*86 (250 U. S. 85) NEW YORK CENT. R. CO. v. GOLDBERG. CARRIERS 110-Loss of Goods-LIABILITY with any intent to fraudulently misrepresent the nature of the merchandise shipped. Defendant's clerk who signed the bill of lading relied wholly upon the representations of the driver as to the contents of the case, not seeing the case itself; and, so far as appears, no representative of defendant compared or had a convenient opportunity to compare the bill of At the Innocent misdescription by shipper of furs lading with the marks on the case. shipped, as dry goods, and so copied into the time of the shipment the official freight clasbill of lading, resulting in the lower rate ap-sification filed with the Interstate Commerce plicable to dry goods being charged, does not Commission provided for a first-class rate relieve the carrier from liability in case of their for dry goods (65 cents per hundred pounds), loss, the bill of lading providing merely that the and a double-first-class rate ($1.30 per owner or consignee shall pay the freight and hundred) for furs. As a result of the misall other lawful charges accruing on the proper- description in the bill of lading, freight was ty, and if on inspection it is ascertained that charged at the smaller rate applicable to dry the articles shipped are not those described in the bill of lading, the freight charges must be goods, instead of the higher one applicable to furs. No valuation was placed upon the paid on the articles actually shipped. goods, and no question of limitation of liabil On Writ of Certiorari to the Supreme Court ity to a stipulated value is presented. of the State of New York. Messrs. William Mann and Charles C. Paulding, both of New York City, for petitioner. Defendant admitted that it received the goods for transportation, and that they were stolen in transit and never delivered to the consignee. Re Action by Samuel Goldberg against the New York Central Railroad Company. Judgment for plaintiff in the Supreme Court, Trial Term, New York, was affirmed by the amount *for loss of the goods, because they Defendant insists that it is not liable in any Appellate Division (164 App. Div. 389, 149 were misdescribed in the bill of lading. N. Y. Supp. 629), and by the Court of Ap-liance is placed upon a line of decisions In peals (221 N. Y. 539, 116 N. E. 1047), and de- this court relating to the limitation of liabilfendant brings certiorari. Affirmed. ity of an interstate rail carrier where goods are shipped at a declared value at a rate based upon value and under a contract conforming to the filed tariff. Adams Express Co. v. Croninger, 226 U. S. 491, 509, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Kansas City Southern Ry. v. Carl, 227 U. S. 639, 650, et seq., 33 Sup. Ct. 391, 57 L. Ed. 683; Missouri, Kans. & Texas Ry. v. Harriman, 227 U. S. 657, 670, 33 Sup. Ct. 397, 57 L. Ed. Northern 690; Great Ry. V. O'Connor, 232 U. S. 508, 515, 34 Sup. Ct. 380, 58 L. Ed. 703; Atchison, etc., Ry. Co. v. Robinson, 233 U. S. 173, 180, 34 Sup. Ct. 556, 58 L. Ed. 901; Southern Railway v. Prescott, 240 U. S. 632, 638, 36 Sup. Ct. 469, 60 L. Ed. 836. Mr. Justice PITNEY delivered the opinion of the Court. This was an action brought by respondent against petitioner in the Supreme Court of New York to recover damages equivalent to the value of certain goods shipped in interstate commerce and lost in transit. Plaintiff had judgment in the trial court, which was affirmed by the Appellate Division for the First Department (Goldberg v. New York Cent. R. Co., 164 App. *Div. 389, 149 N. Y. Supp. 629), and affirmed by the Court of Appeals without opinion (221 N. Y. 539, 116 N. E. 1047). The facts are as follows: On September 17, 1912, a firm of fur manufacturers in New York City caused to be delivered to defendant there for transportation to plaintiff at Cincinnati, Ohio, a case containing furs belonging to plaintiff of the value of $693.75. When the case left the consignors' possession it was marked with the name and address of the consignee, and with the word "furs" conspicuously displayed. It was delivered to a local expressman, whose driver delivered it to defendant and made out a bill of lading which defendant signed and upon which the action depends. This bill of lading described the goods as "One case D. G.," which admittedly means "dry goods." The misdescription was the driver's mistake, not made The Appellate Division held that these cases did not go to the extent of relieving the carrier from all liability in case of a nonfraudulent misrepresentation as to the nature of the merchandise shipped, and that since there was no clause in the bill of lading exempting the carrier or limiting its liability in case of such a misdescription the carrier was defenseless. Defendant's contention is that there is no responsibility for loss of the furs that were shipped because they were goods, not of the same, but of a different, character than those described in the bill of lading, and were goods for the transportation of which a higher rate was established by its filed schedules. Were there otherwise any difficulty in answering this contention, it would be wholly relieved by the fact that the precise contingency was anticipated in the preparation of the form For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 88. (39 Sup.Ct.) of the bill of lading and provided for by one 15. CONSTITUTIONAL LAW of its conditions, which reads as follows: 48-STATUTES CONSTRUCTION IN FAVOR OF CONSTITUTION ALITY. "The owner or consignee shall pay the freight A statute being reasonably susceptible of and all other lawful charges accruing on said two interpretations, by one of which it would be property, and, if required, shall pay the same before delivery. If upon inspection it is ascer- clearly constitutional, and by the other of which tained that the articles shipped are not those its constitutionality would be doubtful, the fordescribed in this bill of lading, the freight charg-mer construction should be adopted. es must be paid upon the articles actually shipped." Clearly, the effect of this is that a misdescription of the character of the goods, not attributable to fraud, merely imposed upon the shipper or consignee an obligation to pay freight charges according to the character of the goods actually shipped, and did not affect the liability of the carrier for a failure to deliver the goods. Judgment affirmed. (250 U. S. 118) CAREY V. STATE OF SOUTH DAKOTA. (Submitted April 29, 1919. Decided May 19, 1. GAME ERAL LAWs. 1919.) No. 346. In Error to the Supreme Court of the State of South Dakota. W. E. Carey was prosecuted by the State of South Dakota for shipping game birds. Judgment of conviction was affirmed by the Supreme Court of the state (39 S. D. 524, 165 N. W. 539), and defendant brings error. Af firmed. *Mr. Joe Kirby, of Sioux Falls, S. D., for plaintiff in error. Messrs. Clarence C. Caldwell and Edwin R. Winans, both of Sioux Falls, S. D., for State of South Dakota. ion of the Court. By the federal Migratory Bird Act (Act March 4, 1913, c. 145, 37 Stat. 828, 847 [Comp. St. § 8837]), Congress provided that: "All wild geese, wild swans, brant, wild ducks, 4-SHIPPING-STATE AND FED: Snipe, plover, woodcock, rail, wild pigeons, and 3. GAME 4-FEDERAL STATUTE-SCOPE. Provision of the federal Migratory Bird Act that the migratory birds "shall hereafter be deemed to be within the custody and protection of the *** United States," when read with the words immediately following, which show that the custody and protection is limited to prohibiting their being "destroyed or taken contrary to regulations," which are to fix the closed seasons in the several zones, does not manifest intention of Congress to assume exclusive juris diction of the subject of such birds, with the result that its failure to make any provisions concerning shipping evidences its purpose that shipping of such birds shall not be prohibited. 4. STATES 4. FEDERAL STATUTES - CONSTRUCTION AS TO STATE POLICE POWER. Intent to supersede the exercise by a state of its police powers is not to be implied, unless the act of Congress, fairly interpreted, is in actual conflict with the state law. all other migratory game and insectivorous birds which in their northern and southern migrations pass through or do not remain permanently the entire year within the borders of any state or territory, shall hereafter be deemed to be within the custody and protection of the government of the United States, and shall not be destroyed or taken contrary to regulations hereinafter provided therefor." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *121 or without the state, variety. * For violation of this statute by shipping on November 19, 1915, by express, wild ducks from a point within the state to Chicago, Ill., Carey was prosecuted in a state court. He insisted that the state statute had been abrogated by the federal law. The contention was overruled, and he was convicted by the trial court. Its judgment was affirmed by the Supreme Court of the state (State v. Carey, 39 S. D. 524, 165 N. W. 539). The case comes here on writ of error under section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156 [Comp. St. § 1214]). wild duck of any | in question is limited to forbidding persons It is admitted that, in the absence of federal legislation on the subject, a state has exclusive power to control wild game within its borders and that the South Dakota law was valid when enacted, although it inciden[3-5] It is, however, urged that Congress tally affected interstate commerce. Geer v. has manifested its intention to assume exConnecticut, 161 U. S. 519, 16 Sup. Ct. 600, clusive jurisdiction of the subject; and that 40 L. Ed. 793; Silz v. Hesterberg, 211 U. S. the failure to make any provision in the fed31, 29 Sup. Ct. 10, 53 L. Ed. 75. The con- eral act concerning shipping, evidences the tention made by Carey is that Congress as- purpose of Congress that the shipping of sumed exclusive jurisdiction over this class game birds shall not be prohibited. This arof migratory birds by the 1913 act; that gument rests upon the clause which declares then existing state laws on the subject were that the migratory birds "shall hereafter be thereby abrogated or suspended; that the deemed to be within the custody and propower of the states to legislate on the sub-tection of the government of the United ject was limited to such subsequent *enactments as were designed to render more effective regulations issued by the Department of Agriculture, and that the statute in question was obviously not of that character, both because it antedated the federal act and because the regulations issued under the federal act permitted the killing of wild ducks in South Dakota between September 7 and December 1, during which period the wild ducks shipped on November 19 had presuming the validity of the state law. First. The ably been killed. On behalf of the state, it was contended that this provision of its statute is not inconsistent with the federal law; and that its statute is in any event valid, because the federal law is unconstitutional. United States v. McCullagh (D. C.) 221 Fed. 288. The Supreme Court of South Dakota did not pass upon the constitutional question, but upheld the state statute on the ground that it was not inconsistent with the federal law, since it did not appear that the ducks in question had been killed in violation of any regulation adopted under it. [1, 2] The prohibition of the federal act is limited to the provision that the birds "shall not be destroyed or taken contrary to regulations." The regulations merely prescribe the closed seasons; that is, neither the federal law nor the regulations deal with shipping.1 The prohibition of the state law here 1 The Migratory Bird Treaty Act (Act July 3, 1918, c. 128, 40 Stat. 755 [Comp. St. 1918, § 8837d, Appendix]) deals in section 4 with shipments in interstate commerce. States." But that clause may not be read without its context; and the words immediately following show that the custody and protection is limited to prohibiting their being "destroyed or taken contrary to regulations" which are to fix the closed seasons in the several zones. If, reading the federal act as a whole, there were room for doubt, two established rules of construction would lead us to resolve the doubt in favor of sustain intent to supersede the exercise by a state of its police powers is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the state. Savage v. Jones, 225 U. S. 501, 533, 32 Sup. Ct. 715, 56 L. Ed. 1183; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 623, 18 Sup. Ct. 488, 42 L. Ed. 878. Second. Where a statute is reasonably susceptible of two interpretations, by one of which it would be clearly constitutional and by the other of which its constitutionality would be doubtful, the former construction should be adopted. Harriman v. Interstate Commerce Commission, 211 U. S. 407, 422, 29 Sup. Ct. 115, 53 L. Ed. 253; Knights Templars' Indemnity Co. v. Jarman, 187 U. S. 197, 205, 23 Sup. Ct. 108, 47 L. Ed. 139. The Supreme Court of South Dakota did not err in its judgment unholding the constitutionality of the provision of the state statute under which the plaintiff in error was convicted; and its judgment is Affirmed. (250 U. S. 66) (39 Sup.Ct.) PARKER, Superintendent for Five Civilized ing through their respective guardians-in accordance with the rules and regulations prescribed by the Secretary of the Interior, (Submitted March 19, 1919. Decided May 19, and was approved by that officer. The roy 1919.) No. 254. INDIANS 18 HOMESTEAD ALLOTMENT- Under Act May 27, 1908, § 1, declaring the homestead allotment of an Indian inalienable prior to April 26, 1931, unless restrictions be removed by Secretary of Interior, section 2, authorizing leases for oil and gas of restricted lands with the approval of the Secretary of the Interior, and section 9, declaring that death of an allottee shall remove restrictions on al alties have been and are being regularly paid to an officer of the Indian Bureau under a provision in the lease, and he receives and holds them in trust for the lessors according to their respective interests. The District Court held that each heir was entitled to onethird of the royalties and directed that they be distributed on that basis. Riley v. Kelsey (D. C.) 218 Fed. 391. In the Circuit Court of Appeals that decree was affirmed, one judge dissenting. 243 Fed. 42, 155 C. C. A. 572. It is insisted here, as it was in the courts below, that under section 9 of the Act of May 27, 1908, the child born after March 4, 1906, is entitled to all the royalties accruing during her life, but not beyond April 26, 1931, or, if not to the royalties, to the income or interest therefrom during that period. March 1, 1901, c. 676, 31 Stat. 861, and June The lands were allotted under the Acts of ienation, provided that, if an allottee die leaving issue born since March 4, 1906, deceased's homestead shall remain inalienable, unless restrictions are removed as proved in section 1, for the use and support of such issue, till April 26, 1931, unless such issue sooner die, the three heirs of such an intestate allottee having leased the homestead for oil and gas with approval of the Secretary of the Interior, but without any removal of restrictions on aliena-30, 1902, c. 1323, 32 *Stat. 500, both of which tion being attempted or intended, the royalties take the place of the part of the homestead removed by mining, and that one who was issue born after March 4, 1906, is entitled to the interest or income therefrom until April 26, 1931, unless sooner dying, leaving the principal to go to the heirs in general on termination of her special right. Appeal from the United States Circuit Court of Appeals for the Eighth Circuit. Suit by Tootie Riley, a minor, and another against Gabe E. Parker, as Superintendent for the Five Civilized Tribes, and another. Decree for plaintiffs was affirmed by the Circuit Court of Appeals (243 Fed. 42, 155 C. C. A. 572), and defendants appeal. Reversed. Mr. Assistant Attorney General Kearful, for appellants. Mr. William J. Horton, of McAlester, Okl., for appellees. provided that the homestead of each allottee should be inalienable for 21 years and on his death should remain for the use and support of his children, if any, born after the date which would entitle them to be enrolled and receive allotments of their own. By the Act of April 26, 1906, c. 1876, 34 Stat. 137, that date was changed to March 4, 1906, and as to certain allotments the restrictions on alienations were extended until April 26, sions in the act of May 27, 1908, relied on 1931. With these matters in mind the provihere will be more readily understood. allotments from all restrictions, and then deBy its first section that act relieves certain clares: mixed-blood Indians having half or more than "All homesteads of said allottees enrolled as half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full bloods, and enrolled mixed bloods of three-quarters or more Indian blood, including *Mr. Justice VAN DEVANTER delivered minors of such degrees of blood, shall not be the opinion of the Court. ing terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this act from continuing to remove restrictions as heretofore." subject to alienation, contract to sell, power of This is a bill in equity to settle conflict- April twenty-sixth, nineteen hundred and thirtyattorney, or any other incumbrance prior to ing claims to royalties collected and accruing one, except that the Secretary of the Inteunder an oil and gas lease of lands allotted rior may remove such restrictions, wholly or in to a full-blood Creek Indian as a homestead. part, under such rules and regulations concernThe allottee died intestate in November, 1908, leaving a husband and two minor children as her only heirs. One of the children was born before and the other after March 4, 1906. Under the applicable law of descent each heir took an undivided one-third interest in the lands, subject to the estate specially given to the child born after March 4, 1906, "That leases of restricted lands for oil, gas by section 9 of the Act of May 27, 1908, c. 199, homesteads for more than one year, and leases or other mining purposes, leases of restricted 35 Stat. 312. The lease was given in 1912 of restricted lands for periods of more than five by the husband and children-the latter act-years, may be made, with the approval of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It was approved also by a local court. By its second section it provides: Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise." * the restrictions "in the manner provided by section one" after the death of the allottee would have had on the relative rights of Julia and the other heirs; for no such removal was attempted or intended by the Secretary of the Interior. By its fifth section it declares that "any attempted alienation" of lands while they are restricted and "also any lease of such reThe oil and gas lease was to run for 10 stricted land made in violation of law years and as much longer as oil or gas was shall be absolutely null and void." found in paying quantity. It was given and And its ninth section contains the following: approved under the provision in section 2 "That the death of any allottee of the Five dealing specially with the leasing of restrictCivilized Tribes shall operate to remove all re-ed lands and homesteads. All the heirs joinstrictions upon the alienation of said allottee's ed in the lease and it was designed to be for land: Provided, that no conveyance of any in- the benefit of all. Nothing in it or in the terest of any full-blood Indian heir in such land shall be valid unless approved by the court hay-provision under which it was given suggests that the rights of the heirs, as among themselves, were to be altered or affected. The oil and gas were to be extracted and taken by the lessee, and for this royalties in money were to be paid. These minerals were part of the homestead, and the lease was to operate as a sale of them as and when they were extracted. In that sense the heirs were exchanging a part of the homestead for the money paid as royalties, but no heir was surrendering any right to the others. Thus the rights of all in the royalties were the same as in the homestead. Nothing in the Act of May 27, 1908, makes to the contrary. Under the provision in section nine specially providing for issue born after March 4, 1906, Julia was entitled for her support to the exclusive use of the entire homestead while she lived, but not beyond April 26, 1931, and those who took the fee took it subject to that right. The rights of all in the royalties must, as we think, be measured by that standard. In this view Julia is entitled to the use of the royalties, that is to say, the interest or income which may be obtained by properly investing them, during the same period, leaving the principal, like the homestead, to go to the heirs in general on the termination of her special right. ing jurisdiction of the settlement of the estate of said deceased allottee: Provided further, that if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue herein before provided for die before April twenty-sixth, nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the state of Oklahoma, free from all restrictions." The allottee, as has been said, was an enolled full-blood Creek Indian and died several months after the Act of May 27, 1908. The restrictions on the alienation of her homestead had not been removed, and among her heirs was a child-a daughter named Julia-born after March 4, 1906. In these circumstances a reading of section 9 makes it very plain that the restrictions did not terminate with the allottee's death, but remained in force, and also that the homestead was set apart for the use and support" of Julia during her life, but not beyond April 26, 1931. We need not stop to consider whether, strictly speaking, the right thus specially given to Julia was an estate for life or for years; for it evidently was not the purpose to make any nice distinctions along that line. Nor need we consider what effect a removal of Our conclusion on this point is in accord with the general trend of decisions in the oil and gas mining regions in similar situations. Blakley v. Marshall, 174 Pa. 425, 429, 34 Atl. 564; Wilson v. Youst, 43 W. Va. 826, 28 S. E. 781, 39 L. R. A. 292; Eakin v. Hawkins, 52 W. Va. 124, 43 S. E. 211; Stewart v. Tennant, 52 W. Va. 559, 44 S. E. 223: Barnes v. Keys, 36 Okl. 6, 127 Pac. 261, 45 L. R. A. (N. S.) 178, Ann. Cas. 1915A, 515. Decrees below reversed. |
