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ert C. Alston, of Atlanta, Ga. (Messrs. Alston, Alston, Foster & Moise, of Atlanta, Ga., of counsel), for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.

apolis, Ind., and John Rabb Emison, of Vincennes, Ind., for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.

(267 U. S. 595)

2

(267 U. S. 596)

No. 850. Leslie WALDECK et al., petition- No. 863. Mary KURAS, Administratrix, ers, v. The UNITED STATES of America. etc., petitioner, v. The MICHIGAN CENTRAL Feb. 2, 1925. For opinion below, see 2 F. (2d) | RAILROAD COMPANY. Feb. 2, 1925. Mo243. Messrs. Clem W. Huggins and Ronald C. Oldham, both of Louisville, Ky., for petitioners. Messrs. Homer Elliott, Alexander G. Cavins, and Dixon H. Bynum, all of Indian

tion for leave to proceed in forma pauperis denied. Petition for a writ of certiorari to the Court of Appeals of Lucas County, State of Ohio, denied.

(45 S.Ct.)

(267 U. S. 222)
FLANAGAN v. FEDERAL COAL CO.
(Argued Oct. 15, 1924. Decided March 2,
1925.)
No. 75.

1. Commerce 40(1)—Seller of coal for de-
livery to buyer's customers in other states
was engaged in "interstate commerce," and
could recover for breach of contract without
dealer's license.

Seller of coal for delivery to buyer's customers in other states was engaged in "interstate commerce," and could recover for breach of contract to purchase coal, though his license tax, as coal dealer, imposed by state statute, had expired at time of buyer's refusal to accept the coal, and though he was a dealer not selling

from own mine.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

2. Commerce 64-Validity of state statute imposing tax could not invalidate contract of dealer engaged in interstate commerce.

State statute, even if valid, in so far as it imposes license tax on dealer engaged in interstate commerce, could not invalidate contract of such dealer for sale of coal to be delivered in other state.

previous week. The Federal Coal Company bought to sell again. It did not receive the coal itself but gave orders to Flanagan who took bills of lading from the Railroad Company at Tracy City in the name of the Federal Coal Company and consigned the coal to that Company's customers in other States as directed. The Company usually did not sell in Tennessee. It broke off its contract because the price of coal went down and, as it said, its customers refused to keep to their bargains in their turn.

[1, 2] There was some discussion below to show that Flanagan also bought this coal as a dealer and so was subject to the law in respect of this transaction. But for the pres ent purpose it is immaterial how he came by what he sold. For if he was engaged in interstate commerce he could not be impeded because he was a dealer any more than if he was selling from his own mine. It was understood between the parties that these dealings were steps in sending coal from the mines to purchasers in other States. Very likely the Federal Coal Company might have stopped the coal at Tracy City in Tennessee, but it had no thought of doing so and Flanagan understood the course of business in which he was expected to cooperate and did cooperate. Therefore in this matter the par

On Writ of Certiorari to the Supreme ties were engaged in interstate commerce and Court of the State of Tennessee.

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*Mr. Justice HOLMES delivered the opinion of the Court.

*226

the state law even if valid as a tax could not
Dahnke-Walker
invalidate their contract.
Milling Co. v. Bondurant, 257 U. S. 282, *290,
42 S. Ct. 106, 66 L. Ed. 239; Lemke v. Farm-
ers' Grain Co., 258 U. S. 50, 42 S. Ct. 244, 66 L.
Ed. 458; A. G. Spalding & Bros. v. Edwards,
262 U. S. 66, 69, 70, 43 S. Ct. 485, 67 L. Ed.
865. We see no sufficient reason for believing
that the decision would have been the same
if the State Court had regarded the trans-

actions as interstate commerce and therefore
its decision must be reversed.
Judgment reversed.

(267 U. S. 395)

LOUISVILLE & N. R. Co. v. UNITED
STATES.

This is a suit for breach of a contract to purchase coal. The only question here is whether the State Courts erred in holding that the plaintiff (Flanagan, the petitioner) could not recover for an undeniable breach (Argued and Submitted Dec. 4, 1924. Decided because at the time when the defendant, the Federal Company, refused to accept the coal the plaintiff's license as a coal dealer had

*225

*expired. The plaintiff says that the transaction was interstate commerce and therefore not subject to such regulation by state laws. The contract was made on August 19, 1920, and bound the plaintiff to deliver and defendant to accept approximately two hundred cars of Tracy City run of mine coal at nine dollars per ton f. o. b. cars mines, i. e., at Tracy City, Tennessee. Shipments to be approximately fifty cars per month. Time, September 1, 1920, to December 31, 1920. Payments to be made weekly for coal shipped in

March 2, 1925.)
No. 29.

1. Carriers 194-Consignee, who accepts shipment, becomes liable for full amount of freight charges.

Generally, a consignee who accepts a shipment becomes liable as a matter of law for the full amount of freight charges.

2. Public lands 86-Government entitled to transportation over land-aided railroads at reduced rates.

Under Land Grant Acts of May 17, 1856, June 3, 1856, March 3, 1857, April 10, 1869, March 3, 1871, and March 3, 1875, the United States was entitled to transportation of its

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

property over land-aided railroads at reduced 8. Public lands

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4. Sales 201(1)-Title passes with delivery. Generally title passes from seller to buyer with delivery of goods.

5. Public lands 86-Title to coal purchased held in government at time of transportation, entitling government to land grant rates. Where contract by which the United States purchased coal, and specifications made part thereof, gave the United States the right to select between delivery at mine and delivery at Gulf ports, provided that, if mine delivery should be selected, the coal should be ordered in carload lots and shipped on government bills of lading, to be furnished by government, and that government, in such event, should pay freight, and that contractor should provide transportation from cars to government barges, tow barges and furnish and deliver water for steam and drinking purposes at various places, and gave government right to inspect coal after transportation, and to reject it if not in accordance with specifications, and where the United States furnished the government bills of lading under which the coal was transported over land-aided railroads, the title, at time of transportation, was in the United States, entitling government to transportation at reduced rates, under Land Grant Acts of May 17, 1856, June 3, 1856, March 3, 1857, April 10, 1869, March 3, 1871, and March 3, 1875.

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86-Land received by rail

roads held part of compensation, under tariffs providing for extra charges where road haul revenue is less than certain amount per ton.

United States was not liable for additional charges for transportation of coal over landaided railroads, under tariff providing for such charges where road haul revenue was less than $1 per ton, though after land grant deduction the balance to be paid in money was less than $1 per ton, since the land received from the government was a part of the compensation for the transportation.

9. Public lands 86-Obligation to carry gov. ernment property at reduced rates part of consideration for grant.

Obligation of land-aided railroads to haul property of the United States at reduced rates was a part of the consideration for which land grant was made, under Land Grant Acts of April 10, 1869, March 3, 1871, and March 3, May 17, 1856, June 3, 1856, March 3, 1857,

1875.

Appeal from the Court of Claims.

Action by the Louisville & Nashville Railroad Company against the United States. Judgment for the United States in the Court of Claims (57 Ct. Cl. 268), and plaintiff appeals. Affirmed.

*396

*Mr. Benjamin Carter, of Washington, D. C., for appellant.

Mr. Blackburn Esterline, of Washington, D. C., for the United States.

Mr. Justice BUTLER delivered the opinion of the Court.

This action was brought in the Court of Claims to recover the amount by which tariff rate freight charges on certain coal were reduced by government land grant deductions; and also to recover certain charges for switching and handling. The court made fendant. 57 Ct. Cl. 268. One of the lines of findings of fact, and gave judgment for deappellant's railroad enters Alabama from the north and extends southerly, through Decatur, Birmingham, and Flomaton, to Pensacola, Fla., and thence easterly to River Junction, Fla. This is a land-aided *line. Appellant has another line extending southwesterly from Flomaton to Mobile. At Mobile and Pensacola, it owns wharves and hoists for transferring coal from cars to boats, and has constructed switches from its main line to the wharves. All of these were built without government aid. The wharves and hoists at Mobile are operated by a coal company and those at Pensacola by appellant.

*397

Land-aided railroads, having accepted freight at reduced rates for transportation of All the coal in question came from mines in goods under government bills of lading, with the Birmingham district and was purchased full knowledge of all the facts, without protest against land grant deductions, could not sub- by the United States for engineering work sequently recover from at Mobile, Pensacola, and other places on amounts deducted, on theory that ownership or near the Gulf, except 250 tons bought for of goods at time of transportation was not in the use of the United States steamship Tonthe United States. opah. It was transported on government

government the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(45 S.Ct.)

bills of lading and was carried in whole or in part by the use of such land-aided railroad. The coal was furnished to the United States under a contract with the Gulf States

Coal Company of March 15, 1915, a contract with the Imperial Coal & Coke Company of August 21, 1916, advertisements, specifications, bids, and acceptances without formal contracts, between November 2, 1914, and September 10, 1917, and a bid and acceptance as of April 8, 1915, for the Tonopah.

The Court of Claims held that all shipments, except those made under the contract of March 15, 1915, were subject to land grant deductions. Appellant maintains that none was subject to the reduced rates. We are of opinion that all the coal, except that furnished the Tonopah, was delivered to and became the property of the United States before it was hauled by appellant, and was entitled to the reduced rates.

[1-3] The general rule is that, if a consignee accepts a shipment, he becomes liable as a matter of law for the full amount of freight charges. Louisville & Nashville R. R. v. Central Iron Co., 265 U. S. 59, 70, 44 S. Ct. 441, 68 L. Ed. 900; Pittsburgh, etc., Ry. Co. v. Fink, 250 U. S. 577, 580, 40 S. Ct. 27, 63 L. Ed. 1151. Under the Land Grant Acts, the United States was entitled to the reduced

#398

*rates if the coal when hauled was its property. Acts of May 17, 1856, June 3, 1856, and March 3, 1857, 11 Stat. 15, 17, 200; Acts of April 10, 1869, and March 3, 1871, 16 Stat. 45, 580; Act of March 3, 1875, 18 Stat. 509; Illinois Central R. R. v. United States, 265 U. S. 209, 44 S. Ct. 485, 68 L. Ed. 983. But the mere use of government forms of bills of lading is not conclusive on the question of ownership of property at the time of transportation, and does not give the United States the right of transportation at land grant rates. See Transportation Involved in Furnishing Articles by Contractor, 20 Comp. Dec. 721, 723.

The contract of March 15, 1915, was made pursuant to advertisement and specifications. The specifications, which were attached to and made a part of the contract, show that, in order to permit the United States to take advantage of land grant rates, the form of proposal contemplated either "delivery of the whole quantity at the mine, from which shipment will then be made on government bill of lading to Mobile, Pascagoula, or Gulfport, as may be necessary, or delivery of about 7,000 tons at Mobile, Ala., about 5.000 tons at Pascagoula, Miss., and about 6,000 tons at Gulfport, Miss." And it was specified:

* *

belonging to the United States and will therefore include in his price his cost for so transferring the coal at all three points of delivery. If prices based on delivery at Mobile, Pascagoula, and Gulfport prove to be more and order will be given for carload lots or advantageous, then these prices will be accepted less as may be required on board United States barges or in bunkers" at the three places *named.

*

*399

The contract contains the following:

specifications hereunto attached, which form a "In conformity with the advertisement and part of this contract, the said contractor shall furnish and have delivered on United States barges, or in bunkers, from hoists, in carload lots, at Mobile, Alabama, when requested, eighteen thousand short tons, more or less. Coal to be shipped on government bill of lading, to be furnished by the contracting officer, the United States to pay railroad freight charges between Dixiana [where the mines were located] and Mobile, and the contractor to provide for transferring the coal from cars to United States barges and to pay all demur. rage charges that may accrue."

The United States reserved the option to

call on the contractor to tow the coal from Mobile to Pascagoula and Gulfport, and agreed to make additional payments for that service, and also reserved the right to inspect and test the coal after transportation and to reject such as did not conform to specifications. The purchase price was to be paid after delivery and final acceptance.

[4, 5] The language, "shall furnish and have delivered on United States barges, *

if it stood alone, might be taken to indicate that delivery was to be made after transportation. But when read, as it must be, with the advertisement and specifications, and in the light of what was done, it appears with reasonable certainty that delivery at the mines was contemplated. The specifications distinctly show that if mine delivery should be selected, the coal would be ordered in carload lots and shipped on government bills of lading. In harmony with that provision, the contract required shipment in carload lots on forms of bills of lading furnished by the contracting officer, and bound the United States to pay freight charges from the mine to Mobile. This meant that the contractor was not to be concerned with or responsible for the

*400

transportation by rail. But, if delivery *at Gulf ports had been selected, the contractor would have been bound to hire the carrier and to pay the freight. The provisions of the contract and specifications together "The United States will select the method of amount to a declaration of the parties that delivery which under the proposals received there was to be delivery of the whole quanproves to be most economical and advantageous. If mine delivery is selected, the coal tity at the mine, and the conduct of the parwill be ordered in carload lots for shipment on ties was in harmony with that purpose and government bills of lading to be furnished by inconsistent with an intention that delivery the contracting officer, but the contractor will to the United States should be made after be required to transfer it from cars to barges transportation by rail was ended. The gen

The contract contemplated service by the contractor, as well as the sale of coal. The contractor agreed to have the coal transferred from cars to government barges, his compensation therefor to be included in the price, and agreed for specified prices to tow it to points on the Gulf coast, if requested so to do, and also undertook to furnish and

eral rule is that title passes from seller to, lant. There is nothing to indicate that title buyer with the delivery of the goods. All the passed before delivery at the vessel. coal except that furnished the Tonopah was [7] We agree with the Court of Claims delivered by the seller to the United States that acceptance of payment of the land grant at the mines on board railroad cars of appel-rates concludes appellant. Its conduct was lant, a common carrier designated by the inconsistent with an intention to claim the United States by the furnishing of govern- amount of land grant deduction, as to any of ment bills of lading. It must be held that the coal. Appellant rendered bills as to the title passed at the time of such deliveries. coal furnished under the above-mentioned See United States v. Andrews, 207 U. S. 229, contracts of March 15, 1915, and August 21, 240, 243, 28 S. Ct. 100, 52 L. Ed. 185. 1916, upon which it stated the basic rate and the amount to be deducted on account of land grant, and claimed the net remaining after the deduction. There was no evidence tending to show that, in presenting its bills at land grant rates, appellant did not act with full knowledge of all the facts. Settlements for transporting some of the coal were made after the commencement of *this suit, April 26, 1916, but before the amended and supplemental petition was filed, January 9, 1922. Appellant did not protest against any land grant deductions. It is bound by its acquiescence and consent and cannot recover the amounts deducted. Oregon-Washington R. R. Co. v. United States, 255 U. S. 339, 345, 41 S. Ct. 329, 66 L. Ed. 667; New York, New Haven & Hartford R. R. v. United States, 251 U. S. 123, 127, 40 S. Ct. 67, 64 L. Ed. 182; New York, New Haven & Hartford R. R. v. United States, 258 U. S. 32, 42 S. Ct. 209, 66 L. Ed. 448; Louisville & Nashville R. R. v. United States, 258 U. S. 374, 42 S. Ct. 337, 66 L. Ed. 668.

deliver at various places some 9,000,000 gallons of fresh water for steam and drinking

purposes. The services were not essential to

or part of the sale, and, as against the other facts found the agreements to transfer and tow the coal do not indicate that the parties intended that delivery by the seller to the purchaser should not be made until after transportation. Hatch v. Oil Co., 100 U. S. 124, 137, 25 L. Ed. 554; McElwee v. Metropolitan Lumber Co., 69 F. 302, 305, 16 C. C. A. 232; H. Baars & Co. v. Mitchell, 154 F. 322, 326, 83 C. C. A. 466.

The United States reserved the right to inspect and test the coal after transportation and to reject it, if found not to conform to

*401

*402

[8,9] The Court of Claims was right in disallowing additional pay for switching cars to wharves or for transferring coal from cars to boats. The tariff rates on this coal for bunkerage and purposes other than export or

specifications. None of the coal was *rejected. This right was not inconsistent with transfer of title to the United States at the time of delivery of the coal on cars at the mine. Dela-coastwise traffic were $1.10 per short ton via ware, Lackawanna & Western R. R. v. United States, 231 U. S. 363, 371, 372, 34 S. Ct. 65, 58 L. Ed. 269; Illinois Central R. R. v. United States, supra.

Flomaton to Mobile or Pensacola. Under the tariff the cost of transferring such coal from cars to vessels at Mobile and Pensacola was assumed by appellant, where the road haul revenue was $1 per ton or more; but if such revenue was less there was an additional

By the contract of August 21, 1916, the seller expressly agreed to deliver the coal on railroad cars at the mines at Dixiana. De-charge of 10 cents per ton, plus $2 per car for liveries of the coal furnished without formal contracts were covered by specifications which were the same as those forming a part of the contract of March 15, 1915.

switching, subject to a maximum of $1 per ton. After land grant deduction, the balance to be paid in money was less than a dollar per ton. But the land grant, made many [6] The conclusion that the coal furnished years ago, in aid of the railroad enterprise the Tonopah was to be delivered at the mine was not a mere gift or gratuity. See Burke is not sustained by the facts found. Under v. Southern Pacific R. R. Co., 234 U. S. 669, the invitation to bid, proposal and accept- 679, 34 S. Ct. 907, 58 L. Ed. 1527. The carance, delivery was to be made alongside the rier's obligation to haul property of the Unitvessel at Pensacola. The coal was trans-ed States at reducted rates was a part of the ported on government bills of lading. The consideration for which the land grant was United States paid the freight less land grant deductions. The use of government bills of lading and the payment of reduced charges by the United States are not sufficient to sustain a finding that the coal was the property of the United States when hauled by appel

made. Part of appellant's compensation for hauling the coal was paid in land, and the balance was paid in money. It cannot be said that the total was less than a dollar per ton.

Judgment affirmed.

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