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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 number ing state goods coming into it from outside. of such orders it filled them at its place of When the goods have been sold before arbusiness in Columbus, Ohio, by putting up rival the limitations that still may be found the objects of the several orders in distinct to the power of the state will be due, genpackages, and forwarding them to the de-erally, at least, to other reasons, and we fendant by rail, addressed to him “For A. shall consider whether the limitations may B.," the customer, with the number of the not exist, irrespective of that doctrine, in order also on the package, for further iden- some cases where there is no executed sale. tification. The company ultimately kept Hence the prosecution, whatever its assumpthe orders, but it kept no book accounts tion on the point last mentioned, sought to with the customers, looking only to the show that there was no sale until the goods defendant. The defendant alone had au- were delivered and the cash paid for them. thority to receive the goods from the rail. The superior court contented itself with the road, and when he received them he de- suggestion that the contract would have livered them, as was his duty, to the cus- been satisfied by the delivery of articles tomers, for cash paid to him. He then sent corresponding to sample, although bought at the money to the corporation. The cus- the next door. The argument submitted to tomer had the right to refuse the goods if us goes farther, and affirms that the order not equal to the sample shown to him when was not accepted and did not bind the corhe gave the order. In that or other cases poration until the delivery took place. of nondelivery the defendant returned the The answer to the latter of the two posigoods to Columbus. No shipments were tions just stated is simple. The fair meanmade to the defendant except to fill such or- ing of the agreed fact that the orders were ders, and no deliveries were made by him ex- given to agents employed to solicit them is cept to the parties named on the packages. that the company offered the goods, and that In the case of brooms, they were tagged and the orders were acceptances of offers from marked like the other articles, according to the other side. If there were the slightest the number ordered, but they then were reason to doubt that the contracts were tied together into bundles of about a dozen, made with the company through its auwrapped up conveniently for shipment. The thorized agent at the moment when the defendant had no license, but relied upon orders were given, which we do not per: the invalidity of the ordinance, as we have ceive that there is, certainly the contrary said.
could not be assumed in order to sustain If the acts of the plaintiff in error were a conviction.
a conviction. It is for the prosecution to done in the course of commerce between sev- make out its case. We may mention here, eral states, the law is established that his in parenthesis, that of course it does not request for a ruling was right, and that he matter to the question before us that the should have been discharged. Robbins v. contract was made in Pennsylvania. BrenTaxing District, 120 U. S. 489, 497, 30 L. ed. nan v. Titusville, 153 U. S. 289, 38 L. ed. 694, 697, 1 Inters. Com. Rep. 45, 7 Sup. Ct. 719, 4 Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 592; Leisy v. Hardin, 135 U. S. 100, Rep. 829. The other suggestion, that the 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. company would have been free to deliver Ct. Rep. 681; Caldwell v. North Carolina, any articles equal to sample, as well if 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. bought in Pennsylvania as if coming from 229. It will be seen from the insertion of Ohio, of course assumes that there was a the statement concerning the brooms that contract. With regard to this argument it a ground relied upon by the prosecution to might be an interesting question whether avoid that conclusion was that the goods, the shipments described amounted to auor at least this part of them, were not in thorized appropriations of the goods to the the original packages when delivered, and contracts, notwithstanding the fact that the that therefore the case did not fall within deliveries were to be only for cash; but we the decisions last cited, but rather within are not required to go into such niceties. Austin v. Tennessee, 179 U. S. 343, 45 L. The decisions already in the books go as far ed. 224, 21 Sup. Ct. Rep. 132; May v. New as it is necessary for us to go in order to Orleans, 178 U. S. 496, 44 L. ed. 1165, 20 Sup. decide this case. Ct. Rep. 976; and Cook v. Marshall County, "Commerce among the several states” is 196 U. S. 261, 49 L. ed. 471, 25 Sup. Ct. Rep. a practical conception, not drawn from the 233. In other words, it was contended that “witty diversities” ([Yaites v. Gough) the brooms, before they were sold, had be- Yelv. 33) of the law of sales. Swift & Co. come mingled with, or part of, the common Iv. United States, 196 U. S. 375, 398, 399,
49 L. ed. 518, 525, 526, 25 Sup. Ct. Rep. 276., the many decisions upon the matter we
The brooms were specifically appropriated to deem further argument unnecessary to show specific contracts, in a practical, if not in a that the judgment below was wrong. technical, sense. Under such circumstances Judgment reversed. it is plain that, wherever might have been the title, the transport of the brooms for the purpose of fulfilling the contracts was protected commerce. In Brennan v. Titus- FREDERICK L. GRANT SHOE COMPANY, ville, supra, pictures were sold by sample,
Appt., as the brooms were here, and although the pictures were consigned to the purchasers
37 S. E. 138. This court intimated nothing | A PPEAL from the District Court of the
W. M. LAIRD COMPANY. directly, the railroad collecting the price, there was no discussion of the question Appeal—in bankruptcy cases—distinction
between appeal and writ of error. whether the title had passed. In American Exp. Co. v. Iowa, 196 U. S. 133, 143, 49 L. only method of reviewing an adjudication
Writ of error, and not appeal, is the ed. 417, 422, 25 Sup. Ct. Rep. 182, that ques. of bankruptcy entered on a directed vertion was referred to only to be waived. In dict on a jury trial demanded as of right Caldwell v. North Carolina, supra, the pic- by the alleged bankrupt under the bankrupt tures were consigned to the defendant, an act of July 1, 1898 (30 Stat. at L. 551, chap. agent, as here, with the additional facts 541, U. S. Comp. Stat. 1901, p. 3429), § 19, that the pictures and frames were sent in for the determination of the issues as to large packages, which were opened by the insolvency and the commission of acts of agent on their arrival, and that the pic- bankruptcy.* tures, then for the first time, were put into
[No. 63.] their proper frames, and, for all that appears, then for the first time appropriated Argued October 26, 1906. Decided Decem . to specific purchasers. In the court below
ber 17, 1906. all the judges agreed that the title did not pass until delivery. 127 N. C. 521, 526, 527,
United States for the Western District to the contrary. On the special verdict it of New York to review an adjudication of well might be that the sale was by sample, bankruptcy entered on a directed verdict as in Brennan v. Titusville. It was decided at a jury trial demanded as of right by the that the intervention of an agent made no alleged bankrupt for the determination of difference in the result. The superior court the issues as to insolvency and the commisdistinguished that case as one that necession of the acts of bankruptcy. Dismissed sarily involved interstate commerce because for want of jurisdiction. it called for the skill of the seller, but no such fact appears in the case or was referred Statement by Mr. Justice White: to as a ground of decision, and there is no In July, 1903, the W. M. Laird Company sufficient warrant for assuming it to be of Pittsburg, Pennsylvania, commenced protrue.
ceedings in the district court of the United Some argument was made, to be sure, that States for the western district of New York even if the defendant was engaged in inter- to cause the Frederick L. Grant Shoe Comstate commerce when he delivered the goods, pany, a corporation doing business in Rochstill the ordinance bound him. American ester, New York, to be adjudicated involunSteel & Wire Co. v. Speed, 192 U. S. 500, tary bankrupts. The petition was solely 48 L. ed. 538, 24 Sup. Ct. Rep. 365, was es made by the Laird Company, it averring, pecially relied upon. But that decision did among other things, that the shoe company not modify the cases that we have cited. It had less than twelve creditors, and that the dealt with a case where a mass of nails and petitioner was a creditor and had provable iron wire was collected at Memphis from unsecured claims against the shoe company other states, by a manufacturer, for all amounting in the aggregate to more than purposes; some of the goods to be sold on $500. The nature of the claim was detailed the spot, some ultimately to be forwarded at length, and showed that it was one for to purchasers in other states, but no pack- unliquidated damages aggregating $3,732.80, age being consigned to or intended for any asserted to have been suffered by reason of special customer, or free from the chance breaches of an alleged express warranty in of being sold by a new bargain in Tennessee. the sale of merchandise. The alleged bankUnder such circumstances the goods were rupt answered, denying its insolvency and liable to taxation in that state. The dis- the commission of any of the acts of bank. tinction between that case and the present ruptcy averred in the petition, and dedoes not need further emphasis. In view of manded a trial by jury of the said issues. It 27 S. C.-11.
*Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 915.
also denied being indebted in any amount Messrs. Hiram R. Wood and McGuire & to the petitioner.
Wood for appellee. Soon afterwards a motion was made to dismiss the petition on the ground that, Mr. Justice White, after making the forebecause of the nature of the claim held by going statement, delivered the opinion of the Laird Company, that company was not the court: a creditor and the holder of a provable Without considering whether the shoe claim for any amount against the shoe com- company, appellant in this court, is not conpany within the meaning of subdivision bcluded by the decision of the circuit court of § 19 of the bankruptcy act, and conse- of appeals upon the petition asking a review quently was not entitled to file a petition in of the order of the district court in bankbankruptcy against the alleged debtor. The ruptcy, denying the original motion to dismotion to dismiss was denied by the dis- miss, we do not pass upon the question pretrict judge. 125 Fed. 576. In the order en- sented by this appeal, as we find we are tered it was directed that the claim of the without authority to do Elliott v. petitioner be liquidated by the jury at the Toeppner, 187 U. S. 327, 47 L. ed. 200, 23 jury trial demanded by the alleged bank. Sup. Ct. Rep. 133. In the cited case, answerrupt for the determination of the issues as ing a question certified from the United to insolvency and the commission of acts States circuit court of appeals for the sixth of bankruptcy. On the petition of the al circuit, it was held that a judgment that leged bankrupt to review this order it was a person is not a bankrupt, entered by a affirmed by the circuit court of appeals for court of bankruptcy on a verdict of not the second circuit. 66 C. C. A. 78, 130 Fed. guilty in a trial by jury, demanded as of 881.
right under § 19 of the bankruptcy act, was A trial of the issues thus raised was had reviewable only by writ of error. Section before a jury in May, 1905, and, as recited 25a of the bankruptcy act, which authorizes in the record, “at the close of all the evi- appeals, as in equity cases, to be taken to dence, the court having directed the jury to the circuit court of appeals, among other find a verdict that the said alleged bank- j cases, from a judgment adjudging or rerupt did, within four months of the filing fusing to adjudge the defendant a bankof the petition herein, commit an act of rupt, was expressly considered, and it was bankruptcy, in that it transferred a por- held that the provision only applied to judgtion of its property to the German-Ameri- ments adjudging or refusing to adjudge the can Bank of Rochester, one of its creditors, defendant a bankrupt, "when trial by jury with the intent to prefer said German- is not demanded, and the court of bankAmerican Bank over its other creditors, and ruptcy proceeds on its own findings of fact.” that, at the time of said transfer, said al-The reasoning upon which the decision was leged bankrupt was insolvent, and that the based was, in substance, that, as in the petitioner has a provable claim against said character of proceeding under consideration alleged bankrupt for damages for the breach the right to a trial by jury was absolute, of warranty in the sale of shoes, and that such a trial was a trial according to the the amount of such claim of the petitioner course of the common law, and judgments is the sum of $3,454.00, the jury found a therein rendered are revisable only on writ verdict accordingly.” An order was there- of error. P. 332, L. ed. p. 202, Sup. Ct. Rep. upon entered adjudicating the shoe com- p. 135. As, in the case at bar, a jury was pany a bankrupt, and declaring that the demanded, the trial was before such jury, claim of the Laird Company was liquidated and their verdict determined the questions at the sum of $3,454.00. The present appeal at issue, it follows that the record should was then taken.
have been brought to this court by writ of For the purpose of the appeal, and recit- error, and not by appeal. ing that it was pursuant to the require Appeal dismissed. ments 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 WESTERN UNION TELEGRAPH COM. as having been raised at the opening of the
PANY, Plff. in Err., hearing in September, 1905, by motion to dismiss, substantially upon the grounds
CHARLES E. HUGHES. urged in the previous motion to dismiss, which had been passed upon by the court Error to state court-what is highest court
of state, of appeals.
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 jurisdiction to entertain the same,” dismust be directed, where the highest state missed the writ of error. court, although discussing the Federal ques.
Treating the order of dismissal as a final tion in its opinion, and declaring it to be judgment, we are now asked on this writ the inferior court solely and expressly for of error to reverse the ruling of the suwant of jurisdiction.*
preme court of appeals of Virginia. This,
however, we cannot do. It is immaterial [No. 119.]
that the supreme court of appeals was
vested by the state Constitution with apArgued December 6, 1906. Decided Decem- pellate jurisdiction in all cases involving the ber 17, 1906.
constitutionality of a law as being repug
nant to the Constitution of Virginia or of IN N ERROR to the Supreme Court of Ap- the United States, or that, in the opinion de
peals 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 merit. The fact is undoubted that the writ the Corporation Court of the City of Dan- of error was dismissed solely and expressly ville, in that state. Dismissed because writ because of a want of jurisdiction, and the was directed to the wrong court.
effect of the formal entry, adjudging that See same case below, 104 Va. 240, 51 S. E. the court was without jurisdiction to pass 225.
upon the questions presented by the writ of The facts are stated in the opinion. error, cannot be different from what it
Messrs. Rush Taggart, John F. Dillon, would have been had the court not given George H. Fearons, and Francis Raymond expression to its views in a written opinStark for plaintiff in error.
ion. The necessary result of the ruling No counsel for defendant in error.
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:
tions presented by the writ could be deBy statutes of the state of Virginia a lia- cided; and, hence, the writ of error should bility to forfeit the sum of $100 was im- have been directed to that court. Missouri, posed upon a telegraph company for an K. & T. R. Co. v. Elliott, 184 U. S. 530, 539, omission to promptly transmit and deliver 46 L. ed. 673, 678, 22 Sup. Ct. Rep. 446. telegrams received by it. Va. Code 1887, Writ of error dismissed. $$ 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 trans- ALABAMA & VICKSBURG RAILWAY mitted by wire to Pocahontas, Virginia, COMPANY and Robert H. Thompson and and there delivered to the addressee. In Thomas A. McWillie, Its Sureties, Plffs. regular course such message would have
v. gone by way of Bluefield, West Virginia. It reached that point, but was not sent fur. RAILROAD COMMISSION OF THE STATE
OF MISSISSIPPI. ther. For failure to make delivery Hughes sued the telegraph company in the corpora - Carriers-state regulation of railway rates. tion court of the city of Danville to recover The state of Mississippi may, so far the statutory penalty, and obtained a judg- as the Federal Constitution is concerned, esment. Error was prosecuted to the supreme tablish a flat rate of 32 cents per 100 court of appeals of Virginia, upon the con- pounds on grain and grain products carried tention that the transmission of the mes from Vicksburg to Meridian over the road sage in question was interstate commerce,
of the Alabama & Vicksburg Railway Comand not subject to the statutory regulations pany, where that company, under the guise of Virginia, heretofore referred to.
of a “rebilling rate,” gives any Vicksburg The
merchant receiving a car load of grain or appellate court, however, held (104 Va. 240, grain products over the Vicksburg, Shreve51 S. E. 225) that the case was ruled by a port, & Pacific Railroad a rate of 342 cents prior decision (Western U. Teleg. Co. v. Rey- per 100 pounds on any grain he may ship nolds, 100 Va. 459, 93 Am. St. Rep. 971, 41 to Meridian.t S. E. 856), and that such decision had not
[No. 97.] 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.
cember 17, 1906. 214, and being of opinion, as recited on its
writ of was im- N ERROR to the Supreme Court of the
” “no *Ed. Note.-For cases in point, see vol. 13, Cent. #Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Courts, § 1017.
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 342 cents per 100 pounds, dismissing a bill to restrain the enforce- every other merchant in Vicksburg should ment of an order of the state railroad com- be permitted to ship at the same rate, almission establishing a rate on grain and though he had had no dealings with the grain products. Affirmed.
Shreveport company. It is unnecessary to See same case below, 86 Miss. 667, 38 So. inquire whether the order could be sustained 356.
if it appeared that the plaintiff received only
315 cents as its share of a total rate on Statement by Mr. Justice Brewer: through shipments to Meridian from the
On November 16, 1903, the railroad com- Northwest by the Shreveport road; for here, mission of Mississippi, by written order, di- under the guise of a rebilling rate, the rected the Alabama & Vicksburg Railway Vickslurg merchant who dealt with this Company, hereinafter called the Vicksburg Western road was given a rate of 342 per company, to put into effect, over its line of cent on any grain that he might see fit to road from Vicksburg to Meridian, a flat ship to Meridian. While it may be true rate of 342 cents per 100 pounds on grain that a local railway's share of an interand grain products. . December 3, 1903, an state rate may not be a legitimate basis application was made by the railway com- upon which a state railroad commission can pany to the chancellor of the fifth chancery establish and enforce a purely local rate, district of the state to restrain the enforce- set, whenever, under the guise or pretense ment of this order. July 11, 1904, a tem- of a rebilling rate, some merchants are porary injunction issued on the filing of given a low local rate, the commission is the bill was dissolved and the bill dismissed.justified in making that rate the rate for all. On appeal to the supreme court of the state It is not bound to inquire whether it furthis decree of the chancellor was affirmed nishes adequate return to the railway com(86 Miss. 667, 38 So. 356), and thereupon pany, for the state may insist upon equality, this writ of error was sued out.
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.
burg company established a local rate of 342 Messrs. Hannis Taylor, C. H. Alexander, per cent from Vicksburg to Meridian for and Monroe McClurg for defendant in error. those who had, within 90 days, made a ship
ment over the Shreveport road, it estopped Mr. Justice Brewer delivered the opinion itself from complaining of an order making of the court:
that rate applicable to all shipments, no The facts in this case are few. The com- matter whence they arose, and in favor of pany made what it called a "rebilling rate” all merchants, whether those transporting of 312 cents per 100 pounds on grain and over the Shreveport road or not. grain products shipped from Vicksburg to We are not unaware of our decision in Meridian, that rate, however, being applica- Texas & P. R. Co. v. Interstate Commerce ble only in case of shipments over the Vicks-Commission, 162 U. S. 197, 40 L. ed. 940, 5 burg, Shreveport, & Pacific Railroad, here- Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666, inafter called the Shreveport road.
Shreveport road. In- in which, on review of the interstate comstead of being enforced as solely a rebilling merce act, we held that a mere inequality of rate, the Vicksburg merchant who received rate was not always proof of undue disa car load of grain or grain products over the crimination, but we were passing upon an Shreveport road was permitted to either for- act of Congress, and seeking to ascertain its ward it over the plaintiff's road to Meridian, intent and scope. There was no intimation or, at any time within ninety days, in lieu that it was not within the power of Conthereof, send a similar car load, no matter grees to prescribe an absolute equality of whence received, from Vicksburg to Merid- rate. In the present case we are not conian at the same rate. It was in consequence struing an act of the state of Mississippi or of this effort on the part of the plaintiff passing upon the powers which by it are to favor shippers who brought grain to given to the state railroad commission. Vicksburg over the Shreveport road that the Those matters are settled by the decision of railroad commission made the order declar- the supreme court of the state, and the ing that all grain products shipped from question we have to consider is the power Vicksburg to Meridian should be at the of the state to enforce an equality of local same rate, 31/2 cents per 100 pounds. The rates as between all parties shipping for the order of the commission merely meant this: same distance over the same road. That If a Vicksburg merchant who received a car a state has such power cannot be doubted, load of grain over the Shreveport road was and it cannot be thwarted by any action of permitted by the railway company to ship'a railroad company which does not involve