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gress."

Mr. Marsden C. Burch for appellant. | visions of the act, and, if so, to notify the

Mr. Alfred B. Cruikshank for appel- Commissioner of the General Land Office lee.

thereof.

Section 3 makes violations of the act or Mr. Justice McKenna delivered the

the of the rules and regulations made by the opinion of the court:

Secretary of the Interior misdemeanors, Action brought by the United States punishable by fine, not exceeding $500, "to against the appellee, which we shall call the which may be added imprisonment for any copper company, for the sum of $38,- term not exceeding six months.” 976.75, the value of timber cut and removed Among the regulations promulgated by from certain unsurveyed mineral land in the Secretary of the Interior were the folthe territory of Arizona.

lowing: The timber or wood was alleged to have “4. The uses for which the timber may be been cut by one Rafael Lopez, a resident felled or removed are limited by the word

, and citizen of Arizona, and amounted to ing of the act to building, agricultural,

' 6,496} cords, of the value of $6 per cord, or niining, or other domestic purposes.' the sum of $38,976.75.

5. No timber is permitted to be felled It is alleged that the timber belonged to or removed for purposes of sale or traffic, the United States, and "was used and con- or to manufacture the same into luniber, or sumed by the said defendant for the purpose for any other use whatsoever, except as deof roasting ore at the United Verde Copper fined in § 4 of these rules and regulations.

§ mines, said mines being the property of defendant, herein, at Jerome, Yavapai county, “7. No timber is permitted to be used Arizona territory, in violation of the act of for smelting purposes, smelting being a Congress of June 3, 1878 [20 Stat. at L. 88, separate and distinct industry from that of chap. 150, U. S. Comp. Stat. 1901, p. 1528], mining. and of the rules and regulations

regulations of the Secretary of the Interior, promulgated “10. These rules and regulations shall under the authority of said act of Con-take effect February 15, 1900, and all exist

ing rules and regulations heretofore preThe copper company demurred to the scribed under said act by this department complaint. The demurrer was sustained. are hereby rescinded.” The United States refused to amend, and The contention of the United States is judgment was entered for the copper com- that roasting cre is smelting, and that pany. It was affirmed by the supreme court smelting is not a purpose permitted by the of the territory.

act of Congress, and is besides forbidden by Section 1 of the act of June 3, 1878, upon the regulations of the Secretary of the Inwhich the action is based, is as follows: terior.

"That all citizens of the United States, Roasting ore is defined by the supreme and other persons, bona fide residents of the court of the territory in its opinion as fol- . state of Colorado or Nevada, or either of the lows: territories of New Mexico, Arizona, Utah, “It is a matter of common knowledge Wyoming, Dakota, Idaho, or Montana, and that in this territory the roasting of ore at all other mineral districts of the United the mines from which it is taken is ordiStates, shall be, and are hereby, authorized narily accomplished by piling the ore and and permitted to fell and remove, for build the wood mingled with it in piles in the ing, agricultural, mining, or other domestic open air, and by igniting the wood the fire purposes, any timber or other trees growing is communicated to the sulphurous or other or being on the public lands, said lands combustible ingredients in the ore, and being mineral, and not subject to entry thus, by the heat generated by its own comunder existing laws of the United States ex- bustion and that of the wood mingled with cept for mineral entry, in either of said it, the volatile substances are driven off in states, territories, or districts of which such vapor, smoke, and gases from the ore thus citizens or persons may be at the time bona treated. By this treatment the ores that are fide residents, subject to such rules and extremely sulphid or highly charged with regulations as the Secretary of the Interior other volatile substances are relieved from may prescribe for the protection of the tim- a large portion thereof, and are the more ber and of the undergrowth growing upon readily treated by smelting or other procsuch lands, and for other purposes: Processes of reduction, and besides require less vided, The provisions of this act shall not fluxing material for such reduction, and extend to railroad corporations."

are also lighter in weight, and for that Section 2 makes it the duty of registers reason, when shipped to other points for and receivers to ascertain whether any timsmelting or further treatment of any kind, ber is being cut in violation of the pro-l cost less for freight.”

The court distinguished this process from factures, meaning not those of the housesmelting, and decided that it is, in prac-hold, but those of a county, state, or nation, tice, a part of mining. It is a step, the according to the object in contemplation. court reasoned, in the extraction of the ore So in the statute the word “domestic” apfrom the mine, and the separation of the plies to the locality to which the statute is ore from the rock enclosing it. Roasting directed, and gives permission to the inore, therefore, is preparation for smelting, dustries there practised to use the public but not smelting, which, according to all of timber. This definition of "domestic" gives the definitions, is something more than the word an apt and sensible meaning, and melting,--it is obtaining the metal by heat we must regard the association of the word and euch reagents as develop it. Roasting "other" with it as designed, not as acciis done crudely in the open air by burning dental. wood and ore mingled in a pile. Smelting The statute was passed on in United is the function of an organized plant. But States v. Richmond Min. Co. 40 Fed. 415, in roasting ore, regarding the production of 1889. In that case the United States sued metal only, is a preliminary step to smelt-in replevin for 10,000 bushels of charcoal ing, and counsel for the government makes made from wood which was cut on mineral much of that circumstance. If this were land in the state of Nevada. The Richall that is necessary to consider, the de- mond Mining Company was engaged in the duction would be easy that wood used for business of mining, purchasing and reroasting ores is used for smelting pur- duction of ores, and bought the charcoal “to poses.

be used in the reduction of ores and refinBut the dependence of industries, one ing the product thereof." The court held upon another, does not make them the same, that such use was a domestic purpose within and the division of labor between them is the meaning of the statute. The court said not as marked in new as in old communi- that if reducing ores by melting or furnace ties, having a more varied industrial de process, and refining the bullion, is not velopment. Regarding, therefore, the con properly a part of mining, “it is certainly ditions which existed in the mining states incident to it, and closely connected with and territories, roasting ore was more it.” The court, however, did not dwell on naturally a part of mining than of smelt that point, but put its judgment in favor of ing. The assignment, however, is unim- the mining company upon the ground that portant in the view we take of the statute, reducing ores was “a domestic industry of and whether roasting ore be considered a the highest importance to the miner and to part of mining or of smelting, the use of the public," and was within “the benefits timber for it has the sanction of the statute. conferred by the statute.” It will be ob

The statute provides “that all citizens of served that the industry which was given the United States

shall be and are the benefits of the statute was more than hereby authorized and permitted to fell smelting in the strictest sense, and the deand remove for building, agricultural, cision was acquiesced in for eleven years by mining, or other domestic purposes, any the Interior Department. It was a rule timber.” The special enumeration of in- of rights and conduct for that time, and its dustries is "building, agricultural, and overturn might involve civil liability for mining.” But the permission of the statute acts which were done under the sanction of is not confined to these. It extends to the statute as judicially construed.

We “other domestic purposes.” The limitation should hesitate, therefore, to reverse that of the other purposes is in the word construction, even if it were more doubtful "domestic."

than it is. Counsel for the government recognizes But the government relies on the rules this, and substitutes for "domestic" the and regulations of the Secretary of the Inword "household,” and contends that the terior, promulgated under, as it is contendword "other" should be treated as an in-ed, the authority of the statute since Unittruder, and eliminated from the statute, and ed States v. Richmond Min. Co. making the latter read that timber may be cided. No. 7 of those regulations provides felled for "building, agricultural, mining, or that "no timber is permitted to be used for domestic purposes.” But we are not per- smelting purposes, smelting being a sep

. mitted to take such liberty with the statute arate and distinct industry from that of if “domestic" has a meaning consistent with mining." By this the Secretary of the Inthe intentional use of the word "other.” It terior may have intended to supersede the has such meaning. It may relate, it is ruling in United States v. Richmond Min. true, to the household. But, keeping its Co., but to which industry the roasting of idea of locality, it may relate to a broader ore shall be assigned the Secretary does not entity than the household. We may proper- say, and the considerations which we have ly and accurately speak of domestic manu-l expressed apply as well to the regulation as

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to the statute. But there is a more abso- | the benefit of the whole people, any statute lutely fatal objection to the regulation. The which permits timber to be cut by individSecretary of the Interior attempts by it to uals should be narrowly construed. give an authoritative and final construction In my view, the license given to citizens of the statute. This, we think, is beyond of the United States and residents of the his power. Smelting may be a separate in states and territories named, "to fell and redustry from mining, but that does not de move, for building, agricultural, mining, or prive it of the license given by the statute. other domestic purposes," timber and trees As we have already said, the general growing upon the public lands, should be clause, “other domestic purposesis as much confined to timber intended to be used for a grant of permission to the industries des structural or household purposes, and not be ignated by it to use timber as though they extended so far as to authorize the consumphad been especially enumerated, and their tion of timber in manufacturing or other rights are as inviolable as the rights of business operations. The word “building" the industries which are enumerated. The explains itself. “Agriculture” would include industries meant by the general clause may tinber used for houses, barns, tools, furnireceive indeed limitation from those enumer- ture, and fences. The word “mining” was ated; in other words, be limited to the con- doubtless intended to include not only the ditions existing in the mining states and buildings necessary for mining operations, territories when the statute was enacted: but such timber as is used in shoring up the but there can be no doubt that smelting has walls of the mine, and perhaps, also, in such relation. If rule 7 is valid, the Secre- operating the hoisting engines; but not that tary of the Interior has power to abridge used for consumption in the treatment of or enlarge the statute at will. If he can de- ores. fine one term, he can another. If he can It is true the words "other domestic purabridge, he can enlarge. Such power is not poses” are susceptible of two constructions. regulation: it is legislation. The power of The word "domestic,” when used in conneclegislation was certainly not intended to be tion with the words commerce, manufacconferred upon the Secretary. Congress has tures, or industries, is significant of locality, selected the industries to which its license is and is contradistinguished from foreign; but given, and has intrusted to the Secretary the when used in connection with the word "purpower to regulate the exercise of the li- poses" it is most nearly analogous to

te cense, not to take it away. There is, un-houschold.” The difficulty with the former doubtedly, ambiguity in the words express-construction is that it practically liberates ing that power, but the ambiguity should the word from all restrictions. If it be not be resolved to take from the industries construed as referring to locality, what is designated by Congress the license given to the locality to which it should be confined ! them, or invest the Secretary of the In- Is it the immediate neighborhood, township, terior with the power of legislation. The county, or state, or may it be given the same words of the statute are that the felling and construction as given to it in connection use of timber by the industries designated with the words commerce or manufacturing, shall be “subject to such rules and regula- and be extended to the whole United States ? tions as the Secretary of the Interior may If either of these constructions were possiprescribe for the protection of the timber ble, it would result in the destruction of all and of the undergrowth growing upon such timber standing upon public mineral lands, lands, and for other purposes.” The am- as well as in an unfair discrimination biguity arises from the words which we have against those less favorably situated, who italicized. They express a purpose different are compelled to pay for the fuel consumed from the protection of the timber and un- in the treatment of ores. I do not think dergrowth, but they cannot, we repeat, be the word “other” can be used as an enlargeextended to grant a power to take from the ment of the word "domestic," and that it industries designated, whether by the gen should be confined, as are the preceding eral clause or the specific enumeration, the

words, to tiniber used for other analogous permission given by Congress. Judgment affirmed.

structural purposes and for household con

sumption,-in short, to other purposes doMr. Justice Brown, dissenting:

mestic in their character. I am unable to concur in the construction For these reasons I am constrained to disput by the court upon the statute of June 3, sent from the opinion of the court. 1878. Bearing in mind that the policy of

I am authorized to state that Mr. Justice the government has been to preserve its rap-Harlan and Mr. Justice Peckham concur idly diminishing areas of forest lands for in this dissent.

25 S. C.-15.

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(196 U. S. 217) UNION STOCK YARDS COMPANY OF | the shipper to deliver the cars to their OMAHA

places of ultimate destination in the plain

tiff's yards, and receives from the shipper CHICAGO, BURLINGTON, & QUINCY the compensation therefor. The defendant RAILROAD COMPANY.

delivered to the plaintiff upon the transfer

track a refrigerator car of the Hammond Negligence - contribution

Packing Company, used by the defendant to wrong. among doers.

transport the meats of that company, to be

delivered to that company by the plaintiff A terminal company whose negligence toward

in its stock yards. This car was in bad one of its employees in failing, by a proper order, in that the nut above the wheel upon inspection, to discover a defective brake on a the brake staff was not fastened to the car delivered to it by a railroad company has staff, although it covered the top of the been established by a competent tribunal, can staff, and rested on the wheel as though it not enforce contribution or recover indemnity from the railroad company because of the lat

was fastened thereto, and this defect was ter's like neglect of duty.

discoverable upon reasonable inspection.

The plaintiff undertook to deliver the car to [No. 100.]

the Hammond company, and sent Edward

Goodwin, one of its servants, upon it for Argued December 14, 15, 1904. Decided that purpose, who, by reason of this defect, January 9, 1905.

was thrown from the car and injured while

he was in the discharge of his duty. He ON N A CERTIFICATE from the United sued the plaintiff, and recovered a judgment

States Circuit Court of Appeals for the in one of the district courts of Nebraska for Eighth Circuit, presenting a question as to the damages which he sustained by his fall, the liability of a railroad company which on the ground that it was caused by the has delivered a car in bad order to a ter- negligence of the stock yards company in minal company, to indemnify the latter for the discharge of its duty of inspection to its damages which it has been compelled to pay employee. This judgment was subsequently to one of its employees because of its negli affirmed by the supreme court of Nebraska gence in failing properly to inspect the car. (Union Stock-Yards Co. v. Goodwin, 57 Neb. Answered in the negative.

138, 77 N. W. 357), and was paid by the

plaintiff.” Statement by Mr. Justice Day:

Upon this certificate the circuit court of This case comes here on the certificate of appeals propounds the following question: the United States circuit court of appeals “Is a railroad company which delivers a for the eighth circuit. The facts em- car in bad order to a terminal company, bodied therein are: The circuit court of that is under contract to deliver it to its the United States, sitting at Omaha, Neb., ultimate destination on its premises for a sustained a demurrer to the petition of the fixed compensation, to be paid to it by the plaintiff in error against the defendant in railroad company, liable to the terminal

The facts stated in the petition, in company for the damages which the latter substance, are as follows:

has been compelled to pay to one of its em“The plaintiff, the stock yards company, ployees on account of injuries he sustained

, is a corporation which owns stock yards at while in the customary discharge of his South Omaha, Nebraska, railroad tracks ap- duty of operating the car, by reason of the purtenant thereto, and motive power to op- defect in it, in a case in which the defect erate cars for the purpose of switching them is discoverable upon reasonable inspection ?” to their ultimate destinations in its yards from a transfer track which connects its Mr. Frank T. Ransom for stock yards tracks with the railways of the defendant, company. the Burlington company. The Burlington Mr. Charles J. Greene for railroad comcompany, is a railroad corporation engaged pany. in the business of a common carrier of freight and passengers. The defendant Mr. Justice Day delivered the opinion of places the cars destined for points in the the court: plaintiff's yards on the transfer track adja- We take it that this inquiry must be read cent to the premises of the plaintiff, and in the light of the statement accompanythe latter hauls them to their points of ing it. While instruction is asked broadly destination in its yards for a fixed compen- as to the liability of the railroad comsation, which is paid to it by the defendant. pany to the terminal company, for damages The plaintiff receives no part of the charge which the latter has been compelled to pay to the shipper for the transportation of to one of its own employees on account of the cars, but the defendant contracts with l injuries sustained, it is doubtless meant to limit the inquiry to cases wherein such re- 78 Am. St. Rep. 507, 56 N. E. 698, in which covery was had because of the established the opinion was delivered by Mr. Justice negligence of the terminal company in the Holmes, then chief justice of Massachusetts, performance of the specific duty stated, and in which it was held that, as the car, after which it owed to the employee. For it coming into the hands of the receiving commust be taken as settled that the terminal pany, and before it had reached the place company was guilty of negligence after it of the accident, had crossed a point at which received the car in question, in failing to it should have been inspected, the liability perform the duty of inspection required of of the delivering company for the defect in it as to its own employee. The case referred the car, which ought to have been discovered to in the certificate (Union Stock-Yards Co. upon inspection by the receiving company, v. Goodwin, 57 Neb. 138, 77 N. W. 357) is was at an end. A like view was taken by a final adjudication between the terminal the supreme court of Kansas in the case of company and the employee, and it therein Missouri, K. & T. R. Co. v. Merrill, 65 Kan. appears that the liability of the company 436, 59 L. R. A. 711, 93 Am. St. Rep. 287, was based upon the defective character of 70 Pac. 358, reversing its former decision the brake, which defect a reasonably careful in the same case reported in 61 Kan. 671, inspection by a competent inspector would | 60 Pac. 819. But we do not deem the dehave revealed, and it was held that in per- termination of this question necessary to a a mitting the employee to use the car without decision of the present case. discovering the defect the company was Coming to the very question to be deterrendered liable to him for the damages sus mined here, the general principle of law is tained. We have, therefore, a case in which well settled that one of several wrongdoers the question of the plaintiff's negligence has cannot recover against another wrongdoer, been established by a competent tribunal, although he may have been compelled to and the inquiry here is, may the terminal pay all the damages for the wrong done. company recover contribution, or, more In many instances, however, cases have been strictly speaking, indemnity, from the rail. taken out of this general rule, and it has road company because of the damages which been held inoperative in order that the ultiit has been compelled to pay under the cir- mate loss may be visited upon the principal oumstances stated ?

wrongdoer, who is made to respond for all Nor is the question to be complicated by the damages, where one less culpable, ala decision of the liability of the railroad though legally liable to third persons, may company to the employee of the terminal escape the payment of damages assessed company, had the latter seen fit to bring the against him by putting the ultimate loss action against the railroad company alone, upon the one principally responsible for the or against both companies jointly. There injury done.

.

These cases have, perhaps, seems to be a diversity of holding upon the their principal illustration in that class subject of the railroad company's liability wherein municipalities have been held reunder such circumstances, in courts of high sponsible for injuries to persons lawfully authority.

using the streets in a city, because of defects In Moon v. Northern P. R. Co. 46 Minn. in the streets or sidewalks caused by the 106, 24 Am. St. Rep. 194, 48 N. W. 679, and negligence or active fault of a property Pennsylvania R. Co. v. Snyder, 55 Ohio St. owner. In such cases, where the munici342, 60 Am. St. Rep. 700, 45 N. E. 559, it pality has been called upon to respond bewas held that a railroad company was lia- cause of its legal duty to keep public highble to an employee of the receiving company ways open and free from nuisances, a

a who had been injured on the defective car recovery over has been permitted for inwhile in the employ of the latter company demnity against the property owner, the

, when, under a traffic arrangement between principal wrongdoer, whose negligence was the companies, the delivering company had the real cause of the injury. undertaken to inspect the cars upon deliv- Of this class of cases is Washington Gasery, and, as in the Moon Case, where there light Co. v. District of Columbia, 161 U. S. was a joint inspection by the inspectors of 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564, in both companies. This upon the theory that which a resident of the city of Washington the negligence of the delivering company, had been injured by an open gas box, placed when it was bound to inspect before deliv- and maintained on the sidewalk by the gas ery, was the primary cause of the injury, company, for its benefit. The District was notwithstanding the receiving company was sued for damages, and, after notice to the also guilty of an omission to inspect the gas company to appear and defend, damages car before permitting an employee to use were awarded against the District, and it the same.

was held that there might be a recovery by A different view was taken in the case the District against the gas company for of Glynn v. Central R. Co. 175 Mass. 510, the amount of damages which the former

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