The filing of the schedule with the Com- same state does not make the shipment bemission and the furnishing by the railroad tween such two points, when performed by company of copies to its freight offices in a connecting carrier to which the car was controvertibly evidenced that the tariff of delivered by the original terminal carrier in rates contained in the schedule had been es obedience to the instructions of the owner, , tablished and put in force as mentioned in the regulations of the state railroad commis

an interstate one, and, as such, exempt from the first sentence of the section, and the rail. sion. road company could not have been heard to assert to the contrary. The requirement

[No. 2.] that schedules should be "posted in two public and conspicuous places in every depot,” | Argued October 11, 1906. Decided February etc., was not made a condition precedent to

25, 1907. the establishment and putting in force of the tariff of rates, but was a provision based I STERROR to the Supreme Court of the

State of Texas to review a judgment upon the existence of an established rate, which affirmed a judgment of the Court of and plainly had for its object the affording Civil Appeals, which had, in turn, affirmed of special facilities to the public for ascertaining the rates actually in force. To hold a judgment of the District Court of Tarthat the clause had the far-reaching effect rant County, in that state, in favor of plainclaimed would be to say that it was the in- / tiff in a suit to recover a penalty from a

common carrier for extortion. Affirmed. tention of Congress that the negligent post

See same case below, 97 Tex. 274, 78 S. ing by an employee of but one instead of

W. 495. two copies of the schedule, or the neglect to post either, would operate to cancel the

Statement by Mr. Justice Brewer: previously established schedule,-a conclu

In the district court of Tarrant county, sion impossible of acceptance. While § 6 Texas, on July 28, 1902, the state of Texas forbade an increase or reduction of rates, recovered a judgment against the Gulf, Coloetc., “which have been established and pub- rado, & Santa Fé Railway Company for lished as aforesaid,” otherwise than as pro- $100 as a penalty for extortion in a charge vided in the section, we think the publica- for the transportation of a car load of corn tion referred to was that which caused the from Texarkana, Texas, to Goldthwaite, rates to become operative; and this deduc- Texas. This judgment was sustained by tion is fortified by the terms of § 10 of the both the court of civil appeals (32 Tex. Civ. act, making it a criminal offense for a common carrier or its agent or a shipper or his App. 1, 73 S. W. 429) and the supreme court

of the state. 97 Tex. 274, 78 S. W. 495. employee improperly “to obtain transporta- Thereupon the railway company brought the tion for property at less than the regular

case here on a writ of error. rates then established and in force on the

The case was tried in the district court line of transportation of such common car- without a jury. Findings of fact were made, rier.”

which were sustained by the appellate Whether, by the failure to post an estab

courts. From them it appears that on Jan. lished schedule, a carrier became subject to

uary 13, 1902, the Texas & Pacific Railway penalties provided in the act to regulate Company, which owns and operates a railcommerce, or whether, if damage had been road from Texarkana, Texas, to Fort Worth, occasioned to a shipper by such omission, a Texas, executed a bill of lading by which it right to recover on that ground alone would acknowledged the receipt from the Samuel have obtained, we are not called upon in this Hardin Grain Company at Texarkana, Texcase to decide.

as, of one car of sacked corn consigned to The judgment below is reversed and the shippers, with orders to deliver to Saylor case remanded for further proceedings not & Burnett, at Goldthwaite, Texas. This car inconsistent with this opinion.

of corn was transported by the Texas & Pacific Railway Company to Fort Worth, there delivered to the defendant railway company,

and by it transported to Goldthwaite, where GULF, COLORADO, & SANTA FE RAIL-it arrived on the 17th day of January, 1902. WAY COMPANY, Plff. in Err., When it reached Goldthwaite, Saylor & Bur

nett, who were acting for the Samuel HarSTATE OF TEXAS.

din Grain Company, tendered the charges Interstate commerce-continuous shipment which the agent declined to accept, and de

prescribed by the state railroad commission, - local transportation.

manded and collected a larger sum. The The intention or purpose of the owners of an interstate shipment of a car load following findings state the important facts of grain to forward such car from the orig- upon which the controversy turns: ipal terminal point to another point in the “8. On December 23d, 1901, the Samuel

Hardin Grain Company, at Kansas City, Mis-pounds, which would have been apportioned souri, offered to sell Saylor & Burnett, at as follows: 18 cents from Hudson to KanGoldthwaite, Texas, No. 2 mixed corn at sas City, and 28 cents from Kansas City to 8642 cents per bushel for delivery on rail-Goldthwaite, Texas. The G. C. & S. F. Ry. way track at Goldthwaite, and this offer Co., the T. & P. Ry. Co. and the Kansas was accepted for two car loads of corn. This City Southern Ry. Co. together with othoffer and acceptance was by telegraphic com- er connecting lines from Kansas City, munication between the parties at their re- Missouri, to Goldthwaite, Texas, had esspective places of business. The Hardin Grain tablished a joint tariff of 35 cents per Company did not at that time have the corn, 100 pounds on shipments from Kansas City but on December 24th, 1901, to fill the order, to Goldthwaite via Texarkana and originatit contracted with the Harroun Commissioning in Kansas City, had agreed on a division Company of Kansas City for the purchase,- of that rate between them, and had filed two 66,000-pound cars of No. 2 mixed corn tariff's establishing such rate with the Inat 7542 cents per bushel, to be delivered at terstate Commerce Commission, and by such Texarkana, Texas, to the Hardin Grain Com- steps had brought itself within the provipany. Previously to this the Harroun Com- sions of the interstate commerce laws. mission Company had contracted for the “11. The Hardin Grain Company's officers purchase of two cars of corn to be delivered kept themselves informed of interstate comto it at Texarkana, Texas, and with these mission freight rates and of the state comtwo cars it

it expected to and did fill mission rates, and the reason why they conthe order of the Hardin Grain Company. tracted for the corn to be delivered to them These cars had originated in Hudson, South at Texarkana was because they could fill Dakota. The receiving carrier at Hudson their contract with Saylor & Burnett at was the Chicago, Milwaukee, & St. Paul Rail-'| Goldthwaite at about 142 cents per bushel way company, who issued bills of lading cheaper than they could if they bought the limiting its liability to losses occurring on corn for delivery to them at Kansas City its road, with a like limitation of liability and had it shipped from Kansas City to of all other carriers who should handle said Goldthwaite. corn in transit to its destination. By the "12. At the time of the purchase contract terms of said bills of lading the between the Hardin Grain Company and the corn was consigned to 'Forrester Bros., Tex- Harroun Commission Company, Hardin, the arkana, Texas,' and shipment made in cars manager of the former company, intended of C. M. & St. P. Ry. Co., care of Kansas that the corn to be thereby acquired should City Southern Ry. at Kansas City, Missouri, go to Saylor & Burnett and should be with the privilege to stop the corn at Kan- shipped to Goldthwaite, from Texarkana, as sas City for inspection and transfer. The soon as practicable, and, on December 26th, corn reached Kansas City on December 17th, 1901, two days after this contract for pur1901, was there unloaded, sacked, and trans-chase had been made, Hardin was informed ferred to the Kansas City Southern Railway that the corn with which Harroun CommisCo. who, on December 31st, 1901, is- sion Company expected to fill his order sued bills of lading reciting that the corn would be sacked in Kansas City and be was loaded in cars No. 3845 P. G. and No. shipped out of Kansas City to Texarkana, 4189 P. G., that same was received of For- but at the time of making the contract he rester Bros. and consigned as follows: did not know from whence the corn would 'Shipper's order, notify Harroun Commis- come. sion Company, Texarkana, Texas,' and re- "13. On December 31st, 1901, the date of citing further that freight 14 cents per hun shipment from Kansas City to Texarkana. dred pounds was prepaid, and one of these Harroun Commisssion Company informed cars, to wit, car 'No. 3845 P. G' is the car the Hardin Grain Company that the corn to in controversy in this suit.

fill the latter's order had been loaded to “9. The Harroun Commission Company start to Texarkana, and requested instrucpaid no freight on the corn from Hudson, tion as to how the corn should be shipped South Dakota, to Texarkana, Texas, as it from Texarkana for the guidance of F. L. had purchased it to be delivered at Texar- Atkins, their agent at that place, who would kana.

attend to such reshipping for the Hardin “10. The freight on the corn from Hudson Grain Company, as per former understandto Texarkana was as follows: 18 cents per ing. Thereupon and in compliance with such 100 pounds from Hudson to Kansas City and request blank bills of lading were made out 14 cents from Kansas City to Texarkana, all by the Hardin Grain Company in Kansas of which was paid by the vendors of Har- City and furnished to the Harroun Commisroun Commission Company. The minimun sion company, to be forwarded to F. L. At

. interstate rate from Hudson, South Dakota, kins. These bills of lading were to be exto Goldthwaite, Texas, was 46 cents per 100 lecuted by the Texas & Pacific Railway Com

pany, and F. L. Atkins, as agent for ulations of the state railroad commission the Hardin Grain Company, and were do not control, and the court erred in enfor shipment of the corn to Goldthwaite, forcing the penalty. If, however, it was a Texas, consigned to ‘Shipper's order, purely local shipment, the judgment below notify, etc.' giving the numbers and in- was right and should be sustained. itials of cars, which information had been The facts are settled by the special findfurnished by the Harroun Commission Comings, those findings being conclusive upon pany, and on January 14, 1902, the reship- this court. Dower v. Richards, 151 U. S. ment having been made as per instructions, 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452; the bills of lading duly executed by the Tex. Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, as & Pacific Ry. Co. were by Harroun deliv- 17 Sup. Ct. Rep. 300; Thayer v. Spratt, 189 ered to Hardin Grain Company, who there- U. S. 346, 47 L. ed. 845, 23 Sup. Ct. Rep. upon paid the Harroun Commission Com- 576; Adams v. Church, 193 U. S. 510, 48 pany $1,779.64, the purchase price previous. L. ed. 769, 24 Sup. Ct. Rep. 512; Clipper ly agreed upon for the corn, and the receipt Min. Co. v. Eli Min. & Land Co. 194 U. S. of said blank bills of lading by the Har- 220, 48 L. ed. 944, 24 Sup. Ct. Rep. 632. roun Commission Company was the first in- The corn was carried from Texarkana, formation had by that company of the in- Texas, to Goldthwaite, Texas, upon a bill tended final destination and disposition of of lading which, upon its face, showed only the corn.

a local transportation. It is, however, con"14. Neither Hardin Grain Company nor tended by the railway company, that this Harroun Commission Company had any local transportation was a continuation of store or warehouse at Texarkana, but, under a shipment from Hudson, South Dakota, to the agreement between the two companies Texarkana, Texas; that the place from (Hardin and Harroun), one F.L. Atkins, who which the corn started was Hudson, South was the agent of the Harroun Commission Dakota, and the place at which the transCompany, and stationed at Texarkana, re- portation ended was Goldthwaite, Texas; shipped the corn at Texarkana for the Har- that such transportation was interstate din Grain Company. That shipment was to commerce, and that its interstate character Goldthwaite, Texas, over the Texas & Pa- was not affected by the various changes of cific Ry. Co. and the G. C. & S. F. Ry. Co., title or issues of bills of lading intermediby bill of lading reciting its receipt from ate its departure from Hudson and its arHardin Grain Company, and consigned to rival at Goldthwaite. 'Shipper's order, notify Saylor & Burnett, It is undoubtedly true that the character Goldthwaite, Texas,' and was transferred un- of a shipment, whether local or interstate, der original seals and without breaking is not changed by a transfer of title during packages, to the Texas & Pacific Ry. Co., the transportation. But whether it be one after having remained in Texarkana five or the other may depend on the contract of days; the only thing done by F. L. Atkins shipment. The rights and obligations of was to surrender the Kansas City Southern carriers and shippers are reciprocal. The bill of lading, have the cars set over on first contract of shipment in this case was the T. & P. Ry., and take a bill of lading from Hudson to Texarkana. During that from the latter company. The corn reached transportation a contract was made at KanTexarkana January 7th, 1902, and was sas City for the sale of the corn, but that shipped out from Texarkana January 13th, did not affect the character of the shipment 1902; the defendant was not a party to the from Hudson to Texarkana. It was an inbill of lading executed at Texarkana. terstate shipment after the contract of

"15. On December 31st, 1901, Hardin Grain sale as well as before. In other words, the Co. mailed to Saylor & Burnett an invoice transportation which was contracted for, and of the corn in the form of an account, stat- which was not changed by any act of the ing the car numbers and initial, the amount parties, was transportation of the corn from of corn, and price to be paid by Saylor & Hudson to Texarkana,—that is, an interBurnett."

state shipment. The control over goods in

process of transportation, which may be reMessrs. Gardner Lathrop, A. B. Browne, peatedly changed by sales, is one thing; the and J. W. Terry for plaintiff in error. transportation is another thing, and follows

Mr. Robert Vance Davidson for defendant the contract of shipment, until that is in error.

changed by the agreement of owner and car

rier. Neither the Harroun nor the Hardin Mr. Justice Brewer delivered the opinion company changed or offered to change the of the court:

contract of shipment or the place of deliv. The single question in the case is whether, ery. The Hardin company accepted the as between Texarkana and Goldthwaite, this contract of shipment theretofure made, and was an interstate shipment. If so, the reg- purchased the corn to be delivered at Tex

owner.

arkana,—that is, on the completion of the Again, it appeared that this corn remained existing contract. When the Hardin com- five days in Texarkana. The Hardin company accepted the corn at Texarkana the pany was under no obligation to ship it transportation contracted for ended. The further. It could, in any other way it saw carrier was under no obligations to carry it fit, have provided corn for delivery to Saylor further. It transferred the corn, in obedi- & Burnett, and unloaded and used that car ence to the demands of the owner, to the of corn in Texarkana. It must be rememTexas & Pacific Railway Company, to be bered that the corn was not paid for by the delivered by it, under its contract with such Hardin company until its receipt in Tex

Whatever obligations may rest upon arkana. It was paid for on receipt and dethe carrier at the terminus of its transpor- livery to the Harain company. Then, and tation to deliver to some further carrier, in not till then, did the Hardin company have obedience to the instructions of the owner, full title to and control of the corn, and it is acting not as carrier, but simply as a that was after the first contract of transforwarder. No new arrangement having portation had been completed. been made for transportation, the corn was It must further be remembered that no delivered to the Hardin company at Texar- bill of lading was issued from Texarkana kana. Whatever may have been the thought to Goldthwaite until after the arrival of the or purpose of the Hardin company in respect corn at Texarkana, the completion of the to the further disposition of the corn was first contract for transportation, the accepta matter immaterial so far as the com- ance and payment by the Hardin company. pleted transportation was concerned.

In many cases it would work the grossest In this respect there is no difference be- injustice to a carrier if it could not rely on tween an interstate passenger and an inter the contract of shipment it has made, know state transportation. If Hardin, for in- whether it was bound to obey the state or stance, had purchased at Hudson a ticket for Federal law, or, obeying the former, find interstate carriage to Texarkana, intending itself mulcted in penalties for not obeying all the while after he reached Texarkana to the law of the other jurisdiction, simply bego on to Goldthwaite, he would not be en-cause the shipper intended a transportation titled, on his arrival at Texarkana, to a new beyond that specified in the contract. It ticket from Texarkana to Goldthwaite at must be remembered that there is no prethe proportionate fraction of the rate presumption that a transportation when comscribed by the Interstate Commerce Com- menced is to be continued beyond the state mission for carriage from Hudson to Gold-limits, and the carrier ought to be able to thwaite. The one contract of the railroad depend upon the contract which it has made, companies having been finished, he must and must conform to the liability imposed make a new contract for his carriage to by that contract. Goldthwaite, and that would be subject to We see no error in the proceedings, and the law of the state within which that car- the judgment of the Supreme Court of Texriage was to be made.

as is affirmed. The question may be looked at from another point of view. Supposing a car load of goods was shipped from Goldthwaite to Texarkana under a bill of lading calling for HUGH WALLACE, Will Wallace, Verge only that transportation, and supposing that

Goodwin, et al., Plffs. in Err., the laws of Texas required, subject to pen. MRS. ELLA ADAMS, for Herself and as alty, that such goods should be carried in a MRS. ELLA ADAMS, for Herself and as

Natural Guardian and Next Friend of particular kind of car,-can there be any

Henry McSwain and Roma McSwain, Her doubt that the carrier would be subject to

Minor Children. the penalty, although it should appear that the shipper intended, after the goods had Indians-new remedy by review in citizenreached Texarkana, to forward them to some ship cases-vested rights. other place outside the state? To state the 1. Congress could constitutionally emquestion in other words,- if the only con- power the Choctaw and Chickasaw, citizentract of shipment was for local transporta- ship court, created by the act of July 1, tion, would the state law in respect to the 1902 (32 Stat. at L. 641, chap. 1362), to remode of transportation be set une side by a ments of the United States courts of the

view and annul, for irregularities, the judgFederal law in respect to interstate trans- Indian territory in Indian citizenship cases, portation, on the ground that the shipper although, by the terms of the act of June intended, after the one contract of shipment 10, 1896 (29 Stat. at L. 339, 340, chap. 398), had been completed, to forward the goods those judgments had become final. to some place outside the state?

Coe v. Judgments—test case-effect as to persons Errol, 116 U. S. 517-527, 29 L. ed. 715-718, not parties. 6 Sup. Ct. Rep. 475.

2. A decree of the Choctaw and Chicka

V.

I

saw citizenship court in the test case against case is to be found in the opinion of the ten persons who had been admitted to citi- United States circuit court of appeals. An zenship or enrolment by the United States entire restatement of these matters is, therecourts in the Indian territory, vacating, for fore, unnecessary. certain irregularities, the judgments of those courts, is binding on a person similarly sit

There is but a single matter to be deter

mined. uated who was not made a party, but who

As counsel for plaintiffs in error did not avail himself of his privilege, under say: the act of July 1, 1902, to transfer

his indi- "The assignment of errors presents but vidual case from the territorial court to the one question. If the decree of the Choctawcitizenship court, but chose to abide the out- Chickasaw citizenship court, in the test case come of the case against the ten represent- known as the Riddle Case, vacated the deatives of his class.

cree that defendant, Hill, had, theretofore,

procured in the United States court for the [No. 260.)

southern district of the Indian territory, Argued December 21, 1906. Decided Febru- wherein he was adjudged to be a member of ary 25, 1907.

the Choctaw tribe of Indians, this case

should be affirmed. If it did not, it should N ERROR to the United States Circuit be reversed.”

Court of Appeals for the Eighth Circuit To properly appreciate and rightly answer to review a judgment which affirmed a judg. this single question some things in the hisment of the United States Court of Appeals tory of the legislation and litigation and alof the Indian Territory, which had, in turn, so some of the facts in this case must be affirmed a judgment of the United States noticed. Court for the Southern District of that ter- In order to divide the lands of these Inritory, in favor of plaintiffs in an action dian nations an enumeration of the indito recover the possession of real property. viduals entitled thereto became necessary. Affirmed.

By the act of March 3, 1893 (27 Stat. at See same case below. 143 Fed. 716.

L. 645, chap. 209, § 16), the commission to The facts are stated in the opinion. the Five Civilized Tribes, generally known

Messrs. A. C. Cruce, Jackson H. Ralston, as the Dawes Commission, was empowered Frederick L. Siddons, William E. Richard- to negotiate and extinguish the tribal title son, W. I. Cruce, and W. R. Bleakmore for to the lands and to make an allotment thereplaintiffs in error.

of to the members of the tribe in severalty. Messrs. George A. Mansfield, J. F. Mc- By that of June 10, 1896 (29 Stat. at L. Murray, and Melven Cornish (by special 339, 340, chap. 398), the commission was leave) for Choctaw and Chickasaw Nations. authorized to hear the application and de

termine the right of each applicant for Mr. Justice Brewer delivered the opinion citizenship in either of these tribes. The of the court:

act also granted an appeal to the proper This was an action commenced in Sep- United States district court in the Indian tember, 1904, by Mrs. Ella Adams, for her territory to any party aggrieved by the self and her minor children, defendants in ruling of the commission, and declared that error, in the United States court for the the judgment of that court should be final. southern district of the Indian territory, to It required the commission to make a comrecover possession of a tract of land in that plete roll of the citizens of each of the territory. Defendants answered, and, upon tribes, to be "hereafter held and considered trial, judgment was rendered in favor of to be the true and correct rolls of persons plaintiffs. This judgment was sustained by entitled to the rights of citizenship in said the United States court of appeals of the several tribes." Hill, who is the principal Indian territory, and, on further appeal, re- defendant, applied to be enrolled as a citiaffirmed by the United States circuit court zen of the Choctaw Nation, and his applicaof appeals for the eighth circuit. 143 Fed. tion was finally sustained by the court, and 716.

he was, on March 8, 1898, adjudged to be The case arises out of the legislation of a member of

of the Choctaw tribe by Congress designed to secure the disintegra- | blood and entitled to be enrolled tion of the tribal organization of the Five such. The land in controversy was. seCivilized Tribes in the Indian territory, and lected and taken possession of by him in rethe distribution of the property of those liance upon this adjudication of citizentribes among the individual Indians. A ship. On July 1, 1898, Congress passed an full résumé of this legislation and the gen- act (30 Stat. at L. 591, chap. 545) granteral litigation following it is to be founding to the tribes an appeal to the Supreme in Stephens v. Cherokee Nation, 174 U. S. Court from the judgments of the United 445, 43 L. ed. 1041, 19 Sup. Ct. Rep. 722, States courts of the Indian territory in and a full statement of the facts in this citizenship cases. Under the authority of

as