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writ of certiorari (245 U. S. 649, 38 Sup. Ct. [ 853, L. R. A. 1915E, 665; Missouri, Kansas 12, 62 L. Ed. 530) under section 237 of the & Texas Ry. Co. of Texas v. Schnoutz, 245 U. Judicial Code (Act March 3, 1911, c. 231, 36 S. 641, 38 Sup. Ct. 221, 62 L. Ed. 527 (per Stat. 1156), as amended by Act of September curiam). 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214).

[2] The provision in the original bill of lading limiting to six months the time within which suit may be brought, not being unreasonable (Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U. S. 657, 672, 673, 33 Sup. Ct. 397, 57 L. Ed. 690), was valid; and as the original bill of lading remained binding, the lower *courts erred in denying it effect. The judgment of the Court of Civil Appeals must therefore be reversed.

[1] The final decision below was rendered two days before the decision of this court in Missouri, Kansas & Texas Ry. Co. v. Ward, 244 U. S. 383, 37 Sup. Ct. 617, 61 L. Ed. 1213. There one of the same railroads had, as connecting carrier, issued a second bill of lading to shippers of live stock, who had received from the initial carriers a through bill of lading on an interstate shipment. But there the carriers relied for defense upon a clause in the second bill of lading, which was not contained in the first. We held that the second bill of lading was void, since under the Carmack Amendment the several carriers must be treated, not as independent contracting parties, but as one system; and that the connecting lines become in effect mere agents whose duty it is to forward the goods under the terms of the contract made by their principal, the initial carrier, and that they are prevented by law from varying the terms of that contract. Leatherwood contends that the principle upon which the case was decided is not applicable here, because there the carriers sought to avail themselves of the second bill of lading, while here they seek to ignore it; and he insists that the carriers are, by their conduct, estopped from asserting its invalidity. As stated in Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U. S. 190, 197, 36 Sup. Ct. 541, 60 L. Ed. 948, the parties to a bill of lading cannot waive its terms, nor can the carrier by its conduct give the shipper a right to ignore them. "A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aim- Mr. Justice McREYNOLDS concurring. ed." The bill of lading given by the initial I concur in the conclusion that the judgcarrier embodies the contract for transporta- ment below must be reversed. Circumstances tion from point of origin to destination; and disclosed by the record and not discussed in its terms in respect to conditions of liability the opinion, I think, require this result. But are binding upon the shipper and upon all the broad declaration that the parties to a bill connecting carriers, just as a rate properly of lading cannot waive its terms nor can the filed by the initial carrier is binding upon carrier, by its conduct, give the shipper the them. Each has in effect the force of a stat- right to ignore them goes beyond what is necute, of which all affected must take notice. essary to the decision and I am not prepared That a carrier cannot be prevented by estop- to assent to it as a proposition of law. pel or otherwise from taking advantage of *Suit was originally brought against the the lawful rate properly filed under the In- initial line (The Santa Fé) and connecting terstate Commerce Act is well settled. A ones-Texas & Pacific Ry. Co., and Missouri, carrier has, for instance, been permitted to Kansas & Texas Railway-the claim being collect the legal rate, although it had quoted based upon the implied obligation arising out a lower rate and the shipper was ignorant of of delivery and acceptance of the horses by the fact that it was not the legal rate. Texas the former for through interstate carriage. & Pacific Ry. Co. v. Mugg, 202 U. S. 242, 26 In his pleadings the shipper expressly denied Sup. Ct. 628, 50 L. Ed. 1011; Illinois Central validity of all bills of lading-one issued by Railroad Co. v. Henderson Elevator Co., 226 the Santa Fé and one by each of the petitionU. S. 441, 33 Sup. Ct. 176, 57 L. Ed. 290; ers. Of course, under the rule approved in Louisville & Nashville Railroad Co. v. Max- Missouri, Kansas & Texas Ry. Co. v. Ward, well, 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed. | 244 U. S. 383, 37 Sup. Ct. 617, 61 L. Ed. 1213,


[3] The record occupies 213 printed pages. Most of the matter which was included in it at the instance of petitioners, was clearly not required for a proper presentation of the questions submitted here. Much useless expense has been incurred; and both court and counsel have been subjected to the burden of examining much that is irrelevant. Section 1 of rule 8 of this court (32 Sup. Ct. vi) specitically provides that if portions of the record unnecessary to a proper presentation of the case are found to have been incorporated into the transcript by either party, the court may order that the whole or any part of the clerk's fees for supervising the printing and the cost of printing the record be paid by the offending party. Under the circumstances of this case it seems appropriate that the whole of this expense be borne by the petitioners; and it is so ordered.

Judgment reversed.

I am authorized to say that the CHIEF JUSTICE, Mr. Justice HOLMES, and Mr. Justice DAY concur in the above opinion.

Mr. Justice MCKENNA, Mr. Justice PITNEY, and Mr. Justice CLARKE dissent.



he could have relied upon the first bill; it does not follow that if, during transit, a connecting carrier declined to recognize the original agreement for through transportation and refused to proceed thereunder, he had no power to acquiesce, take possession of the animals and re-ship under another contract with such carrier not subject to avoidance by it. And if, in the present cause, in- Louis & Western Kailroad, at East St. Louis, Respondents delivered to the Toledo, St. stead of repudiating the bills of lading issued Ill., a carload of horses for transportation, by connecting roads he had relied upon them under a limited liability live stock contract or the question presented would be a very dif- bill of lading via petitioner's road, to themferent one, decision of which is not now de-selves at Suffern, N. Y., their home. Among manded. other things the contract provided:

(39 Sup.Ct.)

Mr. Justice VAN DEVANTER joins in this opinion.

(250 U. S. 465)

"That the said shipper is at his own sole risk and expense to load and take care of and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, (Submitted April 25, 1919. Decided June 9, except in the actual transportation of the same. 1919.) * That no claim for damages which may No. 342. accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or 1. CARRIERS 218(3) LIVE STOCK INTER- sued for in any court by the said shipper, unless STATE SHIPMENT-LIMITATION OF LIABILITY a claim for such loss or damage shall be made in -TIME FOR CLAIM. writing, verified by the affidavit of the said shipditor of the said carrier at his office in the city per or his agent, and delivered to the general auof Chicago, Ill., within five days from the time said stock is removed from said car or cars, and that if any loss or damage occurs upon the shall not be liable unless a claim shall be made line of a connecting carrier, then such carrier

A provision in a limited liability live stock contract or bill of lading for an interstate shipment, requiring presentation within five days from the time the stock is removed from the car or cars of claim for any loss or damage as a condition to recovery, is valid and controlling as to any liability of carrier arising from begin-in like manner, and delivered in like time, to ning to end of the transportation. some proper officer or agent of the carrier, on

218(10)-LIVE STOCK-LIMI- whose line the loss or injury occurs."

ERIE R. CO. v. SHUART et al.



Though a car containing an interstate shipment of horses had arrived at its destinatiou, and the consignees were proceeding to unload the animals through a cattle chute owned and operated by the carrier, the transportation was not complete, and, where the horses were injured when other cars were pushed against the one being unloaded, written claim of loss, made a condition to liability in bill of lading, must be given in order to support recovery against the carrier.

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

Mr. Justice Clarke, Mr. Justice McKenna, Mr. Justice Brandeis, and Mr. Justice Day dissenting.


*Mr. Thomas Watts, of Middletown, N. Y., for petitioner.

Mr. Reeves T. Strickland, of Washington, D. C., for respondents.

Action by John R. Shuart, Leo Shuart, and John R. Shuart, Jr., doing business under the name of John R. Shuart & Sons against the Erie Railroad Company. A judgment for plaintiffs (166 App. Div. 895, 150 N. Y. Supp. 1112) was affirmed (221 N. Y. 680, 117 N. E. 1084), and defendant brings certiorari. Reversed and remanded.

Mr. Justice McREYNOLDS delivered the opinion of the Court.


[1] Immediately after the car arrived at Suffern, petitioner placed it on a switch track opposite a cattle chute and left it in charge of respondents for unloading. By letting *down a bridge they at once connected the chute and car and were about to lead out four horses, when an engine pushed other cars against it and injured the animals therein. No written claim was made for the loss or damage as provided by the bill of lading; and when sued the carrier defended upon that ground. Respondents maintain that transportation had ended when the accident occurred and consequently no written claim was necessary. The courts below accepted this view.

Under our former opinions, the clause requiring presentation of a written claim is

On Writ of Certiorari to the Supreme clearly valid and controlling as to any lia

Court of the State of New York.

bility arising from beginning to end of the transportation contracted for. Chesapeake & Ohio Ry. Co. v. McLaughlin, 242 U. S. 142, 37 Sup. Ct. 40, 61 L. Ed. 207; St. Louis, Iron Mt. & So. Ry. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917; Baltimore & Ohio R. R. Co. v. J. G. Leach, 249 U. S. 217, 39 Sup. Ct. 254, 63 L. Ed. 570 (decided March 10, 1919); Cleveland, Cincinnati, Chicago & St.

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




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;
Southern Ry. v. Prescott, 240 U. S. 632, 36
Sup. Ct. 469, 60 L. Ed. 836.

the live stock of a consignee, after it had
been delivered, on the ground that a claim
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:

[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 the 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.


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


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.

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 brake, the engine was cut off and the conductor 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.

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

carrier owed to the consignee only the duty al removal. See Hutchinson on Carriers, 88 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.

(39 Sup.Ct.)

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.

The opinion of the court in this case concludes:

"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

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

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 writ er 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 applicable 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 simple-of a negligent switching operation, entirely 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


[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)


(Argued April 30, 1919. Decided June 9, 1919.)
No. 365.


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.


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


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.

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 liis not invalid under amendment 14, as deprivcense tax of $1 on each $1,000 of sales made, ing 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.

In Error to the Supreme Court of the State of Missouri.

Action by the American Manufacturing Company against the City of St. Louis. A judgment for defendant was affirmed by the Missouri Supreme Court (270 Mo. 40, 192 S. W. 402; 198 S. W. 1183), and plaintiff brings error. Affirmed.

See, also, 250 U. S. 39 Sup. Ct. 493, 63 L. Ed.

*Messrs. S. Mayner Wallace and Shepard Barclay, both of St. Louis, Mo., for plaintiff 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 regulation of commerce amounting to a 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, tax, and regulate for local purposes the occupations of merchants and manufacturers, which 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 graduate the amount of annual license imof sales made, is not invalid under Const. art. posed upon them in proportion to the sales 1, § 8, as a burden upon or regulation of inter- made by such merchant or manufacturer durstate commerce, though the tax was collected ing the year next preceding any fixed date. for goods manufactured in St. Louis, but which Pursuant to this authority the city, by the were removed from the state before sale, for the tax under the construction of the ordinance by ordinance in question, in addition to an ad the highest Missouri court was limited to goods valorem property tax, requires every manumanufactured within St. Louis; time of pay- facturer in the city before doing or offering ment merely being deferred until they should be to do business as such to take out a license. sold. 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.


A statute of the state (Rev. Stat. Mo. 1909, 9857) authorizes cities to license, tax and

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