We quote from Fort Leavenworth R. Co. v. Loewe,

supra:

"These authorities are sufficient to support the proposition which follows naturally from the language of the Constitution, that no other legislative power than that of congress can be exercised over lands within a State purchased by the United States with her consent for one of the purposes designated; and that such consent under the Constitution operates to exclude all other legislative authority.

*

"But * * where, therefore, lands are acquired in any other way by the United States within the limits of a State than by purchase with her consent, they will hold the lands subject to this qualification: that if upon them forts, arsenals, or other public buildings are erected for the uses of the general government, such buildings with their appurtenances as instrumentalities for the execution of its powers will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed. Such is the law with reference to all instrumentalities created by the general government. Their exemption from State control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers. But when not used as such instrumentalities, the legislative power of the State over the places acquired will be as full and complete as over any other places within her limits."

In each of the cases cited it will be found either that there was an express reservation of jurisdiction, as in the case from which we are quoting, or as in the case of Barrett v. Palmer, supra, the land was not used for the purpose for which it was ceded.

After all is said, the instant case must be decided upon the construction put upon the following, contained in the act of 1881:

"Provided, that this cession is upon the express condition that the State of Michigan shall so far retain concurrent jurisdiction with the United States over the Saint Mary's Falls ship canal, and in and over all

lands acquired or hereafter acquired, for its use; that any civil or criminal process issued by any court of competent jurisdiction, or officers having authority of law to issue such process, and all orders made by such court, or any judicial officer duly empowered to make such orders, and necessary to be served upon any such person, may be executed upon said Saint Mary's Falls ship canal, its lands, and in the buildings that may be erected thereon, in the same way and manner as if jurisdiction had not been ceded as aforesaid."

Does this mean, as contended by appellant, that, in the absence of legislation by congress, the legislature of Michigan may legislate upon the subject of employers and employed and have the legislation as effective over the ceded lands as though there had been no cession of the lands? If, though the lands were ceded in 1881, the legislature may make effective in 1912 an employers' liability law, where is the limitation upon legislative authority? May it fix the hours of labor and thus indirectly affect the contracts which the Federal government may be able to make in relation to the construction of locks and other governmental work? Such a construction of the proviso would be exceedingly embarrassing to the general government and we think is untenable. See United States v. Cornell, 2 Mason, 60; United States v. Tucker, 122 Fed., at p. 521, and the many cases cited there; Benson v. United States, 146 U. S. 325. Other authorities are found in the brief of the appellee.

The jurisdiction reserved was for the purpose of providing there should be no neutral territory where civil and criminal process might not be served.

Judgment is affirmed, with costs to the defendant. BIRD, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred with MOORE, J.

OSTRANDER, C. J. It is said in the opinion of Justice MOORE:

"Returning to the first question presented by appellant, namely, that of jurisdiction. Before entering upon its discussion, we think it well to say that, even conceding that the employers' liability law is operative over the place of the accident, we think it doubtful if the record discloses a case of actionable negligence on the part of the employer."

I am in doubt as to the meaning, and, given any meaning, the significance of the last-quoted sentence, and express no opinion upon the point stated. I concur in affirming the judgment.

MT. CLEMENS SUGAR CO. v. GRAND TRUNK RAILWAY CO.

1. RAILROADS-DEMURRAGE QUESTION FOR JURY -DIRECTED VER

DICT.

In an action against a railroad company for the recovery of demurrage charges paid under protest by plaintiff, the owner of a beet sugar factory, under threat of withdrawal of defendant's switch engine and crew in case of refusal, where the evidence was conflicting as to whether delay in unloading cars during the free time allowed by the law was occasioned by plaintiff or defendant, the issue was properly submitted to the jury, and the court below was not in error in refusing to direct a verdict for defendant.

2. SAME-APPEAL AND ERROR-TRIAL-INSTRUCTIONS.

Refusal of the trial court to instruct the jury that the switching service on plaintiff's spur track was "plant switching," for which defendant was not liable, was not prejudicial to defendant, where the court in his instructions withdrew from their consideration the question of damages arising from defendant's failure to switch the cars after they were placed on plaintiff's spur; such instruction being in accordance with defendant's contention, it was immaterial whether denominated "plant switching" or "terminal switching."

200-Mich.-3.

3. SAME.

Nor could defendant complain of the court's instruction that defendant had the right to assess demurrage upon cars consigned to plaintiff which were held at nearby stations, upon its road, because of plaintiff's inability to handle them; said instruction being in accordance with defendant's contention.

4. NEW TRIAL-ISSUES-OVERWHELMING WEIGHT OF EVIDENCE. Where the issues of fact were submitted to the jurý under proper instructions, defendant's motion for a new trial on the ground that the verdict for plaintiff was against the overwhelming weight of the evidence was properly refused.

Error to Wayne; Van Zile, J. Submitted June 12, 1917. (Docket No. 37.) Decided March 1, 1918. Rehearing denied June 20, 1918.

Assumpsit by the Mt. Clemens Sugar Company against the Grand Trunk Railway Company for demurrage charges paid under protest. Judgment for plaintiff. Defendant brings error. Affirmed.

L. C. Stanley (Geer, Williams & Martin, of counsel), for appellant.

Thomas A. E. Weadock (John C. Weadock, of counsel), for appellee.

BIRD, J. Plaintiff owns and operates a sugar factory near Mt. Clemens which is connected with defendant's railroad system by means of a spur track about two miles north of Mt. Clemens. During the sugar making seasons of 1906-7, 1908-9, 1909-10, 1911-12, plaintiff, under threat of being deprived of the switch engine and crew, paid certain demurrage charges under protest to defendant, amounting to nearly $20,000. It was claimed that these charges should not have been demanded because plaintiff was not responsible for the delay in unloading the cars during the free time allowed by law, but that the fault lay with defendant because of its failure to

"spot" the loaded cars at the plant and withdraw the empty ones. It was also claimed that defendant's failure in this respect was due to its inadequate yard and track facilities at Mt. Clemens, together with its lack of suitable locomotive power and insufficient rolling stock. Defendant denied these contentions and asserted that plaintiff's failure to release the cars was due to the fact that it ordered more cars shipped at one time than its capacity could take care of, and as a result there were loaded cars awaiting delivery at Mt. Clemens, Milwaukee Junction, Durand, and other nearby stations. Upon this issue of fact much testimony was taken tending to establish the conflicting claims. The question was submitted to the jury and they found the fault lay with defendant, and assessed plaintiff's damages at the sum of $18,334.02. Defendant has removed the proceedings to this court for review, claiming that the trial court was in error because of its refusal to direct a verdict in its behalf.

1. Plaintiff, to establish its contention, showed that its daily capacity was from 35 to 40 cars of beets; that its tracks would hold 159 cars, and that if defendant had had sufficient trackage to have stored the consigned cars and taken care of the empties, there would have been little or no delay in unloading them; that defendant's track facilities at Mt. Clemens consisted of a single main track, a passing track threequarters of a mile in length, a team track which would hold not to exceed 40 cars, and a private siding which it used holding 18 cars; that its track and yard facilities in these years were no greater than they were 30 years ago when Mt. Clemens was much smaller and the traffic much less than at the present time. It was further shown that the spur track to plaintiff's factory connected directly with the main line track instead of with the siding, and this was the cause of much delay on the part of the switching crew, as they