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When the goods have been sold before arrival the limitations that still may be found to the power of the state will be due, generally, at least, to other reasons, and we shall consider whether the limitations may not exist, irrespective of that doctrine, in some cases where there is no executed sale. Hence the prosecution, whatever its assumption on the point last mentioned, sought to show that there was no sale until the goods were delivered and the cash paid for them. The superior court contented itself with the suggestion that the contract would have been satisfied by the delivery of articles corresponding to sample, although bought at the next door. The argument submitted to us goes farther, and affirms that the order was not accepted and did not bind the corporation until the delivery took place.

The following is a shortened statement of | mass of goods in the state, and so subject the facts agreed. An Ohio corporation em- to the local law. But the doctrine as to ployed an agent to solicit in Sunbury retail original packages primarily concerns the orders to the company for groceries. When right to sell within the prohibiting or taxthe company had received a large numbering state goods coming into it from outside. of such orders it filled them at its place of business in Columbus, Ohio, by putting up the objects of the several orders in distinct packages, and forwarding them to the defendant by rail, addressed to him "For A. B.," the customer, with the number of the order also on the package, for further identification. The company ultimately kept the orders, but it kept no book accounts with the customers, looking only to the defendant. The defendant alone had authority to receive the goods from the railroad, and when he received them he delivered them, as was his duty, to the customers, for cash paid to him. He then sent the money to the corporation. The customer had the right to refuse the goods if not equal to the sample shown to him when he gave the order. In that or other cases of nondelivery the defendant returned the goods to Columbus. No shipments were made to the defendant except to fill such orders, and no deliveries were made by him except to the parties named on the packages. In the case of brooms, they were tagged and marked like the other articles, according to the number ordered, but they then were tied together into bundles of about a dozen, wrapped up conveniently for shipment. The defendant had no license, but relied upon the invalidity of the ordinance, as we have said.

If the acts of the plaintiff in error were done in the course of commerce between several states, the law is established that his request for a ruling was right, and that he should have been discharged. Robbins v. Taxing District, 120 U. S. 489, 497, 30 L. ed. 694, 697, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681; Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229. It will be seen from the insertion of the statement concerning the brooms that a ground relied upon by the prosecution to avoid that conclusion was that the goods, or at least this part of them, were not in the original packages when delivered, and that therefore the case did not fall within the decisions last cited, but rather within Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132; May v. New Orleans, 178 U. S. 496, 44 L. ed. 1165, 20 Sup. Ct. Rep. 976; and Cook v. Marshall County, 196 U. S. 261, 49 L. ed. 471, 25 Sup. Ct. Rep. 233. In other words, it was contended that the brooms, before they were sold, had become mingled with, or part of, the common

The answer to the latter of the two positions just stated is simple. The fair meaning of the agreed fact that the orders were given to agents employed to solicit them is that the company offered the goods, and that the orders were acceptances of offers from the other side. If there were the slightest reason to doubt that the contracts were made with the company through its authorized agent at the moment when the orders were given, which we do not perceive that there is, certainly the contrary could not be assumed in order to sustain a conviction. It is for the prosecution to make out its case. We may mention here, in parenthesis, that of course it does not matter to the question before us that the contract was made in Pennsylvania. Brennan v. Titusville, 153 U. S. 289, 38 L. ed. 719, 4 Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 829. The other suggestion, that the company would have been free to deliver any articles equal to sample, as well if bought in Pennsylvania as if coming from Ohio, of course assumes that there was a contract. With regard to this argument it might be an interesting question whether the shipments described amounted to authorized appropriations of the goods to the contracts, notwithstanding the fact that the deliveries were to be only for cash; but we are not required to go into such niceties. The decisions already in the books go as far as it is necessary for us to go in order to decide this case.

"Commerce among the several states" is a practical conception, not drawn from the "witty diversities" ([Yaites v. Gough] Yelv. 33) of the law of sales. Swift & Co. v. United States, 196 U. S. 375, 398, 399,

49 L. ed. 518, 525, 526, 25 Sup. Ct. Rep. 276., The brooms were specifically appropriated to specific contracts, in a practical, if not in a technical, sense. Under such circumstances it is plain that, wherever might have been the title, the transport of the brooms for the purpose of fulfilling the contracts was

the many decisions upon the matter we deem further argument unnecessary to show that the judgment below was wrong. Judgment reversed.

Appt.,

V.

W. M. LAIRD COMPANY.

Appeal-in bankruptcy cases-distinction between appeal and writ of error.

protected commerce. In Brennan v. Titus- FREDERICK L. GRANT SHOE COMPANY, ville, supra, pictures were sold by sample, as the brooms were here, and although the pictures were consigned to the purchasers directly, the railroad collecting the price, there was no discussion of the question whether the title had passed. In American Exp. Co. v. Iowa, 196 U. S. 133, 143, 49 L. ed. 417, 422, 25 Sup. Ct. Rep. 182, that question was referred to only to be waived. In Caldwell v. North Carolina, supra, the pictures were consigned to the defendant, an agent, as here, with the additional facts that the pictures and frames were sent in large packages, which were opened by the agent on their arrival, and that the pictures, then for the first time, were put into their proper frames, and, for all that appears, then for the first time appropriated Argued October 26, 1906. Decided Decemto specific purchasers. In the court below all the judges agreed that the title did not until delivery. 127 N. C. 521, 526, 527,

only method of reviewing an adjudication Writ of error, and not appeal, is the of bankruptcy entered on a directed verdict on a jury trial demanded as of right by the alleged bankrupt under the bankrupt act of July 1, 1898 (30 Stat. at L. 551, chap. 541, U. S. Comp. Stat. 1901, p. 3429), § 19, for the determination of the issues as to insolvency and the commission of acts of bankruptcy.*

[No. 63.]

ber 17, 1906.

PPEAL from the District Court of the

pass unt 1 d. This court intimated nothing A United States for the Western District

37 S. E. 138.

to the contrary. On the special verdict it well might be that the sale was by sample, as in Brennan v. Titusville. It was decided that the intervention of an agent made no difference in the result. The superior court distinguished that case as one that necessarily involved interstate commerce because it called for the skill of the seller, but no such fact appears in the case or was referred to as a ground of decision, and there is no sufficient warrant for assuming it to be true.

Some argument was made, to be sure, that even if the defendant was engaged in interstate commerce when he delivered the goods, still the ordinance bound him. American Steel & Wire Co. v. Speed, 192 U. S. 500, 48 L. ed. 538, 24 Sup. Ct. Rep. 365, was especially relied upon. But that decision did not modify the cases that we have cited. It dealt with a case where a mass of nails and iron wire was collected at Memphis from other states, by a manufacturer, for all purposes; some of the goods to be sold on the spot, some ultimately to be forwarded to purchasers in other states, but no package being consigned to or intended for any special customer, or free from the chance of being sold by a new bargain in Tennessee. Under such circumstances the goods were liable to taxation in that state. The distinction between that case and the present does not need further emphasis. In view of 27 S. C.-11.

of New York to review an adjudication of bankruptcy entered on a directed verdict at a jury trial demanded as of right by the alleged bankrupt for the determination of the issues as to insolvency and the commission of the acts of bankruptcy. Dismissed for want of jurisdiction.

Statement by Mr. Justice White:

In July, 1903, the W. M. Laird Company of Pittsburg, Pennsylvania, commenced proceedings in the district court of the United States for the western district of New York to cause the Frederick L. Grant Shoe Company, a corporation doing business in Rochester, New York, to be adjudicated involuntary bankrupts. The petition was solely made by the Laird Company, it averring, among other things, that the shoe company had less than twelve creditors, and that the petitioner was a creditor and had provable unsecured claims against the shoe company amounting in the aggregate to more than $500. The nature of the claim was detailed at length, and showed that it was one for unliquidated damages aggregating $3,732.80, asserted to have been suffered by reason of breaches of an alleged express warranty in the sale of merchandise. The alleged bankrupt answered, denying its insolvency and the commission of any of the acts of bankruptcy averred in the petition, and demanded a trial by jury of the said issues. It

*Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 915.

also denied being indebted in any amount to the petitioner.

Soon afterwards a motion was made to dismiss the petition on the ground that, because of the nature of the claim held by the Laird Company, that company was not a creditor and the holder of a provable claim for any amount against the shoe company within the meaning of subdivision b of § 19 of the bankruptcy act, and consequently was not entitled to file a petition in bankruptcy against the alleged debtor. The motion to dismiss was denied by the district judge. 125 Fed. 576. In the order entered it was directed that the claim of the petitioner be liquidated by the jury at the jury trial demanded by the alleged bankrupt for the determination of the issues as to insolvency and the commission of acts of bankruptcy. On the petition of the alleged bankrupt to review this order it was affirmed by the circuit court of appeals for the second circuit. 66 C. C. A. 78, 130 Fed. 881.

A trial of the issues thus raised was had before a jury in May, 1905, and, as recited in the record, "at the close of all the evidence, the court having directed the jury to find a verdict that the said alleged bankrupt did, within four months of the filing of the petition herein, commit an act of bankruptcy, in that it transferred a portion of its property to the German-American Bank of Rochester, one of its creditors, with the intent to prefer said GermanAmerican Bank over its other creditors, and that, at the time of said transfer, said alleged bankrupt was insolvent, and that the petitioner has a provable claim against said alleged bankrupt for damages for the breach of warranty in the sale of shoes, and that the amount of such claim of the petitioner is the sum of $3,454.00, the jury found a verdict accordingly." An order was thereupon entered adjudicating the shoe company a bankrupt, and declaring that the claim of the Laird Company was liquidated at the sum of $3,454.00. The present appeal was then taken.

For the purpose of the appeal, and reciting that it was pursuant to the requirements of general order in bankruptcy No. 36, the trial judge made and filed findings of fact and conclusions of law. A single question of jurisdiction was also certified as having been raised at the opening of the hearing in September, 1905, by motion to dismiss, substantially upon the grounds urged in the previous motion to dismiss, which had been passed upon by the court of appeals.

Messrs. Hiram R. Wood and McGuire & Wood for appellee.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

Without considering whether the shoe company, appellant in this court, is not concluded by the decision of the circuit court of appeals upon the petition asking a review of the order of the district court in bankruptcy, denying the original motion to dismiss, we do not pass upon the question presented by this appeal, as we find we are without authority to do So. Elliott v. Toeppner, 187 U. S. 327, 47 L. ed. 200, 23 Sup. Ct. Rep. 133. In the cited case, answering a question certified from the United States circuit court of appeals for the sixthcircuit, it was held that a judgment that a person is not a bankrupt, entered by a court of bankruptcy on a verdict of not guilty in a trial by jury, demanded as of right under § 19 of the bankruptcy act, was reviewable only by writ of error. Section 25a of the bankruptcy act, which authorizes appeals, as in equity cases, to be taken to the circuit court of appeals, among other cases, from a judgment adjudging or refusing to adjudge the defendant a bankrupt, was expressly considered, and it was held that the provision only applied to judgments adjudging or refusing to adjudge the defendant a bankrupt, "when trial by jury is not demanded, and the court of bankruptcy proceeds on its own findings of fact." The reasoning upon which the decision was based was, in substance, that, as in the character of proceeding under consideration the right to a trial by jury was absolute, such a trial was a trial according to the course of the common law, and judgments therein rendered are revisable only on writ of error. P. 332, L. ed. p. 202, Sup. Ct. Rep. p. 135. As, in the case at bar, a jury was demanded, the trial was before such jury, and their verdict determined the questions at issue, it follows that the record should have been brought to this court by writ of error, and not by appeal. Appeal dismissed.

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An inferior state court is the final court of the state where the Federal quesMessrs. P. M. French and Satterlee, Bis- tion involved can be decided, and therefore sell, Taylor, & French for appellant. is the court to which a writ of error from

the Supreme Court of the United States | must be directed, where the highest state court, although discussing the Federal question in its opinion, and declaring it to be without merit, dismissed a writ of error to the inferior court solely and expressly for want of jurisdiction.*

IN

[No. 119.]

jurisdiction to entertain the same," dismissed the writ of error.

Treating the order of dismissal as a final judgment, we are now asked on this writ of error to reverse the ruling of the supreme court of appeals of Virginia. This, however, we cannot do. It is immaterial that the supreme court of appeals was vested by the state Constitution with ap

Argued December 6, 1906. Decided Decem- pellate jurisdiction in all cases involving the ber 17, 1906. constitutionality of a law as being repugnant to the Constitution of Virginia or of ERROR to the Supreme Court of Ap- the United States, or that, in the opinion depeals of the State of Virginia to review livered by the court, it discussed the Fedan order dismissing, for want of jurisdic-eral question and declared it to be without tion, a writ of error to review a judgment of the Corporation Court of the City of Danville, in that state. Dismissed because writ was directed to the wrong court.

See same case below, 104 Va. 240, 51 S. E.

225.

The facts are stated in the opinion. Messrs. Rush Taggart, John F. Dillon, George H. Fearons, and Francis Raymond Stark for plaintiff in error.

No counsel for defendant in error.

merit. The fact is undoubted that the writ of error was dismissed solely and expressly because of a want of jurisdiction, and the effect of the formal entry, adjudging that the court was without jurisdiction to pass upon the questions presented by the writ of error, cannot be different from what it would have been had the court not given expression to its views in a written opinion. The necessary result of the ruling that the court had not jurisdiction of the writ of error was to determine that the trial

Mr. Justice White delivered the opinion court was the final court where the quesof the court:

In

By statutes of the state of Virginia a liability to forfeit the sum of $100 was imposed upon a telegraph company for an omission to promptly transmit and deliver telegrams received by it. Va. Code 1887, §§ 1291, 1292. On November 2, 1903, Hughes, the defendant in error, handed to the Western Union Telegraph Company, at its office in Danville, Virginia, a message to be transmitted by wire to Pocahontas, Virginia, and there delivered to the addressee. regular course such message would have gone by way of Bluefield, West Virginia. It reached that point, but was not sent further. For failure to make delivery Hughes sued the telegraph company in the corporation court of the city of Danville to recover the statutory penalty, and obtained a judgment. Error was prosecuted to the supreme court of appeals of Virginia, upon the contention that the transmission of the message in question was interstate commerce, and not subject to the statutory regulations

tions presented by the writ could be decided; and, hence, the writ of error should have been directed to that court. Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 539, 46 L. ed. 673, 678, 22 Sup. Ct. Rep. 446. Writ of error dismissed.

ALABAMA & VICKSBURG
& VICKSBURG RAILWAY
COMPANY and Robert H. Thompson and
Thomas A. McWillie, Its Sureties, Plffs.
in Err.,

V.

RAILROAD COMMISSION OF THE STATE
OF MISSISSIPPI.

Carriers-state regulation of railway rates.

The state of Mississippi may, so far as the Federal Constitution is concerned, establish a flat rate of 32 cents per 100 pounds on grain and grain products carried from Vicksburg to Meridian over the road of the Alabama & Vicksburg Railway Company, where that company, under the guise of a “rebilling rate," gives any Vicksburg merchant receiving a car load of grain or grain products over the Vicksburg, Shreveport, & Pacific Railroad a rate of 32 cents per 100 pounds on any grain he may ship to Meridian. †

[No. 97.]

of Virginia, heretofore referred to. The appellate court, however, held (104 Va. 240, 51 S. E. 225) that the case was ruled by a prior decision (Western U. Teleg. Co. v. Reynolds, 100 Va. 459, 93 Am. St. Rep. 971, 41 S. E. 856), and that such decision had not been overruled by the decision of this court in Hanley v. Kansas City Southern R. Co. Argued November 13, 14, 1906. Decided De187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214, and being of opinion, as recited on its journal, "that the writ of error was improvidently awarded," and that it had "no

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1047.

cember 17, 1906.

N ERROR to the Supreme Court of the
State of Mississippi to review a decree

†Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 2-20.

which affirmed a decree of the Chancellor of | over the Vicksburg road to Meridian any the Fifth Chancery District of that state, other car load at 32 cents per 100 pounds, dismissing a bill to restrain the enforcement of an order of the state railroad commission establishing a rate on grain and grain products. Affirmed.

every other merchant in Vicksburg should be permitted to ship at the same rate, although he had had no dealings with the Shreveport company. It is unnecessary to

See same case below, 86 Miss. 667, 38 So. inquire whether the order could be sustained 356.

Statement by Mr. Justice Brewer:

On November 16, 1903, the railroad commission of Mississippi, by written order, directed the Alabama & Vicksburg Railway Company, hereinafter called the Vicksburg company, to put into effect, over its line of road from Vicksburg to Meridian, a flat rate of 32 cents per 100 pounds on grain and grain products. December 3, 1903, an application was made by the railway company to the chancellor of the fifth chancery district of the state to restrain the enforcement of this order. July 11, 1904, a temporary injunction issued on the filing of the bill was dissolved and the bill dismissed. On appeal to the supreme court of the state this decree of the chancellor was affirmed (86 Miss. 667, 38 So. 356), and thereupon this writ of error was sued out.

if it appeared that the plaintiff received only 3 cents as its share of a total rate on through shipments to Meridian from the Northwest by the Shreveport road; for here, under the guise of a rebilling rate, the Vicksburg merchant who dealt with this Western road was given a rate of 31⁄2 per cent on any grain that he might see fit to ship to Meridian. While it may be true that a local railway's share of an interstate rate may not be a legitimate basis upon which a state railroad commission can establish and enforce a purely local rate, yet, whenever, under the guise or pretense of a rebilling rate, some merchants are given a low local rate, the commission is justified in making that rate the rate for all. It is not bound to inquire whether it furnishes adequate return to the railway company, for the state may insist upon equality, to be enforced under the same conditions against all who perform a public or quasi

Messrs. Harry H. Hall and McWillie & public service. When voluntarily the VicksThompson for plaintiffs in error.

Messrs. Hannis Taylor, C. H. Alexander, and Monroe McClurg for defendant in error.

burg company established a local rate of 32 per cent from Vicksburg to Meridian for those who had, within 90 days, made a shipment over the Shreveport road, it estopped

Mr. Justice Brewer delivered the opinion itself from complaining of an order making of the court:

The facts in this case are few. The company made what it called a "rebilling rate" of 3 cents per 100 pounds on grain and grain products shipped from Vicksburg to Meridian, that rate, however, being applicable only in case of shipments over the Vicksburg, Shreveport, & Pacific Railroad, hereinafter called the Shreveport road. Instead of being enforced as solely a rebilling rate, the Vicksburg merchant who received a car load of grain or grain products over the Shreveport road was permitted to either forward it over the plaintiff's road to Meridian, or, at any time within ninety days, in lieu thereof, send a similar car load, no matter whence received, from Vicksburg to Meridian at the same rate. It was in consequence of this effort on the part of the plaintiff to favor shippers who brought grain to Vicksburg over the Shreveport road that the railroad commission made the order declaring that all grain products shipped from Vicksburg to Meridian should be at the same rate, 32 cents per 100 pounds. The order of the commission merely meant this: If a Vicksburg merchant who received a car load of grain over the Shreveport road was permitted by the railway company to ship

that rate applicable to all shipments, no matter whence they arose, and in favor of all merchants, whether those transporting over the Shreveport road or not.

We are not unaware of our decision in Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666, in which, on review of the interstate commerce act, we held that a mere inequality of rate was not always proof of undue discrimination, but we were passing upon an act of Congress, and seeking to ascertain its intent and scope. There was no intimation that it was not within the power of Congress to prescribe an absolute equality of rate. In the present case we are not construing an act of the state of Mississippi or passing upon the powers which by it are given to the state railroad commission. Those matters are settled by the decision of the supreme court of the state, and the question we have to consider is the power of the state to enforce an equality of local rates as between all parties shipping for the same distance over the same road. That a state has such power cannot be doubted, and it cannot be thwarted by any action of a railroad company which does not involve

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