half past 9 and half past 10 ,)'clock every night, and from its east termi- nus at 10 and 11 o'clock every night. The appellant, on the 7th day of October, 1886, made and executed its trust deed to J. D. Perry and L. G. McNair on all of its property, privileges, etc., to secure $25,000 of bonds issued by the company for the con- struction and equipment of its road, which drew 6 per cent, interest, payable semiannu- ally. No interest having been paid on the bonds, the trustees, on the 11th day of Sep- tember, 1891, filed a bill in the circuit court of St Clair county to foreclose said trust deed, declaring the whole debt due under the provisions of the trust deed, averring the in- solvency of the company, and making the company, John Thomas, who was alleged to be the sole owner of the bonds and coupons, and the city of Belleville, parties defendant (the latter on the ground that it had threat- ened, and was threatening, to tear up and destroy the track of the company), prayed for a strict foreclosure, the appointment of a re- ceiver, and asked for a writ of injunction to restrain the city of Belleville from execut- ing its threats. A temporary injunction was granted, and John Thomas was appointed receiver on the 21st of September, 1891, and he took possession of and operated the road. Thomas soon resigned, and Ryder was there- after appointed, and he continued to operate the road. Prior to the filing of the bill, com- plaint was made by the city that the com- pany was not keeping the track in repair; and on the 18th day of June, 1891, the presi- dent of the company was served with writ- ten notice to repair at once the track along Main, Illinois, and Charles streets. At a meeting of the city council, on the 8th day of September, 1891, it was ordered that the offi- cers of the company be served with notice to appear at a council meeting to be held September 21st, to show cause why the ordi- nance granting the company the right to lay Its track and operate its road should not be repealed. Notice was served on the com- pany on the 10th day of September. At the meeting on September 21, 1891, an ordinance was offered repealing all ordinances relating to the rights and privileges granted to the appellant; but the consideration of the same was postponed until a meeting of the coun- cil on the 4th day of January, 1892, when it was taken up and passed, at which time, as heretofore stated, tha road was in the hands of the receiver. 310 STREET RAILWAYS. The repealing ordinance, after referring to and reciting those portions of the ordinances heretofore mentioned, granting rights and privileges to the company, and imposing cer- tain duties, and to the powers reserved of repealing the same, provides as follows' •inasmuch, therefore, as the Citizens' Horse- Railway Company did not reasonahly comply with the duties and obligations imposed by sections 5 and 9 of said Ordinance No. 185, nor with the duties and obligations imposed by Ordinances Nos. 275, 201, 446 and 171, therefore, be it ordained by the city council of the city of Belleville, Illinois: "Section 1. That Ordinances Nos. 446, 185, 171, 201 and 275, and all ordinances In re- lation to the Citizens' Horse-Railway Com- pany, except Ordinance No. 287, be, and the same are hereby, repealed, and all the rights and privileges by said ordinances granted, are hereby revoked. "Sec. 2. That the city clerk be instructed to notify the said Citizens' Horse-Railway Company to remove its tracks, switches and turnouts from the streets of the city of Belle- ville, within sixty days after the passage of this ordinance. "Sec. 3. That if said tracks, switches and turnouts be not removed within sixty days after the passage of this ordinance, and such notice shall have been given, as is provided in section 2 of this ordinance, that the same are hereby declared forfeited to the city of Belleville, and the street inspector be in- structed to remove the same." On the 16th day of March, 1892, the city of Belleville filed its petition in the foreclosure suit, averring that the company had not com- plied with the ordinances of the city, whei'e- fore it had passed the repealing ordinance above noted, which had not been observed by the company; and it concluded with the following prayer: "In consideration of the premises, yom- petitioner asks leave of this honorable court to remove the tracks, tm-n- outs, switches, etc., of said Citizens' Horse- Railway Company or said street railway from the streets of said city of Belleville." A motion made by the complainants in the foreclosure proceeding to strike the petition from the files was overruled by the court. On the 31st day of March, 1892, the city of Belleville filed its answer to the original bill, denying all the material allegations of the bill, except that part charging that it threat- ened and intended to tear up and remove the track of the company, which it averred, and affirmed its right to ao under and by virtue of its ordinances. The company and trus- tees answered the petition of the city of Belleville, denying the facts in it stated, and also the right of the city to repeal said or- dinance and remove the tracks, and aver- ring that the remedy, if any, was at law. The answer also averred that it was con- templated to change the motive power, and put in an electric line, and retv-ir and renew the old line; that, if that was not permitted. then that the Citizens' Horse-Railway Com- pany, or those interested in it, were ready and willing to comply with every condition contained m ordinances under which said road is now being operated; that the earn- ings of the Citizens' Horse-Railway Company are not sufficient to make repairs on said road, but, if the court required it, the Citi- zens' Horse-Railway Company is ready and willing to give a good and suflicient bond, to be approved by the court, in such an amovmt as it might determine, conditioned for the faithful performance of all the con- ditions and obligations contained in said or- dinances, and to improve, repair, and keep in constant repair, the said road, tracks, cars, etc. The trustees and the railway company, after the cause wa^at issue, moved the court to refer the whole matter to the master to state the account of indebtedness, and also to take evidence on the petition, and to re- port the same to the court, which motion was overruled; whereupon the same parties moved that a jury be called to try the issue on the petition, which motion was also over- rtlled. The cause was heard on the bill for foreclosure, answer, and replication, and also upon the Intervening petition of the city of BeUeviUe, and the answers of Perry and McNair, the trustees, and of the Citizens' Horse-Railway Company thereto, and the replications of the city of Belleville to such answers, and the evidence. The findings of the court were, in sub- stance, as follows: That the Citizens' Horse Railway Company, for a long time, failed to operate its street railway in compliance with the terms and conditions under which the company had a right to operate a road in the city of Belleville, and that said com- pany also failed to keep its track and roadbed in proper and good repair; that it was noti- fied to appear and show cause why its rights and privileges under the ordinances of the city should not be revoked; that the repeal- ing ordinance was passed as alleged; and that the company had failed to remove its tracks, and that the tracks are out of repair, and in bad condition, etc.; that said trust deed was a valid lien on all the property rights, etc., of the railway company; that the trustees were entitled to a decree of fore- ^ closure for the entire debt, w^hich was found to be $33,250, all of which debt is due to George Atterbury; that the company is in- solvent, and the property not of the value of the debt; and that tlie property would be taken for the debt, and the debt discharged, and that no benefit would arise from a sale being made, — from which findings the court decreed: First. That the Citizens' Horse Rail- way Company take up and remove its tracks from the streets of the city of Belleville with- in 60 days from May 2, 1892, and, on failure to do so, the city is authorized and empower- ed to remove such tracks, etc. Second. It is decreed that the receiver pay certain ex- penses made by him out of funds in his STliEET RAILWAYS. 311 hands, or that may come to his hands, which are declared a prior lieu to the bonded indebt- edness. Third. That the company pay George Atterbury, the sole owner of the bonds, $33,250, within three months from the date of the decree, and certain other small •mounts to otlier parties; whereupon, if paid, the trustees are to reconvey the prop- erty to the company, but, on default, the com- pany to be forever barred, and George Atter- bury to get the title to and possession of the road from any one in possession tliereof, on the production of a certified copy of the de- cree, under penalty of contempt for any one failing to comply, and the company to make him a deed of conveyance for "each and all of its property, both real and personal, pow- ers, rights, and privileges, and franchises heretofore described as belonging to said company." The Citizens' Horse-Railway Company ap- pealed to the appellate court, and assigned the following errors: (1) The circuit court erred in deciding that the city could, before any judicial examination or ad.iudication that the railway company had violated any of the rights, powers, privileges, and fran- chises granted it by the ordinances of said city to operate its railway, pass an ordinance revoking such rights, powers, privileges, and franchises, and forfeiting the property of said railway company to said city. (2) The circuit court erred in decreeing a forfeiture against the railway company in. this pro- ceeding, and in not striking the petition of the city from the files. (3) The oircuit court erred In finding and decreeing a forfeiture against the Citizens' Horse-Railway Com- pany on the evidence of the record. (4) The circuit court erred in deciding that there was any evidence to authorize a forfeiture un- der the grounds specifically declared as au- thorizing a forfeiture by Ordinance No. 185. (5) The circuit court erred in improperly ad- mitting all the evidence as to the condition of the roadbed and tracks after September 22, 1891, the date when the receiver took possession of the railway. (G) The circuit court erred in denying the motion to im- panel a .iury to hear and determine all the questions of fact raised on the petition filed by the city, and in refusing to refer said pe- tition, as well as the original suit, to the master in chancery, to take and report all evidence offered by either party to the court before final hearing. (7) The circuit court erred in decreeing a forfeiture without the railway company or the owner of the mort- gage bonds being made parties to the peti- tion filed by the city. (8) The circuit court erred in holding that the city attorney had any power or authority from the city council to file the petition on which a forfeiture was declared. The judgment of the appellate court reversed that part of the decree from which the appeal was prosecuted, and re- manded the cause, with directions to strike the petition of the city of Belleville from the files (Citizens' Horse Ry. Co. v. City of Belle- ville, 47 111. App. 388); and therefore the city appealed to this court. August Barthel, James A. Farmer, and Turner & Holder, for appellant. J. M. Hamil, for appellee. BAKER, J. (after stating the facts). In our opinion, the evidence establishes these fi. ,: That, for a period of more than one year prior to its going into the hands of a re- ceiver, the Citizens' Horse-Railway Compa- ny, appellee, did not comply with the pi-ovl- sions of section 5 of Ordinance No. 185, by keeping in repair so much of the streets as is between the rails of its tracks. That during said year or more It fi-equently, if not contin- uously, failed to operate its railroad regular- ly for a period of 30 days, thereby violating one of the requirements of section 9 of the ordinance; and It Is to be noted that what this provision denounces Is not an entire fail- ure to operate the road in any way whatever for a period of 30 days, but a failure "to op- erate the road regularly for a period of thir- ty days." The word "regularly" Is defined as meaning in a regular manner; In a way or method accordant to rule or established mode; In uniform order; methodically; in due order. And such is the signification at- tached to the word in its common and ordi- nary use. The appellee had. In violation of another requirement of section 9, failed for said period of more than a year to run a car over its road, or any portion of it, so as to pass a given point at least every 15 minutes, at regular intervals. In the daytime, and such failure was not the result of an accident to its property or to Its route. That appellee, during said period, wholly failed to comply with the provisions of Ordinance No. 275, which required it to run a Car starting from the terminus of its railroad in tlie west end at half past 9 o'clock every night, a car start- ing from the railroad's eastern terminus, at the Louisville & Nashville Railroad depot, at 10 o'clock every night, and a car starting from said west end at half past 10 evei-y night, and a car starting from said eastern terminus at 11 o'clock every night. That, since appellee had been in charge of a receiv- ership, neither of its receivers had complied with, or attempted to comply with, any of the provisions above referred to, of the ordi- nances of the city. That on June 18, 1891, the city of Belleville served a written notice on appellee, and on divers and sundry occa- sions, both prior and subsequent to that date, notified It of Its failures to conform to the provisions and requirements of the ordinan- ces, and requesting it to comply therewith. That a written notice was served on appellee to appear before the city council of the city of Belleville, at a designated time and place, and show cause why the city should not avail Itself of its right to repeal Ordinance 185 and Ordinances 171, 275, and 446, and re- 312 8TEEET RAILWAYS. voke the rights thereby granted. And that appellee, by its agents and attorneys, did ap- pear before the city council; and, failing to show any reasonable cause or excuse in the premises. Ordinance No. 315, repealing Ordi- nances numbered 171, 185, 201, 275, and 446, was passed, and appellee ordered to take up its tracks, switches, etc., within 60 days. It appears from the findings and decree of the circuit court that it found the above- stated facts substantially as r/e have found them. The appellate court reversed the de- cree; and counsel for appellee assumes that it found the facts otherwise, and the claim is made that the findings of the appellate court as to questions of fact, and mixed ques- tions of law and fact, are final, and not sub- ject to review in this court. Such is not the law. In chancery cases the finding of facts toy the appellate court does not bind the su- preme court, and in reviewing chancery cases the supreme court will determine con- troverted questions of fact from the evidence found in the record. Fanning v. Russell, 94 111. 386; Hayward v. Merrill, Id. 349; Railroad Co. v. Healy, Id. 416; Stillman v. Stillman, 99 111. 196; Moore v. Tierney, 100 111. 207; French v. Gibbs, 105 111. 523. Counsel for appellee also confounds, in his printed brief, licenses and contract rights with franchises, and the result is that he arrives at what we deem a wrong conclusion in respect to the present controversy. The contentions of appellee in this behalf are that It derived from the ordinance of the city its franchises, or part of its franchises; that the city had no judicial authority to declare and enforce a forfeiture of its franchises; that a court of chancery had no jurisdiction so to do; and that a cause of forfeiture of a franchise cannot be taken advantage of or enforced against a corporation collaterally or Incidentally, or in any other mode than by a direct proceeding for that purpose, at law, by quo warranto against the corporation. Blackstone says (book 2, c. 3, *37) that a franchise is a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject; that, being derived from the crown, it must arise from the king's grant, or be held by prescription, which pre- supposes a grant. In Chicago City Ry. Co. v. People, 73 111. 541, this court said that cor- porate franchises in the American states em- anate from the government or the sovereign power, owe their existence to a grant, or, as at common law, to prescription, which pre- supposes a grant, and are invested in indi- viduals or a body politic. The proposition which is the foundation of appellee's claim was expressly decided, and decided adverse- ly to such claim, in the case last cited. It was there held that where a street-railway company is incorporated under an act of the legislature, with power to construct, main- tain, and operate a railroad in a city, upon the consent of the city, and in such manner and upon such conditions as the city may im- pose, and the city, by ordinance, grants the privilege of constructing and operating the same upon a certain street, the grant by the city is a mere license, and not a franchise. To the same effect are the subsequent eases of Board of Trade v. People, 91 111. 80; Rail- road Co. V. Dunbar, 95 111. 571; City of Quin- cy V. Bull, 106 111. 337; and Chicago Mu- nicipal Gaslight & Fuel Co. v. Town of Lake, 130 111. 42, 22 N. E. 616. And in this latter case it was also held, that the privilege of the use of the streets of a city or town, when granted by ordinance, is not always a mere license, and revocable at pleasure; that if the grant is for an adequate consideration, and is accepted by the grantee, then the ordinance ceases to be a mere license, and becomes a valid and binding contract; and that the same result is reached where, prior to its revocation, the license is acted upon in some substantial manner, so that to revoke it would be inequitable and unjust. Appellee places much reliance upon the de- cision of the supreme court of Wisconsin in State V. Madison St Ry. Co., 72 Wis. 612, 40 N. W. 487, where it was held that a munic- ipal ordinance granting to a street-railway corporation a franchise to occupy and use public streets, for the purposes of Its rail- way, has the force and effect of a statute of the state; and that, for a violation of the provisions of such ordinances, an action could be maintained to vacate the charter or an- nul the existence of such corporation. The decision was based upon a statute of that state, and Cannot be regarded as authority here; but, had It been decided on common- law grounds, there is nothing in the case that would justify us in overturning the settled law of this state, as announced in a long line of decisions. Ordinance No. 185, passed December 21, 1885, was a contract, and one under which appellee had vested rights; but it contained conditions subsequent, which made it deter- minable under certain circumstances. It was provided In section 8 of the contract that, "upon the failure of said company to comply with any condition herein named, the said council shall have the power which It hereby expressly reserves to repeal the or- dinance and revoke the consent hereby giv- en"; and, in section 9, that In certain speci- fied contingencies "the rights and privileges hereby granted shall at once cease and deter- mine." It was In plain violation of these conditions subsequent that appellee did not keep the streets in repair between the rails of Its ti-acks; that it failed to operate the horse railroad regularly for numerous pe- riods of at least 30 days each; and that it failed, for more than a year prior to the ap- pointment of a receiver, to run a car over its road, or any portion of It, so as to pass a given point at least every 15 minutes, at regular intervals, in the daytime,— when such failures were not the results of accidents to its property or its route. These matters were STEEET RAILWAYS. 313 all expressly named In the contract as con-