its own force, such liens may be enforced in from an initial carrier for the damages to the state court against and to the extent of an interstate freight shipment. Reversed the property affected by the lien, not with and remanded for further proceedings. standing the order setting it apart as ex- See same case below, 116 Ga. 863, 60 L. empt, and the discharge of the debt in bank- R. A. 817, 43 S. E. 265. ruptcy. In cases of liens which can exist independent of the question whether or not

Statement by Mr. Justice Peckham: the property is exempt, undoubtedly the

The plaintiff in error brings this case here rule here invoked would be applicable; but to review the judgment of the supreme the lien of a general judgment is not such court of Georgia, affirming a judgment of a lien. It is a lien upon real property, only, the trial court, in favor of the defendants which is not exempt. Hence, if this prop-in error, for the damages sustained by them erty was exempt at the time of the filing on the shipment of certain grapes, as hereof the petition in bankruptcy, the judgment inafter more particularly stated. First reunder which it was sold was not a lien there ported, 113 Ga. 514, 53 L. R. A. 720, 38 S. on, and to assume that the judgment was a E. 970, and again, on appeal from judgment lien is to assume that it was ņot exempt, - on second trial, 116 Ga. 863, 60 L. R. A. the very question at issue.”

817, 43 S. E. 265. We are not able to perceive that the state

The trial court gave judgment for the supreme court denied in any way a right of shippers of the grapes, who were plaintiffs plaintiffs in error specially set up or claimed below, for the amount of the difference beunder the Constitution or laws of the Unit-tween the market price of the grapes as ed States. All that was determined, and shipped in good order and the amount they all that the state court was called on to actually received for the same in their determine, was the question of exemption damaged condition, being the sum of under the state statutes. Its acceptance of $434.53. The action was commenced in the the judgment of the Federal court in that Pike county court, in the state of Georgia, regard does not bring the case within $ and the petition averred that on July 31, 709.

1897, the petitioner shipped a carload of Writ of error dismissed.

grapes from Barnesville, Georgia, consigned

to Rocco Brothers, Omaha, Nebraska, by (196 U. S. 194)

way of the Central of Georgia Railway CENTRAL OF GEORGIA RAILWAY COM- Company. The freight was to be conveyed PANY, Plff. in Err.,

by more than two common carriers, the

initial carrier being the Central of Georgia A. O. MURPHEY and J. L. Hunt, Partners, Railway Company, and the freight was

Doing Business as A. 0. Murphey & shipped under a contract of shipment in Hunt.

which it was provided that the responsi

bility of each carrier should cease upon de. Commerce — state regulation

state regulation – interstate livery to the next "in good order.” The freight shipments.

grapes were greatly damaged on the route

between Barnesville and Omaha, and the The imposition upon the initial or any connect damage resulted from the negligence of the

ing carrier by Ga. Code 1895, $8 2317, 2318, as a condition of availing itself of a valid

common carriers on the route. The peticontract of exemption from liability beyond tioners applied to the plaintiff in error, its own line, of the duty of tracing the freight, the initial carrier on the route, and served and informing the shipper, in writing, when, it with an application in writing August where, and how, and by which carrier, the 20, 1897, in which they requested that the freight was lost, damaged, or destroyed, and of giving the names of the parties and their railway company should trace the freight, official position, if any, by whom the truth of and inform the petitioners, in writing, the facts set out in the information can be when, how, and by which carrier the freight established, is, when applied to an interstate was damaged, and also that the company shipment, a violation of the commerce clause should furnish the petitioners the names of of the Federal Constitution,

the parties and their official position, if any, [No. 111.)

by whom the truth of the facts set forth in

the information could be established. The Argued December 16, 1904. Decided Janu- railroad company failed to trace the freight

and give the information in writing with

in the thirty days required by law, whereIN N ERROR to the Supreme Court of the fore the petitioners averred that the rail

State of Georgia to review a judgment road company became indebted to the petiwhich affirmed a judgment of the Superior tioners to the amount of the damage to the Court of Pike County, in that State, in grapes as stated. favor of plaintiffs in an action to recover The plaintiff in error demurred to the

.

ary 9, 1905.

petition, the demurrer was overruled, and it the grapes were damaged, and the names of then put in an answer denying many of the the parties and their official position, if any, allegations of the petition. Upon the trial by whom the truth of the facts set out in it appeared that the grapes were shipped the information could be established. They from Barnesville, Georgia, to Omaha, Ne also demanded that the information should braska, and they were "routed” by the ship be furnished within thirty days from the pers over the Central of Georgia, then the date of the application. The plaintiff in Western & Atlantic, then the Nashville, error, although it endeavored so to do,

, Chattanooga, & St. Louis, then the Louis- failed to furnish the information within the ville & Nashville, and then the Wabash time mentioned in the statute. It offered Railroads. The initial carrier, the plain to prove on the trial that the car in which tiff in error, issued to the shippers, A. O. the grapes were originally shipped at Murphey and Hunt, a bill of lading for the Barnesville, on the road of the plaintiff in carload of grapes, which showed the routing error, reached Atlanta, Georgia, the end of as above stated, and the bill was signed by the line of the plaintiff in error, in due Murphey and Hunt, as the contract between time, and that the grapes were then in good the plaintiff in error and themselves. It order, and the car was promptly delivered contained a promise “to carry (the grapes) to the next connecting line, that is, the Westto said destination, if on its road, or to deern & Atlantic Railroad, and by that road liver to another carrier : the route to said it was delivered to the Nashville, Chatta

am destination, subject, in either instance, to nooga, & St. Louis Railroad Company, at the conditions named below, which are Nashville, Tennessee, with the grapes in agreed to in consideration of the rate like good order and condition. The evidence named.” Omaha, Nebraska, is not on the was rejected, the court holding that the road of the plaintiff in error. Paragraph 5 plaintiff in error had failed to comply with of the bill of lading, under which the ship- the conditions of the statute, and that it ment of grapes was made, reads as follows: was therefore liable for the amount of the “5. That the responsibility, either as

either as amage sustained by the petitioners on common carrier or warehouseman, of each whatsoever road the damage actually Occarrier

over whose line the property curred. shipped hereunder shall be transported, shall cease as soon as delivery is made to Messrs. John I. Hall, Henry C. Cunningthe next carrier or to the consignee; and ham, Lloyd Cleveland, and Robert L. Berner the liability of the said lines contracted for plaintiff in error. with is several, and not joint; neither of Messrs. William Wallace Lambdin the said carriers shall be responsible or and Hoke Smith for defendants in error. liable for any act, omission, or negligence of the other carriers over whose lines said Mr. Justice Peckham, after making the property is or is to be transported.” foregoing statement of facts, delivered the

The grapes were carried under the con opinion of the court: tract contained in the bill of lading, and ar- The supreme court of Georgia has held rived at Omaha, in the state of Nebraska, in this case that the statute applies to shipin a damaged condition.

ments of freight destined to points outside, The law under which the action was as well as to those inside, the state, and we brought is found in $$ 2317 and 2318 of the must accept that construction of the state Code of Georgia of 1895. Those sections statute. The question for us to decide are set forth in full in the margin.f is whether the statute, when applied to an

On the 20th day of August, 1897, the interstate shipment of freight, is an intershippers availed themselves of these pro- ference with, or a regulation of, interstate visions of the statute, and duly demanded commerce, and therefore void. of the plaintiff in error that it should trace We think the imposition upon the initial the grapes, and inform the shippers, in or any connecting carrier, of the duty of writing, when, how, and by which carrier tracing the freight, and informing the ship

Sec. 2317. When any freight that has been stroyed, and the names of the parties and their shipped, to be conveyed by two or more common official position, if any, by whom the truth of carriers to its destination, where, under the the facts set out in said information can be contract of shipment or by law, the responsi- established. bility of each or either shall cease upon the Sec. 2318. If the carrier to which applicadelivery to the next "in good order," has been tion is made shall fall to trace said freight and lost, damaged, or destroyed, it shall be the duty give said information, in writing, within the of the initial or any connecting carrier, upon time prescribed, then said carrier shall be liaapplication by the shipper, consignee, or their ble for the value of the freight lost, damaged, assigns, within thirty days after application, or destroyed, in the same manner and to the to trace said freight, and inform said applicant, same amount as if said loss, damage, or dein writing, when, where, and how, and by which struction occurred on its line. carrier said freight was lost, damaged, or de

per, in writing, when, where, how, and by provision making the initial or any conwhich carrier the freight was lost, damaged, necting carrier liable in any event for any or destroyed, and of giving the names of loss or damage sustained by the shipper, on the parties and their official position, if any, account of the negligence of any one of the by whom the truth of the facts set out in connecting lines, would also be convenient the information can be established, is, for the shippers; but it would hardly be when applied to interstate commerce, a maintained, when applied to the interstate violation of the commerce clause of the shipment of freight, that a state statute to Federal Constitution. The supreme court that effect would not violate the commerce of Georgia has held that a carrier has, in clause of the Federal Constitution. The that state, the right to make a contract provision of this statute, while not quite so with the shipper to limit its liability, as a onerous, is yet a very plain burden upon carrier, to damage or loss occurring on its interstate commerce. It is also said that own line.

Central R. & Bkg. Co. v. Avant, it is so much easier for the initial or other 80 Ga. 195, 5 S. E. 78; Richmond & D. R. connecting carrier to obtain the information Co. v. Shomo, 90 Ga. 500, 16 S. E. 220. provided for in the statute than it is for

Whether the state would have the right the shipper, that a statute requiring such to prohibit such a contract with regard to information to be obtained, under the penalinterstate commerce need not therefore be ty of such carrier being liable for the damconsidered. It has not done so, but, on the age sustained, ought to be upheld for that contrary, its highest court has recognized very reason. the validity of such a contract. Without Assuming the fact that the carrier might the provisions of the statute in question, more readily obtain the information than the plaintiff in error would not be liable to the shipper, we do not think it is material the shippers in this case, if, without negli- upon the question under consideration. We gence, they delivered the consignment in are not, however, at all clear in regard to good condition to the succeeding carrier. the fact. The loss or damage might occur This they offered to prove was the case. on the line of a connecting carrier, outside But if this statute be valid, this limitation the state where the shipment was made (as of liability can only be availed of by the was the case here), and we do not perceive railroad company by complying with its that the initial carrier has any means of obprovisions. In other words, before it can taining the information desired, not open avail itself of the exemption from liability to the shipper. The railroad company rebeyond its own line, provided for by its ceiving the freight from the shipper has no valid contract, the initial or any connecting means of compelling the servants of any carrier must comply with the terms of the connecting carrier to answer any question statute, and must, within thirty days after in regard to the shipment, or to acknowl. notification, obtain and give to the ship-edge its receipt by such carrier, or to state per the information provided for therein. its condition when received. And when it This is certainly a direct burden upon inter- is known by the servants of the connecting state commerce, for it affects most vitally company that the object of such questions the law in relation to that commerce, and is to place in the hands of the shipper inforprevents the exemption provided by a legal mation upon which its liability for the loss contract between the parties from taking ef- or damage to the freight is to be based, it fect except upon terms which we hold to be would seem plain that the information a regulation of interstate commerce. It is would not be very readily given, and the said that the reason for the passage of such initial or other carrier could not compel it. an act lies in the fact that, as a general The effect of such a statute is direct and rule, shippers under such a contract as the immediate upon interstate commerce. If one in question are very much incon- directly affects the liability of the carrier of venienced in obtaining evidence of the loss freight destined to points outside the state, or damage, where it occurred on another with regard to the transportation of articles road than that of the initial carrier. It is of commerce; it prevents a valid contract of contended that, under such contracts, there exemption from taking effect except upon a being great difficulty in identifying the par- very onerous condition, and it is not of that ticular carrier upon whose road the loss oc- class of state legislation which has been curred, it is reasonable to make the initial held to be rather an aid to than a burden or other connecting carrier liable therefor, upon such commerce. The statute in quesunless such carrier furnish the information tion prevents the carrier from availing provided for in the statute.

itself of a valid contract unless such carrier We can readily see that a provision, such comply with the provisions of the statute as is contained in the statute in question, by obtaining information which it has no would be a very convenient one to shippers means of compelling another carrier to give, of freight through different states. And a 'and yet, if the information is not obtained,

the carrier is to be held liable for the negli. I ly imposes a burden upon the carrier of gence of another carrier over whose conduct interstate conimerce, and is not an aid to it, it has no control. This is not a reasonable but, in its direct and immediate effect, it is regulation in aid of interstate commerce, quite the contrary. but a direct and immediate burden upon it. The power to regulate the relative rights

The case of Richmond & A. R. Co. v. and duties of all persons and corporations Patterson Tobacco Co. 169 U. S. 311, 42 L. within the limits of the state cannot extend ed. 759, 18 Sup. Ct. Rep. 335, is not an au- so far as to thereby regulate interstate comthority against these views, but, on the con- merce. The police power of the state does trary, it supports and exemplifies them. not give it the right to violate any proThe section of the Virginia Code (1295 of vision of the Federal Constitution. Being 1887) was held not to be a regulation of of the opinion that the statute in question, interstate commerce, because it simply when applied to an interstate shipment, is established a rule of evidence ordaining the a regulation of interstate commerce, we character of proof by which a carrier might must hold the statute, so far as it affects show that, although it received goods for such shipments, to be void on that account. transportation beyond its own line, never- The judgment of the Supreme Court of theless, by agreement, its liability was Georgia is reversed and the case remanded limited to its own line. The statute left for such further proceedings as may be conthe carrier free to make any limitation as sistent with this opinion. to its liability on an interstate shipment, Reversed. beyond its own line as it might deem proper, provided, only, the evidence of the

(196 U. S. 192) contract was in writing and signed by the HARVEY FULLERTON, Piff. in Err., shipper. The provision of the Virginia statute that, although the contract in writ

STATE OF TEXAS. ing provided for therein was made in fact, yet "if such thing be lost or injured, such Error to state court-Federal question. common carrier shall himself be liable therefor, unless, within a reasonable time A certificate of the presiding judge of a state after demand made, he shall give satis

court that a Federal question which was first

raised by a petition for rehearing was duly factory proof to the consignor that the loss

considered and decided cannot confer jurisor injury did not occur while the thing was diction on the Federal Supreme Court of a in his charge,” is a materially different pro- writ of error to the state court, where, from vision from the one under consideration. A the face of the record proper and from the provision in a statute may be deemed a

opinions, the reasonable inference is that the reasonable one, and not a regulation of

court may have denied the application in the

mere exercise of its discretion, or may have interstate commerce, where the statute

declined to pass upon the Federal question simply imposes a duty upon the carrier, in terms because it was suggested too late. when the loss has not happened on the carrier's own line, to inform the shipper of

[No. 112.] that fact within a reasonable time, and this

Argued December 16, 1904. Decided Janucourt has said in the above case that such a

ary 9, 1905. provision is manifestly within the power of the state to adopt. This is very different from the duty imposed upon the carrier by IN ERROR to the Court of Criminal Ap

peals of the State of Texas to review a the statute in question here, which is much judgment which affirmed a conviction in the more onerous, and imposes a liability unless County Court of Hunt County, in that state, the detailed information provided for in the of unlawfully dealing in futures. Disstatute is obtained and given to the shipper. missed for want of jurisdiction. The case of Chicago M. & St. P. R. Co.

See same case below, (Tex. Crim. App.) v. Solan, 169 U. S. 133, 42 L. ed. 688, 18 75 S. W. 534. Sup. Ct. Rep. 289, holds the same general

The facts are stated in the opinion. principle as that involved in the case just

Messrs. William W. Griffin and A. D. cited. To the same effect are the cases re-Englesman for plaintiff in error. ferred to in the opinion of Mr. Justice Gray

No brief was filed for defendant in error. in the Solan Case. It is idle to attempt to comment upon the various cases decided by Mr. Chief Justice Fuller delivered the this court relating to this clause of the opinion of the court: Federal Constitution. We are familiar with Fullerton was charged by information them, and we are certain that our decision with unlawfully conducting, carrying on, and in this case does not run counter to the transacting the business of dealing in principles decided in any of those cases. futures in cotton, grain, etc.; and unlawThe statute here considered we think plain-1 fully keeping a a bucket shop, so-called,

80

"where future contracts were then and there that to do so would violate said constitubought and sold with no intention of an tional provision.” And further, “that said actual bona fide delivery of the articles and contention was duly considered by us and things so bought and sold.” He was found decided adversely to plaintiff in error.” guilty as charged, and sentenced to a fine of But, on the face of the record proper, and $200 and imprisonment for thirty days. from the opinions, the reasonable inference The case was carried to the court of crimi- is that the court may have denied the apnal appeals of Texas, and judgment affirmed. plication in the mere exercise of its discreThe court, in its opinion, stated the con- tion, or declined to pass on the alleged contention to be that the evidence did not show stitutional question, in terms, because it a violation of the statute, namely, art. 377 was suggested too late; and nothing is of the Penal Code; and held, on a considera- more firmly established than that such a tion of the facts, that Fullerton had clearly certificate cannot, in itself, confer jurisdicbrought himself within and violated the tion on this court. Henkel v. Cincinnati, statute. 75 S. W. 534. Fullerton there- 177 U. S. 170, 44 L. ed. 720, 20 Sup. Ct. upon moved for a rehearing, which motion Rep. 573; Dibble v. Bellingham Bay Land was overruled. This application for re- Co., 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. hearing assigned, among other grounds, that Rep. 939. the statute, as construed by the court, was Writ of error dismissed. in violation of the Constitution of the United States, vesting in Congress the

(196 U. S. 207) power to regulate commerce among the

UNITED STATES, Appt., several states. In overruling the motion, the court delivered a second opinion on the

UNITED VERDE COPPER COMPANY. question of the sufficiency of the indictment, which was attacked, not in the notion for Public lands--use of timber for domestio rehearing, but in an additional brief, pre

purposes-effect of regulations of Secresented after the submission of that motion.

tary of Interior. The court, however, held the indictment good, and, after stating that “the motion The use of timber taken from unsurveyed min. for rehearing was mainly devoted to an at

eral land in the territory of Arizona in roast

ing ore at a mine in that territory, whether tack on the original opinion, wherein the

roasting ore be considered a part of mining evidence was held sufficient,” adhered to or of smelting, is authorized by the permisthat opinion. 75 S. W. 535. No reference sion given by the act of June 3, 1878 (20 Stat. to the Constitution of the United States at L. 88, chap. 150, U. S. Comp. Stat. 1901, was made by the court, nor does the record

p. 1528), § 1, to fell and remove such timber

for "building, agricultural, mining, or other disclose any such reference except in the

domestic purposes," notwithstanding a regupetition for rehearing, as before stated. lation of the Secretary of the Interior, pro

We have repeatedly ruled that it is too mulgated under the supposed authority of late to raise a Federal question by a peti

that statute, that no timber can be used for tion for rehearing in the supreme court of

smelting purposes, since the words of the a state after that court has pronounced its

statute, that the felling and use of the timber

shall be “subject to such rules and regulafinal decision, although, if the state court tions as the Secretary of the Interior may entertains the petition, and disposes of the prescribe for the protection of the timber and Federal question, that will be sufficient. of the undergrowth growing upon sûch lands, Mallett v. North Carolina, 181 U. S. 589, 45

and for other purposes," cannot confer upon

him the power to take from the industries des. L. ed. 1015, 21 Sup. Ct. Rep. 730. In that

ignated the permission given by Congress. case it was observed : . "Had that court declined to pass upon the Federal questions,

[No. 68.] and dismissed the petition without con- Argued December 2, 1904. Decided January sidering them, we certainly would not

9, 1905. undertake to revise their action."

Some weeks after the denial of the motion for a rehearing, this writ of error was al. / APPEAL from the Supreme Court of the

Territory of Arizona to review a judglowed by the presiding judge of the court of ment which affirmed the judgment of the criminal appeals, who certified that on that District Court of the Fourth Judicial Dismotion it was contended “that, under the trict of that Territory, sustaining a deevidence in the cause, plaintiff in error was murrer to a complaint in an action to reengaged in interstate commerce and com-cover the value of timber cut and removed merce between different states within the from the public lands, and entering judgmeaning of article 1, § 8 of the Constitution ment for defendant upon plaintiff's refusal of the United States, and that the statutes to amend. Affirmed. of the state of Texas could not make such See same case below, (Ariz.) 71 Pac. 954. matters and transactions an offense, and The facts are stated in the opinion.