(40 Sup.Ct.) be placed upon the words "and the carrier notified as to the character of the goods"? is not [ of the shipment is known to the carrier, and the proviso does not apply. The Congress did not affirmatively recognize any rates based upon declared value other than those authorized by this proviso. This, of course, does not mean that commodities may not be reasonably classified according to value and be subject to different rates applicable to different grades of the same commodity, which is a different matter from limiting the liability to the declared value. Some argue that the word "character" means nothing more than a statement of the ordinary name by which the commodity is known. On the other hand, it is urged that knowledge as to what the commodity is is necessary in order to apply to it any transportation rate, and that therefore the word "character" properly means more than the mere name of the commodity. It has been suggested that the real and proper meaning would be indicated by recasting the language as follows: "Provided, however, that if a commodity in the course of transportation is hidden from view by wrapping, boxing, or other means, so that the carrier cannot know its character, that is to say, its grade, quality, and condition, it may, with the approval of the commission, publish and maintain rates based on value and require the shipper to state in writing the value of any shipment made, and beyond the value so stated the carrier shall not be liable." It has also been suggested that, in view of the fact that the articles dealt with in this proviso are to be distinguished on the basis of value, the value becomes a peculiar quality of the property, and the word "character" should be construed as including value, and that when the shipper notifies the carrier of the character of the goods the notice is incomplete, unless the value is stated as a necessary element in pointing out the character of the goods. Another suggestion is that when common experience or knowledge does not clearly establish the nature of the goods, or the view is hidden by boxing, wrapping, or other means, and the carrier is not notified as to the true character of the goods, it may exercise the right to require the shipper to state in writing the value of the property. When the goods are not hidden from view, and the carrier is advised as to their character, all contracts or agreements purporting to limit the liability of the carrier for loss or damage caused by it are made void. A carrier, after the Cummins Amendment goes into effect, may not contract to limit its liability for loss or damage caused by it to the property. There is, however, no inhibition as to the limitation of the liability of a carrier for losses not caused by it or a succeeding carrier to which the property may be delivered. The amendment has expressly reapplied the limitation of the prior act with respect to loss or damage caused by the carriers chargeable therewith. It follows, therefore, that the interpretation applied to the act before it was amended is equally applicable to the amendment in so far as the latter affects the right of a carrier to establish rates conditional upon the shipper's assumption of the entire risk of loss attributable to causes beyond the carrier's control. From this it follows that under the amendment a contract or a tariff may lawfully limit to a reasonable maximum the liability of a carrier for losses which it does not cause. It follows further that the rates provided by such tariff may be proportionate to the risk assumed. This provision of the statute as to goods concealed from view and of the character of which the The right of the carrier to initiate its rates and carrier is not advised clearly prescribes the right to consider value of the property tendered for of carriers under the direction or approval of the transportation as an element in determining the commission to provide for a graduation of rates in classification thereof or the rate applicable thereto accordance with the declared value of the property has not been denied by the act or withdrawn by transported. The liability provided by the rates so this amendment. The right in certain instances to established by the commission is applicable no less make varying rates upon a given article or com- to instances of loss or damage chargeable to the modity dependent upon its true value being recog-negligence of the carrier than to those occasioned nized, and it being impossible for the carrier's by causes beyond the carrier's control. But the agent to know the true value of the shipment un- carriers may not contract to limit their liability less it is declared by the shipper, and in view of for loss, damage, or injury caused by them to the fact that the ordinary name of the commodity property the character of which is manifested by is essential to the application of any transportation the shipment itself or otherwise disclosed. rate whatsoever, it seems that the word "character" as used in this proviso must include the true and actual value as stated by the shipper. The word "character" as here used clearly relates primarily to value, or to those qualities affecting value, and when the entire proviso is considered the meaning seems to be that if the qualities affecting value of the goods are hidden from the carrier's view, or are not known to the carrier, the proviso applies. It is a well-settled rule of statutory construction that the word "and" may be read as "or" in deference to the meaning of the context. In this connection it has been suggested that the carrier might provide that in the event the shipper refused to declare the value the higher rates would apply. This suggestion cannot be approved. If the rate is lawfully conditioned upon the value as declared by the shipper, it is as much the shipper's duty to declare the true value of the shipment as it is his duty to declare the name of a commodity tendered for shipment as to which there are no different rates. It is important to keep in mind that the carriers are not prohibited from making different rates dependent upon the value of different grades of a given commodity; that, except as covered by the Cummins Amendment, including approval of the rates by the commission, the carrier is subject to all of the liabilities imposed by that amendment; and that if, in any instance, the shipper declares the value to be less than the true value in order to get a lower rate than that to which he would otherwise be entitled, he violates, and is subject to If the word "and" in the proviso is read as "or," the meaning is reasonably clear; whereas, if the letter of the statute is adhered to, the meaning is doubtful and difficult to determine. In those instances in which the carrier desires to limit its liability to the value of the property as specifically stated in writing by the shipper, the rate must be based upon the declared value and be so published; but the commission apparently must determine the penalty prescribed in, section 10 of the act. in advance of such publication that the commodity is one the value of which cannot be known to the carrier from ordinary sources or reasonable inspection, and to which rates based on declared value may be applied in connection with which the carrier's liability is limited to the value so declared. In determining that question the inquiry is whether or not the commodity is one the value of which is peculiarly within the knowledge of the shipper. If it has a definite market value, or its value depends upon facts of which the carrier has equal knowledge with the shipper, the "character" The carrier would also be subject to the same penalty in such a case if, having knowledge that the value represented is not the true value, it nevertheless accepts the shipper's representation as to value for the purpose of applying the rate. 5. Do the terms of the Cummins Amendment apply to the transportation of baggage? This must apparently be answered in the affirmative. Transportation of baggage is a part of the contract for transportation of the passenger. The carriers have always limited their liability for loss of or damage to baggage. The baggage check is the carrier's receipt for the baggage. The condi- f and the course to be pursued for the immediate tions attached to the carrier's liability are stated | future in the light thereof. All of the questions in the fare schedules and on passage tickets of herein discussed are, of course, subject to judicial contract form. In National Baggage Committee v. | interpretation, and the views indicated herein A., T. & S. F. Ry. Co., 32 I. C. C. 152, the commis- might be somewhat changed in the light of more sion considered the carriers' rules relative to complete information supported by competent evicharges and liabilities in the transportation of bag- dence. gage and prescribed certain reasonable regulations, The classification, tariffs, receipt and other forms including reasonable insurance charges upon bag- used by the express companies have been pregage declared to be of greater value than the maxi- scribed by order of the commission. The new law, mum limit provided in the schedules and contract of course, applies to them as well as to other carfor carriage. All ordinary personal or sample bag- | riers. They have presented suggested changes in gage is hidden from view by boxing, wrapping, or their rules and forms which will be disposed of by other means, and the amended law seems clearly a supplemental order in the Express Case. to recognize the carrier's right to fix conditions and terms applicable to the transportation of baggage dependent upon the value as declared by the person offering the baggage for transportation. The necessity for revision of the bills of lading, live stock contracts, and other similar contracts of carriage, as well as of certain parts of the carriers' classifications and rate schedules, is manifest. Bills of lading and shipping contracts can and ought to be at once amended by eliminating obviously unlawful and invalid provisions. Such action will obviate for the immediate future numerous controversies that otherwise would properly arise. Proper analysis should be made of the classifications and tariffs to bring them into harmony with the amended law. Such changes in classifications and rate schedules cannot be made upon statutory notice and become effective contemporaneously with the new law. Permission is therefore hereby given to carriers to make effective on June 2, 1915, upon not less than three days' notice to the public and to the commission, given in the manner prescribed in the act and in the commission's regulations, amendments to the classifications and rate schedules which elimi nate provisions or rules that are in conflict with the terms of the new law, provided no such amendment has the effect of increasing any rate or charge for services. If, in a proper manner and a proper proceeding, it shall be made to appear that, with regard to any commodity or commodities, the existing rates do 2. MANDAMUS The right to recover damages in mandamus proceedings under Code of Law D. C. 1901, § 1278, is incident to the allowance of the writ of mandamus; and, where that cannot be allowed because of failure to substitute the successor in office of the original respondent, the whole proceeding is at an end. In Error to the Court of Appeals of the District of Columbia. not afford the carriers proper compensation for the services they perform and the risk which is inposed upon them, it could hardly be denied that the rates on such commodities might properly be increased in a sufficient amount to properly compensate the carriers for their added risk and liability. Where rates are lawfully based upon declared values, the difference in rates should be no more than fairly and reasonably represents the added insurance. It does not appear that this amendment to the act affords justification for any increase in rates on commodities in general. As has been said, the carrier may not lawfully impose Petition for mandamus by John W. Le unreasonable rates upon one commodity in order to Crone, as Receiver of the Orinoco Company, compensate it for risk or liabilities incurred in Limited, against William G. McAdoo, Secreconnection with the transportation of another commodity, and it is not to be forgotten that the lia-tary of the Treasury. A judgment of the bilities here considered are only those for loss, Supreme Court of the District of Columbia damage, or injury to the property caused by a car- dismissing the petition was affirmed by the rier or its agents or employés; in other words, the Court of Appeals (48 App. D. C. 181), and petitioner brings error. Writ of error "dismissed. loss, damage, or injury resulting from the neglects or omissions of a carrier or its agents. Mr. George N. Baxter, of Cincinnati, Ohio, for plaintiff in error. Mr. Solicitor General King, for defendant in error. The commission has been conducting an investigation with regard to bills of lading, entitled In the Matter of Bills of Lading, Docket No. 4844. Further hearings in that proceeding may be necessary in the light of the Cummins Amendment. In that connection matters that have been informally presented and urged in this informal proceeding may be presented in a formal way, supported by testimony, and a determination can there be reached on questions as to which the commission now has no information upon which it could base a lawful order. What is attempted here is simply [1, 2] This is a petition to the Supreme to indicate the impressions gained from the expe- Court of the District of Columbia for mandarience had in the past and from the suggestions mus to direct the Secretary of the Treasury informally presented by those who are vitally interested in the effect of the Cummins Amendment to pay the amount of two certificates issued Mr. Justice HOLMES delivered the opinion of the Court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) to the petitioner by the Secretary of State. | of Secretary of the Treasury, his successor The petitioner is receiver of the Orinoco Com- was not substituted within twelve months; pany, Limited. That Company had claims which is the limit for such substitution fixed for damages against the United States of by the Act of February 8, 1899, c. 121, 30 Venezuela, which, with others, by agreement | Stat. 822 (Comp. St. § 1594). It is said that #218 *between the two governments, the United States of America released upon receiving from the United States of Venezuela a certain sum in trust for the parties having the claims. By the Act of February 27, 1896, c. 34, 29 Stat. 32 (Comp. St. § 6668), moneys so received are to be paid into the Treasury and the Secretary of State is to "determine the amounts due claimants, respectively, and certify the same to the Secretary of the Treasury, who shall, upon the the Code of the District of Columbia, § 1278, allows the petitioner to recover damages in the same proceeding and that the petition should be retained to charge Mr. McAdoo personally. But apart from other questions the damages are only incident to the allowance of the writ of mandamus, and as that cannot be allowed the whole proceeding is at an end. See Pullman Co. v. Knott, 243 U. S. 447, 451, 37 Sup. Ct. 428, 61 L. Ed. 841; Pullman Co. v. Croom, 231 U. S. 571, 577, 34 Sup. Ct. 182, 58 L. Ed. 375. Writ of error dismissed. presentation of the certificates of the Secretary of State, pay the amounts so found to be due." Each of such trust funds is declared to be "appropriated for the payment to the ascertained beneficiaries thereof of the certificates" provided for. The answer alleged that there were pending in the same Supreme Court two bills in equity, one by a (Argued April 22, 1920. Decided June 1, 1920.) private person and one by the Orinoco Company, Limited, asserting claims to the fund, (253 U. S. 219) CITY OF NEW YORK v. CONSOLIDATED GAS CO. OF NEW YORK et al. No. 566. DENYING PETITION TO INTERVENE IS NOT AP- that the respondent and petitioner both are 1. APPEAL AND ERROR ~78(2), 87(3)—Order parties to those proceedings, the petitioner having submitted to the jurisdiction, and that the petitioner should be limited to those proceedings and await the result of the decrees. The petitioner demurred. The demurrer was overruled and the petition was dismissed by the Supreme Court and its judgment was affirmed by the Court of Ap-basis for appeal. peals. The theory of the answer seems to be that the purpose of the Act of Congress was to appropriate a fund to the claim and to transfer the claim to that fund, leaving the question of title open to litigation in the ordinary courts, as has been held in more or less similar cases. Butler v. Goreley, 146 U. S. 308, 309, 310, 13 Sup. Ct. 84, 36 L. Ed. 981; Id., 147 Mass. 8, 12, 16 N. E. 734; United States v. Dalcour, 203 U. S. 408, 422, 27 Sup. Ct. 58, 51 L. Ed. 248; Robertson v. Gordon, 226 U. S. 311, 317, 33 Sup. Ct. 105, 57 L. Ed. 236. See, also, Bayard v. White, 127 U. S. 246, 8 Sup. Ct. 1223, 32 L. Ed. 116. It is thought that Congress hardly can have sought to confer judicial powers upon the Secretary of State. United States v. Borcherling, 185 U. S. 223, 234, 22 Sup. Ct. 607, 46 L. Ed. 884. And as the certificates are not gifts but are in recognition of outstanding claims, Williams v. *219 Heard, *140 U. S. 529, 11 Sup. Ct. 885, 35 L. Ed. 550, reversing s. c., 146 Mass. 545, 16 N. E. 437, judicial action is supposed to be necessary for the final determination of the right. But we cannot consider that question or the other arguments upon the merits of the case, because, Mr. McAdoo having resigned the office An application by a city for leave to intervene in the suit by a gas company to restrain the enforcement of a gas rate is addressed to the discretion of the court, and an order denying it is not a final order, which furnishes the 2. COURTS 382(5)-FINAL ORDER IN CIRCUIT COURT OF APPEALS IN CASE NOT WITHIN ITS JURISDICTION CAN BE REVERSED. Where the Circuit Court of Appeals affirmed an order which was not appealable in a suit in which the jurisdiction of the District Court depended solely on a claimed violation of the rights of plaintiff under the United States Constitution, so that the Supreme Court alone had appellate jurisdiction thereof, the Supreme Court has jurisdiction to review the judgment of the Circuit Court of Appeals, under Judicial Code, § 241 (Comp. St. § 1218) and will reverse that judgment and remand the case to that court, with directions to dismiss the appeal. Appeal from the United States Circuit Court of Appeals for the Second Circuit. Suit by the Consolidated Gas Company of New York against Charles D. Newton, Attorney General, and others, to enjoin the enforcement of the 80-cent gas law. The order of the District Court, denying application of the City of New York to intervene (256 F. 238), was affirmed by the Circuit Court of Appeals (260 F. 1022), and the City of New York appeals. Reversed and remanded to Circuit Court of Appeals, with directions to dismiss the appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes PHILADELPHIA & R. RY. CO. v. HANCOCK. See, also, 250 U. S. 671, 40 Sup. Ct. 15, 63 L. Ed. 1199. *220 (253 U. S. 284) *Mr. Vincent Victory, of New York City, (Argued March 2, 1920. Decided June 1, 1920.) for appellant. Mr. John A. Garver, of New York City, for appellees. Memorandum opinion by direction of the Court by Mr. Justice DAY. No. 415. 1. MASTER AND SERVANT 365-COMPENSATION FOR INJURY IN INTERSTATE COMMERCE IMPROPER. occurred. CONTAINED INTERSTATE FREIGHT. Under Employers' Liability Act (Comp. St. §§ 8657-8665), a railway trainman was employed in "interstate commerce," if any of the cars in his train contained interstate freight. A judgment affirming an award under the Pennsylvania Workmen's Compensation Act, The Consolidated Gas Company of New for the death of a railroad trainman must be York brought suit to enjoin the enforcement reversed, if decedent was employed in comof the New York 80-cent gas law. The juris-merce between the states when the accident diction was invoked solely upon the ground that the rate was confiscatory and hence vio-2. COMMERCE 27(6)-TRAINMAN EMPLOYED lated constitutional rights of the company. IN "INTERSTATE COMMERCE," IF ANY CAR The city of New York applied for leave to intervene as a party defendant in the action. The District Judge denied the petition for intervention, stating that the Public Service Commission, the Attorney General, and the district attorney properly represented private consumers; that the city had no interest in the litigation as a consumer, was not the governmental body which had fixed the rate, and was not charged with the duty of enforcing it. From the order (Consolidated Gas Co. of New York v. Newton, 256 Fed. 238) denying the application to intervene, the city of New York prosecuted an appeal to the Circuit [1, 2] The application was addressed to the discretion of the District Court, and the order appealed from was not of that final character which furnished the basis for appeal. Ex parte Cutting, 94 U. S. 14, 22, 24 L. Ed. 49; Credits Commutation Co. V. United States, 177 U. S. 311, 315, 20 Sup. Ct. 636, 44 L. Ed. 782; Ex parte in the Matter of Leaf Tobacco Board of Trade, 222 U. S. 578, 581, 32 Sup. Ct. 833, 56 L. Ed. 323. As the jurisdiction of the District Court was based upon constitutional grounds only, the case was not appealable to the Circuit Court of Appeals. But, an appeal having been taken and a final order made in the Circuit Court of Appeals, we have jurisdiction to review the question of jurisdiction of that court. Judicial Code, § 241 (Comp. St. § 1218); Union & Planters' Bank v. Memphis, 189 U. S. 71, 73, 23 Sup. Ct. 604, 47 L. Ed. 712. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 3. COMMERCE 27(6)-RAILWAY TRAINMAN ENGAGED IN INTERSTATE COMMERCE, THOUGH CARS NOT BILLED WHEN HANDLED BY HIM. A railway trainman, belonging to a crew operating a train of loaded cars from a colliery to yards 2 miles away, was engaged in interstate commerce, where the ultimate destina tion of some of the cars was outside the state, oranda delivered to the conductor by the shipas appeared from the instruction cards or memping clerk at the mine, and freight charges were paid for the entire distance, beginning at the mine, though the cars were not weighed and billed to the consignee until another crew moved them from such yard to scales same 10 miles away, where they were inspected, weighed, and billed. Mr. Justice Clarke dissenting. On Writ of Error and Writ of Certiorari to the Supreme Court of the State of Pennsylvania. Proceedings under the Workmen's Compensation Act of Pennsylvania by Margaret of her husband, opposed by the Philadelphia L. Hancock for compensation for the death & Reading Railway Company, employer. Compensation was awarded, and the award affirmed by the Supreme Court of Pennsylvania (264 Pa. 220, 107 Atl. 735), and the employer brings error and certiorari. and cause remanded. Writ See, also, 250 U. S. 658, 40 S. Ct. 54, 63 L. Ed. 119%. The proper course is to reverse the judg-of petition dismissed, judgment reversed, ment of the Circuit Court of Appeals, and remand the case to that court, with directions to dismiss the appeal. Four Hundred and Forty-Three Cans of Egg Product v. United States, 226 U. S. 172, 184, 33 Sup. Ct. 50, 57 L. Ed. 174; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 318, 36 Sup. Ct. 293, 60 L. Ed. 658. So ordered. Messrs. George Gowen Parry and Charles Heebner, both of Philadelphia, Pa., for plaintiff in error. Mr. Hannis Taylor, of Washington, D. C., for defendant in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *285 (40 Sup.Ct.) *Mr. Justice MCREYNOLDS delivered the opinion of the Court. Respondent maintains that the coal in cars ticketed for transportation as above described did not become part of interstate commerce until such cars reached Shamokin The judgment below affirmed an award for respondent under the Workmen's Com-scales and were there weighed and billed. pensation Act of Pennsylvania (Act June 2, 1915 [P. L. 736]), granted because of the death of her husband from an accident while in the petitioner's employ as a trainman. After a writ of error had been sued out we allowed a writ of certiorari. 250 U. S. 658, 40 Sup. Ct. 54, 63 L. Ed. 1193. The former must be dismissed; the case is properly here upon the latter. [1, 2] If, when the accident occurred, the husband was employed in commerce between states, the challenged judgment must be reversed, and he was so employed if any of the cars in his train contained interstate freight. Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665); St. L., S. F. & Tex. Ry. v. Seale, 229 U. S. 156, 161, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; New York Central & Hudson River R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; New York Central R., R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; New York Central R. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536; Southern Pacific Co. v. Industrial Accident Commission (January 5, 1920) 251 U. S. 259, 40 Sup. Ct. 130, 64 L. Ed. -. [3] The essential facts are not in controversy; the nature of the employment, therefore, is a question of law. But we think former opinions of this court The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Mr. Justice CLARKE dissents. (253 U. S. 209) UNITED STATES ex rel. JOHNSON et al. v. AUTHORIZED TO REVERSE DECISION GRANTING The duties of the deceased never took him out of Pennsylvania; they related solely to transporting coal from the mines. When injured he belonged to a crew operating a train of loaded cars from Locust Gap colliery to Locust Summit yard, two miles away. 1. INDIANS 13-SECRETARY OF INTERIOR The ultimate destination of some of these cars was outside of Pennsylvania. This appeared from instruction cards or memoranda delivered to the conductor by the shipping clerk at the mine. Each of these referred to a particular car by number and contained certain code letters indicating that such car with its load would move beyond the state. Pursuing the ordinary course these cars *286 were hauled to *Locust Summit yard and placed upon appropriate tracks; there the duties of the first crew in respect of them terminated. Later, having gathered them into a train, another crew moved them some 10 miles to Shamokin scales, where they were inspected, weighed, and billed to specifically designated consignees in another state. In due time they passed to their final destinations over proper lines. Freight charges at through rates were assessed and paid for the entire distance beginning at the mine. Under Act April 26, 1906, § 2, the Secretary of the Interior had power, after informing the Commissioner to the Five Civilized Tribes that his decision granting enrollment as members of the Creek Nation to certain applicants was affirmed, to reverse his decision and deny enrollment, where the names had never been placed on the rolls. 2. MANDAMUS 73 (1) – WILL NOT LIE TO COMPEL PLACING OF NAMES ON ROLLS OF INDIAN TRIBE. Under Act April 26, 1906, § 2, the Secre tary of the Interior was the final judge whether names should be placed on the rolls of members of the Creek Nation, and where he denied enrollment the names cannot be ordered put on the rolls, in a mandamus proceeding, upon a suggestion that he made a mistake, or that he came very near to granting enrollment. In Error to the Court of Appeals of the District of Columbia. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |