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Louis Ry. Co. v. Dettlebach, 239 U. S. 588, [er from liability for negligently damaging 593, 594, 36 Sup. Ct. 177, 60 L. Ed. 453; the live stock of a consignee, after it had Southern Ry. v. Prescott, 240 U. S. 632, 36 been delivered, on the ground that a claim Sup. Ct. 469, 60 L. Ed. 836. in writing for the damage, duly verified, had not been presented within five days.

My reasons for dissenting, stated as briefly as may be, are as follows:

It is shown by the opinion of the court that the consignee, a partnership of three members, was bound by the bill of lading to unload the horses at destination.

The consignee, being notified by the carrier as to the probable time of the arrival of the car, on the day before it arrived, paid what was supposed to be the full amount of the freight charges, and two members of the partnership were at the station at 3 o'clock in the morning to receive and unload it.

[2] In Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Dettlebach we pointed out that the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat. 584) enlarged the definition of "transportation" so as to include "cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation and transfer in transit, ventilation, refrigeration, or icing, storage and hauling of property transported," and we said from this and other provisions of the act "it is evident that Congress recognized that the duty of carriers to the public included the performance of a variety of services that, according to the theory of the common law, were separable from the carrier's service as carrier, and, in order to prevent overcharges and discriminations from being made under | brake, the engine was cut off and the conthe pretext of performing such additional services, it enacted that so far as inter*state carriers by rail were concerned the entire body of such services should be included together under the single term 'transportation' and subjected to the provisions of the act respecting reasonable rates and the like."

In the instant case, when injured, the animals were awaiting removal from the car through a cattle chute alleged to be owned, operated and controlled by the railroad. If its employés had then been doing the work of unloading there could be no doubt that transportation was still in progress; and we think that giving active charge of the removal to respondents, as agreed, was not enough to end the interstate movement. The animals were in the car; no adequate time for unloading had transpired. The carrier had not fully performed the services incident to final delivery imposed by law. These included the furnishing of fair opportunity and proper facilities for safe unloading although the shippers had contracted to do the work of actual removal. See Hutchinson on Carriers, §§ 711, 714, 715.

Petitioner's request for an instructed verdict in its behalf should have been granted. The judgment below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.

Mr. Justice CLARKE dissenting.

I greatly regret that I cannot concur in the opinion and judgment of the court in this case, but I cannot consent to share in what seems to me a very strained construction of a definition in the Hepburn Act (34 Stat. 584, c. 3591, § 1 [Comp. St. § 8563]) which will result in keeping alive a bill of lading, with the effect of excusing the carri

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When the train came, the senior member of the consignee stood in the cattle chute with the conductor, while the latter was placing the car for unloading and approved as satisfactory the position in which it was placed. Thereupon a brakeman set the

ductor went away and left the car in the sole custody of the consignee, after saying to its representative, "You had better get them out as soon as you can as they have been on the road a good while and are tired and hungry." Two members of the partnership, consignee, went to work at once to unload the horses, but it was necessary to get some boards to make the bridge from the car to the chute safe, and in about half an hour, when the two were in the act of leading two horses from the car, other cars were negligently thrown against it and caused the damage sued for.

I dissent from the opinion of the court because I agree with the three New York courts that the undisputed facts thus stated show that, the transportation was ended and the delivery of the stock was so completely made as to end all liability of the carrier under the bill of lading, before the negligence of the company occurred which caused the damage complained of.

$460

What constitutes delivery of goods or of live stock by a carrier is usually a mixed question of law and fact, but *where, as here, the facts are not disputed, it is a question of law.

What more was there for the carrier to do,-what more could it have done to make more complete the delivery necessary to fulfill its obligation as a carrier? The journey was ended, the freight charges were paid, and the car was placed on a side track in an appropriate place and position for unloading, which was approved by the consignee. It had been accepted by two members of the partnership, consignee, and had passed into their exclusive custody a full half hour before the accident. No assistance was asked for or needed after the conductor delivered the car and went away and thereafter the

(39 Sup.Ct.)

I cannot find justification, in the sections cited, for such a statement of the law as is here made.

carrier owed to the consignee only the duty al removal. See Hutchinson on Carriers, §§ which it owed to any property lawfully upon 711, 714, 715." or near to its tracks-not to negligently or willfully injure it, and it was for violation of that duty, not for failure to discharge duties imposed by the bill of lading, that this suit was instituted. The case is one of side track delivery, the equivalent of the familiar delivery of a car to an "industrial track" or "team unloading track" of a railroad, with possession taken by the consignee before the damage was done.

To the weighty authority of the New York courts which decided in this case that the delivery was complete before the damage was done, may be added, a few from many, the decisions of the Supreme Courts-of Michigan, in a strikingly similar case, but with not so complete a delivery, in Brown v. Pontiac, etc., R. R. Co., 133 Mich. 371, 94 N. W. 1050; of Illinois, in Gratiot Street Warehouse Co. v. St. Louis, etc., R. R. Co., 221 Ill. 418, 77 N. E. 675; of North Carolina, in Reid v. Southern Railway Co., 149 N. C. 423, 63 S. E. 112; of Georgia, in Kenny Co. v. Atlanta, etc., R. R. Co., 122 Ga. 365, 50 S. E. 132; and see Hedges v. Railroad Co., 49 N. Y. 223.

The definition of "transportation" in the Hepburn Act (34 Stat. 584), relied upon in the court's opinion, seems to me quite irrelevant. That provision was incorporated into the act to prevent unjust discrimination by carriers in terminal delivery charges, as the context and the history of the act abundantly show. It defined "transportation," but did not define what should constitute delivery to a consignee; that was left untouched and is governed by the prior decisions of courts and by those which have been developed since.

Equally beside the question involved seems to me the decision in Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Dettlebach, 239 U. S. 588, 593, 594, 36 Sup. Ct. 177, 60 L. Ed. 453, cited in the opinion of the court. The question there under consideration was, whether when goods carried to destination were lost, after they had been held more than a month uncalled for, the liability of the carrier was to be determined by the terms of the bill of lading or by the more limited liability of a warehouseman. Obviously' there was no question in the case as to what constituted delivery, for there was no pretense of delivery, actual or constructive, and therefore the decision cannot be of serv ice in determining this case.

Section 711 deals with the obligation to unload carload freight, and, after saying that it is "the uniform rule and custom in this country" for the consignee to unload, the only other relevant statement of the writer is:

"All, therefore, that can be required of the railroad company, is that it shall place the cars where they can be safely and conveniently unloaded."

This the carrier in the case before us had done to the satisfaction and acceptance of the consignee before the accident complained of.

Section 714 deals with the liability of the carrier pending removal (delivery) of the goods, and says:

"During this reasonable time [for delivery] the liability of the carrier remains unchanged; but so soon as it has elapsed he no longer stands in the relation of carrier to the goods. but in that of an ordinary bailee for hire."

The "reasonable time" here referred to is palpably that necessary for the carrier to wait before its obligation becomes that of a warehouseman when the consignee does not appear to claim the shipment; it is not ap│plicable to the time for unloading after the property has been accepted by the consignee. Section 715 deciares that:

"If the consignee is bound to unload the goods himself from the car, it is the duty of the carrier to place the car where it can be unloaded with a reasonable degree of convenience and to furnish the consignee with safe and proper facilities for the purpose."

All of this the carrier in this case did, and the consignee not only approved as satisfactory, safe and proper, the position in which the car was placed and the facilities furnished for unloading it, but the delivery of the car was accepted and was in the actual possession and custody of the consignee for a very considerable time before the accident complained of happened. It was not in any attempt or effort on the part of the carrier to improve the unloading facilities or to assist the consignee that the damage was done, but it was the result of a tort, pure and sim

The opinion of the court in this case con- ple-of a negligent switching operation, encludes:

"The animals were in the car; no adequate time for unloading had transpired. The car rier had not fully performed the service incident to final delivery imposed by law. These included the furnishing of fair opportunity and proper facilities for safe unloading, although the shippers had contracted to do the work of actu

tirely independent of the delivery of the shipment, occurring a half hour after it had been accepted.

*The delivery having been completed and accepted by the consignee, the five-day limitation, so unreasonable in itself that it has been prohibited by congressional enactment (Act March 4, 1915, 38 Stat. 1196, c. 176, § 1

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[Comp. St. § 8604a]), has, in my judgment, | 5. CONSTITUTIONAL LAW 287-DUE PROno applicability to this case, and to bottom CESS-LICENSE TAXES. the conclusion announced upon the definition of "transportation" in the Hepburn Act is to convert what was intended for the protection of shippers of property in interstate commerce, into an instrument of injury and injustice.

For the reasons thus stated I dissent from the opinion and judgment of the court.

Mr. Justice MCKENNA and Mr. Justice BRANDEIS concur in this dissent. Mr. Justice DAY also dissents.

(250 U. S. 459)

AMERICAN MFG. CO. v. CITY OF ST.
LOUIS. †

(Argued April 30, 1919. Decided June 9, 1919.)

No. 365.

St. Louis ordinance enacted under Rev. St. Mo. 1909, § 9857, which in addition to an ad valorem property tax required every manufacturer to take out a license and to pay a license tax of $1 on each $1,000 of sales made, is not invalid under amendment 14, as depriving a manufacturer, which maintained factories in other states of its property, without due process of law, though the tax was collected for goods manufactured in St. Louis, but which were removed from the state before sale.

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*Messrs. S. Mayner Wallace and Shepard 366(5)—FederaL COURTS-CON-Barclay, both of St. Louis, Mo., for plaintiff STRUCTION OF STATE STATUTES.

1. COURTS

The construction of a state statute made by the highest state court, in so far as it determines the meaning of the statute, is binding upon the federal Supreme Court.

2. COURTS~366(5)—Federal Courts-CONSTRUCTION OF STATE STATUTE.

The question whether a state law or tax imposed thereunder deprives one of rights secured by federal Constitution depends, not upon the form of the act, nor upon how it is construed or characterized by the state court, but upon its practical operation and effect.

3. LICENSES5-OCCUPATION TAXES-AUTHORITY OF STATE.

Unless some particular interference with federal right is shown, the states are free to lay privilege and occupation taxes, and under such right a state or a city, acting under state authority, may impose a license tax in the nature of an excise upon the conduct of a manufacturing business in the city.

4. COMMERCE 70-INTERSTATE COMMERCE LICENSE TAXES-CORPORATE EARNINGS.

in error.

Messrs. Everett Paul Griffin and Charles H. Daues, both of St. Louis, Mo., for defendant in error.

Mr. Justice PITNEY delivered the opinion of the Court.

The question is whether an ordinance of the city of St. Louis levying against manufacturers, especially as against plaintiff in error, a West Virginia corporation, a tax imposed as a condition of the grant of a license to carry on a manufacturing business in that city, but the amount of which is ascertained by and proportioned to the amount of sales of the manufactured goods, whether sold within or without the state, and whether in domestic or interstate commerce, is void as amounting to a regulation of commerce among the states and thus entrenching upon the power of the national Congress under article 1, § 8, of the Constitution, or as amounting to a taking of plaintiff's property without due process of law, in contravention of the Fourteenth Amendment.

St. Louis ordinance enacted under Rev. St. Mo. 1909, § 9857, authorizing cities to license, A statute of the state (Rev. Stat. Mo. 1909, tax, and regulate for local purposes the occupations of merchants and manufacturers, which § 9857) authorizes cities to license, tax and in addition to an ad valorem property tax re-regulate for local purposes the occupations quired every manufacturer to take out a license of merchants and manufacturers and to and to pay a license tax of $1 on each $1,000 of sales made, is not invalid under Const. art. 1, § 8, as a burden upon or regulation of interstate commerce, though the tax was collected for goods manufactured in St. Louis, but which were removed from the state before sale, for the tax under the construction of the ordinance by the highest Missouri court was limited to goods manufactured within St. Louis; time of payment merely being deferred until they should be sold.

graduate the amount of annual license imposed upon them in proportion to the sales made by such merchant or manufacturer during the year next preceding any fixed date. Pursuant to this authority the city, by the ordinance in question, in addition to an ad valorem property tax, requires every manufacturer in the city before doing or offering to do business as such to take out a license, and at a specified time to render a sworn

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

† Petition for rehearing pending.

*460

*461

(39 Sup.Ct.)

statement of the aggregate amount of sales made by him during the year next preceding the first Monday of June, and within a short time thereafter to pay a license tax of $1 on each $1,000 of sales made. Failure or refusal to deliver the required statement or to pay the license tax within the time specified is made a misdemeanor punishable by fine and the imposition of a double tax; making a false statement under oath is made punishable by forfeiture of the license in addition to a fine.

In a previous case (Manufacturing Co. v. St. Louis, 238 Mo. 267, 278, 142 S. W. 297), the Supreme Court of the state held that this tax did not apply to sales made of goods shipped from plaintiff's factory in the state of New York directly to 'purchasers in Texas, but only to sales from its St. Louis factory. In the present case, which was a suit brought in a state court by plaintiff in error against the city to recover so much of a disputed tax as is measured by sales of goods manufactured by plaintiff in the city, afterwards removed to storage warehouses outside of the state, and later sold from these warehouses to purchasers in states other than Missouri, the trial court at first gave judgment in favor of plaintiff on this item, and this having been reversed by the Supreme Court of the state (270 Mo. 40, 192 S. W. 402), a new trial resulting in favor of the city, and the second judgment having been affirmed (Mo., 198 S. W. 1183), the case comes here on writ of error.

[1, 2] In construing the statute and ordinance and defining the nature and effect of the tax, the Supreme Court expressed itself as follows (270 Mo. p. 45, 192 S. W. 403):

tion is a tax upon the privilege of pursuing the business of manufacturing these goods in the city of St. Louis; that when the goods were manufactured the obligation accrued to pay the tion when it should be liquidated by their salo amount of the tax represented by their producby the manufacturer; that their removal from the city of St. Louis and storage elsewhere, whether within or without the state, worked no change in this obligation; that their sale by the respondent wherever they may have been stored at the time, whether it was done through its home office in New York or the office of its factory in St. Louis, should have been reported in its return to the license collector of the city of St. Louis and the amount included in fixing the amount payable on account of its license tax."

As a matter of construction, this, upon familiar principles, is conclusive upon us. But, as has been held very often, the question whether a state law or a tax imposed thereunder deprives a party of rights secured by the federal Constitution depends not upon the form of the act, nor *upon how it is construed or characterized by the state court, but upon its practical operation and effect. St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350, 362, 35 Sup. Ct. 99, 59 L. Ed. 265; Mountain Timber Co. v. Washington, 243 U. S. 219, 237, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642; Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 294, 38 Sup. Ct. 126, 62 L. Ed. 295.

[3-5] The admitted facts show that the operation and effect of the taxing scheme now under consideration are correctly described in what we have quoted from the opinion of the state court. No tax has been, or is to be imposed upon any sales of goods by plaintiff in error except goods manufactured by it in St. Louis under a license conditioned for the payment of a tax upon the amount of the sales when the goods should come to be sold. The tax is computed according to the amount of the sales of such manufactured goods, irrespective of whether they be sold within or without the state, in one kind of commerce or another; and payment of the tax is not made a condition of selling goods in interstate or in other commerce, but only of continuing the manufacture of goods in the city of St. Louis.

"It is not disputed that under the broad provision of its charter the city of St. Louis has the power to license and tax manufacturers within its limits; nor that the power includes the right to impose a tax upon the transaction of their business. Adopting substantially the definition we have quoted from the statute, it has, by ordinance, forbidden them to pursue their business within the city *without procuring a license, and has prescribed the additional tax they shall pay for that purpose, which is graduated to accord with the amount of business they shall carry to the point of realizing the profit or liquidating the loss by the sale of the product of their work. They may only buy and sell in pursuance of their business as manufacturers. That his right to pursue this business is the one thing he receives as compensation for this tax is evident; and that the method of fixing its amount by the amount that he realizes from the licensed activity is a just and equitable one is not disputed; nor is the inherent justness and fairness of postponing the payment until the realization of the result of the work. The tax is none the less a tax upon the business of manufacture pursued in the city of St. Louis under the protection of The city might have measured such tax by the laws of this state and the ordinances of a percentage upon the value of all goods the city. We hold that the tax in ques- manufactured, whether they ever should

There is no doubt of the power of the state, or of the city acting under its authority, to impose a license tax in the nature of an excise upon the conduct of a manufacturing business in the city. Unless some particular interference with federal right be shown, the states are free to lay privilege and occupation taxes. Clark v. Titusville, 184 U. S. 329, 22 Sup. Ct. 382, 46 L. Ed. 569; St. Louis v. United Railways Co., 210 U. S. 266, 276, 28 Sup. Ct. 630, 52 L. Ed. 1054.

#464

come to be sold or not, and have required | are so obviously distinguishable that particpayment as soon as, or even before, the goods ular analysis is unnecessary.

left the factory. In order to mitigate the burden, and also perhaps, to bring merchants and manufacturers upon an equal footing

in this regard, it has postponed ascertainment and payment of the tax until the manu

Judgment affirmed.

(250 U. S. 376)

facturer can bring the goods into market. A DE GANAY v. LEDERER, Collector of Insomewhat similar method of postponing payternal Revenue.

No. 319.

ment has been pursued for many years by (Argued April 23, 1919. Decided June 9, 1919.) the federal government with respect to the internal revenue tax upon distilled spirits. Rev. Stat. §§ 3251, 3253 (Comp. St. §§ 5985, 5988); Act August 27, 1894, c. 349, § 48, 28 Stat. 509, 563 (Comp. St. § 5986).

To the suggestion that the tax burdens the mercantile rather than the manufacturing business, because it would be possible for one to manufacture goods to an unlimited extent and pay no tax unless they were sold, or to sell goods and be required to pay the tax although they were not manufactured by the seller, it is sufficient to say-answering the second point first (a) that, according to the state law as laid down by the court of last resort in this case, a manufacturer has no right to sell goods except those of his own manufacture; and (b) it is not to be supposed that, for the purpose of evading a tax payable only upon the sale of his goods, a manufacturer would pursue the ruinous policy of making goods and locking them up permanently in warehouses. In the outcome the tax is the same in amount as if it were measured by the sale value of the goods but imposed upon the completion of their manufacture. The difference is that, for reasons of practical benefit to the taxpayer, the city has postponed payment until convenient means have been furnished through the marketing of the goods.

In our opinion, the operation and effect of the taxing ordinance are to impose a legitimate burden upon the business of carrying on the manufacture of goods in the city; it produces no direct burden on commerce in the goods manufactured, whether domestic or interstate, and only the same kind of incidental and indirect effect as that which results from the payment of property taxes or any other and general contribution to the cost of government. Therefore it does not amount to a regulation of interstate commerce. And, for like reasons, it has not the effect of imposing a tax upon the property or the business transactions of plaintiff in error outside of the state of Missouri, and hence does not deprive plaintiff in error of its property without due process of law.

Our recent decisions cited in opposition to this view, Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 297, 38 Sup. Ct. 126, 62 L. Ed. 295, and Looney v. Crane Co., 245 U. S. 178, 188, 38 Sup. Ct. 85, 62 L. Ed. 230, and other cases of the same kind referred to therein,

1. STATUTES

ING OF Words.

188-CONSTRUCTION-MEAN

Unless the contrary appears, words of a statute are presumed to be used in their ordinary and usual sense, and with the meaning commonly attributable to them. 2. INTERNAL REVENUE "PROPERTY" STOCKS.

BONDS,

7- INCOME TAXMortgages,

AND

Within Act Oct. 3, 1913, § 2a, subd. 1, providing for tax on income from all property, bonds, mortgages, and certificates of stock are "property," and not mere evidences of ownership of interests which are property.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Property.]

-

3. INTERNAL REVENUE 7 INCOME TAX"PROPERTY WITHIN UNITED STATES."

from which, though it is owned by a nonresident "Property within the United States," income § 2a, subd. 1, includes stocks and bonds of coralien, is subjected to tax by Act Oct. 3, 1913, porations organized under its laws, and bonds and mortgages secured on property in the state; the certificates of stock and the bonds and mortgages being in the state, with a company holding them under power of attorney, not only to collect interest and dividends, but to sell and reinvest, the maxim of "mobilia sequuntur personam" not applying to give the property situs at owner's domicile.

Certificate from the United States Circuit Court of Appeals for the Third Circuit.

Action by Emily R. De Ganay against Ephraim Lederer, Collector of Internal Revenue. There was a judgment for defendant, and the case was removed to the Circuit Court of Appeals, which certifies a question. Question answered in the affirmative.

Messrs. James Wilson Bayard and Frank P. Prichard, both of Phildelphia, Pa., for plaintiff.

Mr. Assistant Attorney General H. La Rue Brown, for defendant.

*Mr. Justice DAY delivered the opinion of the Court.

The Act of October 3, 1913, c. 16, § 2a, subd. 1, 38 Stat. 166, provides:

"That there shall be levied, assessed, collected and paid annually upon the entire net income

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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