OPINIONS RENDERED TO THE ILLINOIS MANUFACTURERS' ASSOCIATION FROM JANUARY 1, 1899, TO JANUARY 1, 1907 BY L,EVY ITS GENERAL COUNSEL CHICAGO, ILLINOIS 1913 PREFACE. This book is published exclusively for the benefit of the Illinois Manufacturers' Association, and at the request of its Board of Direc- tors, who have been asked by many of its members to have the contents preserved in permanent form. The opinions here collected were ren- dered from January 1, 1899, to January 1, 1907. Each opinion is based upon a statement of facts which was first submitted by or for a mem- ber. I have deemed it desirable and useful to give the reasons and the authorities upon which my conclusions rest. The formation of the opinions required much time, and careful consideration and investiga- tion of the law, not only of Illinois, but of other states and counties. The method pursued enables the members to follow the reasoning upon which the conclusions rest, and also furnishes an index of the author- ities to the attorneys who may be concerned with the particular or similar propositions. The range of subjects covered is extensive, and embraces questions which arise in the conduct of nearly every large mercantile or manufacturing business. The opinions have been compiled and indexed by Francis E. Matthews and Hal C. Bangs, who for years have been in my office. They have also, in other matters connected with the work in hand, ren- dered valuable assistance, and I take this occasion to express my ap- preciation of their faithful and efficient aid. LEVY MAYER. CHICAGO, March 20, 1908. OPINIONS RENDERED TO THE ILLINOIS MANUFACTURERS' ASSOCIATION From January 1, 1899, to January 1, 1907 VALIDITY OF THE ILLINOIS FLAG LAW. (Illinois Manufacturers' Association, October 20 1899.) Dear Sir : Replying to your letter of September 23rd, requesting an opinion on the validity of the Illi- nois Flag Law, entitled "An Act to prohibit the use of the National Flag or Emblem for any commercial pur- poses, or as an advertising medium," we would say that such Act does not fall within the usual lines of legislative action. The power of the State Legislature to enact laws is not in terms limited by the State Constitution, but it does not follow that the Legislature can, therefore, ex- ercise absolutely uncontrollable authority in enacting laws without reference to reason, and the pertinency to the public welfare of its enactments. The only do- main of legislation, to which this Act can be referred, is the exercise by the Legislature of what is known as the "Police Power," but we are unable to find that the Act in question can be ascribed to any one of the various heads under which the "Police Power" may fee exercised. It moreover appears to have no reference to the public welfare or convenience, or to the public safety, or to in any manner affect the general welfare or the common protection of the people in their rights, liberties or property. It appears to be purely senti- mental, and to be wholly without the purpose "and in- tent of protecting any material interest whatever. The Supreme Court of this State has said in T., W. & W. R. Co. v. Jacksonville, 67 111., 37 : "It is not within the power of the General As- sembly, under the pretence of exercising the police power of the State, to enact laws not necessary to the preservation of the health and safety of the community that will be oppressive and burden- some upon the citizens. // it should prohibit that which is harmless in itself, or command that to be done which does not tend to promote the health, safety or welfare of society, it would be an unau- thorized exer,cise of power, and it would be the duty of the courts to declare such legislation void." While it is difficult to foresee with absolute certainty what position the final courts of review will take with reference to such legislation, we are strongly of the opinion that it ought not to be sustained when brought to the test of judicial reason. We are advised that a test case is now on the way to the Supreme Court of this State. Where persons or firms had in use, at the time of the passage of this Act, any drawing, printed picture, en- graving or photograph in the likeness of the national flag as an advertisement or upon boxes or wrappings for goods, used in such manner that the drawing or pic- ture used gave a distinctive appearance to the partic- ular goods, so as to be, when taken alone or in connec- tion with other symbols or emblems, in the nature of a trade-mark or distinctive mark identifying the goods from other goods of the same general character, the law cannot, in our opinion, operate to prevent the con- tinued use of such drawing, engraving or picture, for in that respect, if the law were to so operate, it would deprive persons of valuable property interests 'ac- quired and vested before there was any attempted inhi- bition of the use of the flag as an emblem or advertis- ing medium. Private property cannot be divested by an Act of the Legislature. To the extent that the law in question attempts to interfere with vested rights, it is, in our opinion, unconstitutional. NOTE: The law in question was declared unconstitutional in Bull- strat v. People, 185 111., 133. The same conclusion was reached in Peo- ple v. Kruse, 1 111. C. C., 536. The United States Supreme Court in Halter v. State, 205 U. S., 34, has reached a contrary decision in passing upon a similar law in Nebraska. A new flag law was enacted in Illi- nois in 1907. (Laws of 111. 1907, p. 351.) Ed. VALADITY OF A ST. LOUIS ORDINANCE AUTHORIZING THE TAX COMMISSIONER TO COLLECT A LICENSE FEE OF $50.00 FROM NON-RESIDENT SALES-AGENTS. (Norton Bros., Nov. 10, 1899.) You request our opinion as to whether or not two agents for Norton Bros, (members of your association) are compelled to take out licenses under the ordinances of the city of St. Louis, and pay a fee therefor of $50 annually, for each license. From the statement of facts presented in Norton Bros.' letter to you, under date of November 6, 1899, and a copy of which letter is enclosed in your letter to us of November 7, 1899, we understand that Norton Bros, do not keep any merchandise in the City of St. Louis, but merely maintain a room, as headquarters for their salesmen who travel and solicit orders in St. Louis, and the territory adjoining that city, and that all of their orders are filled direct from Chicago. Upon this state of facts, we are of the opinion that neither Norton Bros, nor their agents can be com- pelled to take out such licenses under Sections 1453, 1454 and 1455 of the ordinances set forth in the letter of Norton Bros. Among the authorities upon which we base this opin- ion, are the following : In re Rozelle, 57 Fed. Rep., 155, in which the facts were as follows : The City of Little Rock, in the State of Arkansas, passed the following ordinance: "Section 1. That it shall be unlawful for any person to engage in, exercise or pursue any of the following vocations or business, without having first obtained a license therefor, from the proper city authorities, the amount of which license is hereby fixed as follows, to-wit: (1) Every mer- chandise broker who maintains a storeroom or warehouse or office within the city limits, $50 per annum. ' ' J. S'. Rozelle was a merchandise broker, who, upon exhibition of samples, solicited and obtained orders for goods manufactured outside of the State of Ar- kansas, and which orders were filled direct from the place of manufacture. Having been arrested for fail- ure to take out license under the above ordinance, he petitioned for a writ of habeas corpus and was dis- charged. Williams, the District Judge, before whom the case was heard, concluded his opinion with the fol- lowing language : ' ' From all the authorities on this question, I am clearly of the opinion that the ordinance in ques- tion, so far as the same refers to the petitioner or his occupation, is unconstitutional, and is in conflict with the provisions of the constitution reg- ulating inter-state commerce, and that, therefore, the petitioner should be discharged. ' ' Bobbins v. Shelby .Taxing District, 120 U. S., 489, is a case closely in point. Robbins was engaged in so- liciting in the City of Memphis, Tenn., the sale of goods for a Cincinnati firm, exhibiting samples for the purpose of effecting such sales, his employment be- ing that which is usually denominated that of a drum- mer. This business was declared by a statute of Ten- nessee to be a privilege for which a license tax was re- quired. Bobbins was convicted of a violation of that statute. The statute made no discrimination between those who represented business houses out of the state and those representing like houses within the state. There was, therefore, no element of discrimination in the case, but, nevertheless, the conviction was set aside by the court on the ground that whatever the state might see fit to enact with reference to a license tax upon those who acted as drummers for houses within the state, it could not impose upon those who acted as drummers for business houses outside of the state (and who were, therefore, engaged in interstate commerce) any burden by way of a license tax. The opinion of Mr. Justice Bradley is elaborate and enters fully into the discussion of the question, citing many authorities. It affirms in the strongest language, the exclusive power of Congress over interstate commerce ; that its failure to make express regulations, indicates its will that the subject shall be left free from any restrictions or impositions, and that whatever may be the extent to which the police power of the state can go, it cannot go so far as to uphold any regulations directly affecting interstate commerce. To the same effect are: Brennan v. TitusvUle, 153 U. S., 289. Davis & Rankin Bldg. and Mfg. Co. v. Dix, 64 Fed. Eep., 406. Brown v. Maryland, 12 Wheat., 419. Asher v. Texas, 128 U. S., 129. Lynq v. Michigan, 135 U. S., 161. In re Schecter, 63 Fed. Rep., 695. State of Louisiana et al. v. La Garde et al., 60 Fed. Eep., 186. In re Mitchell et al., 62 Fed. Rep., 576. Applying the decisions above cited, and upon the consideration of many others to the same effect, we ad- vise that none of the provisions of the ordinance sub- mitted to us can be enforced against Norton Bros, or their agents. THE PAYMENT OF TAXES ON PERSONAL PROPERTY. (Illinois Manufacturers' Association, February 1, 1900.) You have stated that many members of the associa- tion have asked what course they should pursue with reference to the payment of taxes on their personal property now being demanded of them by the different town collectors. This reply has reference to personal property only. As to the real estate, other questions of law apply, and there is no necessity for action with ref- erence to real estate at the present time, because taxes on real estate need not be paid until the first of May, after which date the penalty of one per cent a month accrues. 1. It is impossible in a general opinion to furnish advice which will apply to each individual case. The circumstances in each case are probably as different 6 as you have members in your association; therefore, each case must be determined with reference to the par- ticular facts in that case. 2. If the appraisement made by the assessors was satisfactory to the tax-payer, and, if the raise made by the Board of Review was made after notice and due hearing, and such raise does not go beyond the cash value of the property assessed, the tax-payer has no ground or complaint based upon the valuation of his property. 3. If the appraisement made by the assessors was raised by the Board of Review without notice to and opportunity for a hearing of the party assessed, the validity of such raise or increase is problematical, and justifies an appeal to the courts by way of injunction for relief, even though such raise (it being made with- out notice and hearing) does not put a valuation on the property in excess of its actual cash value. 4. In the Stuckart case the Supreme Court re- cently held Section 49 of the New Revenue Act uncon- stitutional. That section limited the total aggregate of taxes in this county to five per cent of the val- uation, exclusive of taxes for state purposes and the school buildings. Several proceedings by mandamus were instituted in the Circuit Court here against the County Clerk, involving his right to reduce the total taxes to such five per cent aggregate. Pending that hearing, the Supreme Court's decision in the Stuckart case was announced, in which the right of the County Clerk to reduce under Section 49 the aggregate taxes to five per cent, as aforesaid, was denied. In the Stuck- art case, a petition for rehearing is pending, and in the mandamus cases, the Circuit Court followed the de- cision of the Supreme Court in the Stuckart case. Those mandamus cases are now pending on appeal in the Supreme Court, and involve the legality of Sec- tion 49 of the Revenue Act. The petition for a rehear- ing, as well as the argument in the mandamus cases, will come before the Supreme Court in the course of a few days, and I think a decision will be very promptly rendered, probably before the middle of this month. It is difficult to anticipate what the Supreme Court will do, but, in my opinion, the chances are that the petition for a rehearing will be denied. The holding of Sec- tion 49 unconstitutional, in my opinion, does not fur- nish a defense against the payment of the personal property taxes where the personal property has been appraised at its fair value, and 20 per cent thereof has been the basis of the assessment. The fact that the lim- itation as to the amount of the tax that could be as- sessed is wiped out by the holding of Section 49 uncon- stitutional does not, in my opinion, affect what was at that time of the appraisement the fair cash value of the personal property appraised. With reference to real estate, an entirely different question arises, which need not now be determined. The value of real estate depends largely upon the amount of its earning capacity, and its earning capac- ity is necessarily affected by the charges incurred in the way of taxes and the preservation of property. 5. In those cases where the personal property has been fairly appraised at its cash value, and the ap- praisement has not been interfered with by the Board of Review, or where the appraisement fixed by the Board of Review does not exceed the fair cash value of the personal property, and the action of the Board of Review was had after due notice and opportunity for a hearing, I have been advising my personal clients, particularly where the taxes owing were not of an unusually large amount, to make payment under pro- test rather than submit to a levying of a warrant by the Collector. Such levy, however, cannot be made by the Collector until after he has made final demand, and, after such levy has been made, the Collector cannot sell until he has given notice at least five days previous to the day of sale by advertisement, as provided by Sec- tion 157 of Chapter 120, Revised Statutes. Even after levy, in cases where the tax-payer desires to seek re- lief, he will have time to prevent the sale by making prompt application to the courts. 4. As I said at the outset, it is impossible in this way to furnish an opinion which will be applicable to 8 the peculiar facts in any particular case, and, there- fore, each case must be determined by the facts appli- cable to it. THE POWER OF THE STATE FOOD COMMISSIONER OF ILLINOIS TO COMPEL MANUFACTURERS OF BAKING POWDER TO LABEL THEIR GOODS. (Illinois Manufacturers' Association, April 20, 1910.) Your Secretary has submitted to us the following rule or regulation adopted by the Illinois State Food Commissioner, Mr. Alfred H. Jones: "All baking powders sold in the State must be labeled in a conspicuous way and place with a name signifying the class or variety to which it belongs, based on the name of the acid ingredient ; thus, for example : ' This is an alum baking pow- der;' 'An alum phosphate baking powder;' 'A phosphate baking powder'; 'A cream of tartar baking powder.' Potassium and sulphate is re- garded as unwholesome, if not injurious, and its use in any article of food is prohibited." and has asked for our opinion as to the power of the Commissioner to compel manufacturers of Baking Powder containing alum, to label the same "This is an alum baking powder." We are also asked to assume, and we so do, that the two words "Baking Powder" are and constitute the ' ' true and appropriate name ' ' of the article in ques- tion, and that the article is not an "extract," and this opinion is based upon such assumption. We have carefully examined the various laws en- acted from time to time by our Legislature, and par- ticularly, "An Act to prevent and punish the adulteration of articles of food, drink and medicine, and the sale thereof when ' adulterated ; ' approved June 1, 1881, (I Starr & C. 111. Stat., 2d Ed., p. 1232 ;) also, "An Act to protect the public from imposition in relation to canned or 'preserved food;' ap- proved June 27, 1885, (p. 1230 idem), and also, "An Act to provide for the appointment of a State Food Commissioner and to define his powers and duties, and fix his compensation, and to pro- hibit and prevent adulteration, fraud and decep- tion in the manufacture and sale of articles of food, and to repeal certain acts or parts of acts therein named; approved April 24, 1899." Laws 1899. (p. 263.) We are unable to find any statutory provision relat- ing in express terms to the manufacture, sale or label- ing of "Baking Powder," or any provision which, in our opinion, can be so construed as to require Baking Powders to be labeled so as to show their acid ingredi- ents. The Legislature has not vested the Food Commis- sioner with power to adopt or enforce any such rule as the one in question, and we are therefore of the opinion that said rule has not the force of a law, and that its violation does not constitute a criminal offense. To hold otherwise would result in giving legislative pow- ers to an executive officer. It is also to be noted that legislative provisions, somewhat similar to the rule in question, have been held to be in violation of the Com- merce clause of the Federal Constitution. Inasmuch as the tendency of the courts is to favor the validity and enforcement of laws intended to pre- vent the adulteration of food and impositions on the public, and particularly as the precise question submit- ted to us has not, so far as we are aware, received any judicial construction, we suggest that if the Food Com- missioner intends to enforce the rule in question, it would be advisable, if possible, that arrangements be made with him for the prosecution by him of but one suit, it to be made a "test case." RULING OF THE STATE FOOD COMMISSIONER AS TO THE SALE OF GOODS MANUFACTURED IN THIS STATE TO DEALERS IN OTHER STATES. The following questions were submitted to the State Food Commissioner: "Will manufacturers be permitted to sell goods which do not comply with the Illinois Pure Food Law to dealers in other states! Can manufacturers sell such goods to other resi- dents of Illinois for sale to dealers in other states?" To the foregoing questions the following reply was received : May 18, 1900. Mr. J. M. Glenn, Secretary, Illinois Manufacturers' Association, 528 Marquette Building, Chicago, 111. Dear Sir: In reply to your favor of yesterday, I beg to say that at present the Commissioner has de- cided not to interfere with the manufacturers' goods for export, even if they are not labeled according to our law and rulings when they are exported to other states. This of course refers only to the labeling or to any standard of strength and not to the use of any deleterious substances, which are prohibited in any case. The question whether the manufacturer can sell such goods to other residents in this state is one that has not been discussed with the Commissioner, but as we should allow a jobber to carry in stock such goods made in other states, it is clear that the home manufacturers may also be permitted to sell such goods to the job- ber. This liberal ruling is of course only temporary, but in case it is changed due notice will be given to the manufacturers and jobbers. Yours truly, J. H. MONRAD, Assistant Food Commissioner. 11 OPINION IN REFERENCE TO THE LAW REQUIRING CORPORA- TIONS TO FILE AN ANNUAL REPORT. (Illinois Manufacturers' Association, October 22, 1900.) Since rendering your opinion of August 31st last, respecting the constitutionality of ' ' An Act requiring corporations to make annual report to the Secretary of State and providing for the cancellation of Articles of Incorporation for failure to do so ; Approved April 21, 1899, ' ' we have given the matter further consideration, and now confirm the conclusion therein expressed, namely, that the portion of said Act which gives the Secretary of State power to forfeit the charter of a corporation failing to comply with its provisions, is unconstitu- tional. A corporation cannot be deprived of its char- ter unless by the judgment of a competent tribunal, and in a proceeding instituted for that purpose. The Sec- retary of State is an executive officer only, and has no judicial powers. To deprive a corporation of its charter is the exercise of a judicial act, and, therefore, in our opinion, clearly beyond the power of the Secre- tary of State. We, however, consider the remaining portions of the Act to be constitutional. The Act should, there- fore, be read with the provisions for the penalty in question, eliminated ; in other words, the requirements of the Act stand the same as if no penalty had been expressly provided for a violation thereof. This presents the question whether a corporation can be punished for a failure to comply with the terms of the Act. In our opinion a corporation failing to comply with its terms renders itself liable to quo warranto pro- ceedings. If such proceedings be instituted, and a corporation be found guilty, the judgment of the court may be either one of ouster, that is, depriving the corporation 12 of its charter, or it may be a fine in any sum not ex- ceeding $25,000 for each offense. In the absence of any judicial interpretation, we are of the opinion that the Act should be complied with, and we, therefore, so advise. NOTE: In People ex rel. v. Rose, 207 111., 352, the law in question was held constitutional. It was also held that the cancellation entered by the secretary of state did not of itself work a forfeiture of the char- ter, but such cancellation was merely prima facie evidence of non-user,, which may be availed of by the People in a proceeding to forfeit the charter. Ed. THE RIGHT OF A CORPORATION TO PURCHASE OR OWN STOCK IN ANOTHER CORPORATION. (J. Manz Engraving Co., February 9, 1901.) The question is : "If a corporation can purchase or own stock in another corporation, in other words * * * if there is any way in which a company incorporated under the laws of this State can acquire another company not engaged in the same line of business as the first." In this State a corporation has no power either di- rectly or indirectly to subscribe for or purchase shares of stock in another corporation, whether such corpora- tion is engaged in the same line of business or other- wise. In certain cases a corporation may take the stock of another corporation in payment of a debt or perhaps as security for a debt, but it has no power to purchase or hold such stock. We, therefore, answer the question in the negative. THE FOREIGN CORPORATION LAW OF ILLINOIS. (C. C. Wallin & Sons, February 15, 1901.) Dear Sir: Yours of the 14th enclosing copy of a letter from C. C. Wallin & Sons in reference to foreign corporation act of this State is at hand. I do not know just what particular query Wallin & Sons desired answered. If their question governs the entire act of 1899 governing foreign corporations doing business in this State, I beg to reply, that in my opinion, a for- 13 eign corporation doing business in this State without compliance with the act in question will legally sub- ject itself to the penalties therein provided. There are two penalties specified, one, that a foreign corporation doing business in this State not complying with the act shall be subject to a fine of not less than one thousand dollars ; the other is, that such a corporation so in de- fault cannot maintain any suit, or action, legal or equitable, in any of the courts of this State upon any demand, whether arising out of contract or tort. I know of no case where it has been attempted to col- lect the fine referred to. I regard that part of the statute as of minor importance. The penalty which prohibits the maintenance of a suit, however, is of sub- stantial import and has been sustained by the Supreme Court of the State, and also by the United States Cir- cuit Court (Judge Seaman) sitting in Wisconsin, who passed upon a similar statute in force in that State. Both by Judge Seaman and in other Federal Circuits similar statutes have been enforced against litigants in the United States Courts. I advise, therefore, that foreign corporations doing business in this State should comply with the act in question. In the construction of the Illinois Statutes and similar statutes in other States litigation has arisen over what is transacting business in the State. I do not know whether Wallin & Sons come within the provision of the statute as to "transacting business in this State" as no facts in this connection are given to me upon which to pass. WHETHER CORPORATIONS ARE ORGANIZED FOR 'PURELY MANUFACTURING PURPOSES. ' ' (Latrobe Steel & Coupler Company, April 25, 1901.) Secretary Glenn of the Illinois Manufacturers' As- sociation has turned over to me, as its counsel, your letter to him of the 18th inst. for a reply. The question whether you are a manufacturing corporation exclu- sively, and therefor not subject to have your capital 14 stock and franchise valued by the State Board of Equalization depends entirely upon your charter. The Supreme Court has said: ''In order to settle this question resort must be had to its charter. ' ' Evanston Electric Illuminating Co. v. Kochersperger, 175 111., 26, and Distilling & Cattle Feeding Co. v. People, 161 111., 101. Whether you sell merely the product manufac- tured by your Company, or sell products manufactured by your Company and other concerns, the question will go back to the initial point, and that is, what does the charter of your Company specify as its corporate pur- pose. Probably few corporations organized under the laws of this State have had their charters drawn with an eye to the question under consideration. I believe that it will be found upon examination of the most of the charters that their language is not sufficient to bring the case within the proviso of the Statute which exempts strictly manufacturing companies from as- sessment of its capital stock and franchise by the State Board of Equalization. If your Company sells merely the product that it manufactures, and its charter is so drawn as to make the Company's purpose exclu- sively that of manufacturing within the meaning of the law, your Company will be exempt from assess- ment of its capital stock and franchise by the State Board. It is largely in view of the fact that few of the charters protect existing corporations in the di- rection indicated, that the proposed amendment to the Revenue Act was drawn by me at the instance of the Manufacturers' Association. The necessity for such a change had become all the more important in view of the two recent decisions above pointed out. WHETHER INCIDENTAL SALES IN FOREIGN STATE BY TRAVEL- . . ING SALESMEN TO FILL "HURRY ORDERS 77 CONSTITUTE DOING BUSINESS. (Allen B. Wrisley Co., June 21, 1901.) Dear Sir: Your favor of the 20th inst., enclosing copy of a letter from the Allen B. Wrisley Co., in which they enquire whether or not the business trans- 15 acted by it in other states is inter-state commerce, is at hand. The Wrisley Co. says it has its main office and stock of goods in Chicago, Illinois, owns no real estate and has no office in any other state, and carries no stock of goods there except a small stock in the hands of its traveling salesmen in other states who, out of such stock, but not in the ordinary course of business in isolated instances execute "hurry orders"; such stock at no time exceeding in value a few dol- lars. I assume that the orders received by the sales- men, except the so-called "hurry orders," are taken subject to the approval of the home office, where the orders are filled. Such a course of business, in my opinion, constitutes "inter-state commerce" within the meaning of the constitutional provision, and such a corporation need not comply with the statutes of the different states governing foreign corporations ' ' doing- business" therein. See: Commonwealth v. Farnum, 114 Mass., 267. In re Houston, 47 Fed., 539 ; 14 L. R. A., 719. Cooper Mfg. Co. v. Ferguson, 113 U. S., 727. Havens v. Diamond, 93 111. App., 557. AS TO WHETHER THE LAW REQUIRING CORPORATIONS TO FILE ANNUAL REPORT WITH THE SECRETARY OF STATE APPLIES TO FOREIGN CORPORATIONS. (Audit Company of New York, July 9, 1901.) Answering yours of the 2nd inst., in which you refer to an opinion of my firm of October 22nd, 1900, con- cerning ' ' the validity of the law requiring corporations to file an annual report with the Secretary of State," I reply to your inquiry as follows: The law referred to in that opinion was that ap- proved April 21, 1899, and in force July 1, 1899. The law governs only corporations organized under the laws of this state. The law was repealed at the last session of the Legislature, by an act approved May 10, 1901, and in force July 1, 1901. This latter act is a 16 substitute for the former act, and, like the former act, applies only to corporations organized under the laws of this State. As your company is a corporation organized under the laws of another State, it is not af- fected by the law in question. NOTE: Foreign corporations are now required to make the report under the provisions of section 3 of the act of May 18, 1905. (Sess. Laws of 1905, pp. 121-2. Ed. WHAT CONSTITUTES DOING BUSINESS WITHIN THE MEAN- ING OF THE FOREIGN CORPORATION LAW OF COLORADO. (Challenge Machinery Co., July 11, 1901.) The Challenge Machinery Company asks whether or not it is now " doing business" within the meaning of the foreign corporation law of Colorado. It says that some time ago it complied with the Colorado stat- ute by filing a copy of its charter in that state, and that at that time it was doing business by placing its goods on consignment with a selling company there, but that this method of doing business is no longer pur- sued. The Machinery Company does not state what its present method is of doing business in Colorado. If the Machinery Company has no local agent or house, but sells its goods in Colorado through the medium of traveling salesmen, whose orders are taken subject to the approval of the home office, and its goods are shipped direct to Colorado to the parties from whom orders are received, it is not " doing business" in that State. If the Machinery Company will state precisely in what way it conducts business, if at all, in Colorado, I can be more categorical in my reply. NOTE: See later opinions July 20, 1901, Challenge Machinery Co., October 8, 1901, and January 15, 1902, American Soda Fountain Co., March 24, 1903, J. W. Sefton Mfg. Co., January 5, 1905, Rubber Paint Co. Ed. 17 THE FOREIGN CORPORATION LAWS OF ILLINOIS, INDIANA, IOWA, MICHIGAN, NEBRASKA, SOUTH DAKOTA AND WIS- CONSIN. (fielding Bros. & Co., July 17, 1901.) "We are a corporation organized under the laws of the State of Connecticut. We have an office and carry a stock of goods in Chicago. From this office we do business in Illinois, Michigan, In- diana, Iowa, Nebraska, South Dakota and Wis- consin. No goods are delivered by our traveling salesmen, all goods being shipped direct from this office, and all orders are taken subject to the ap- proval of this office. What we would like to know is, if we are obliged to comply with the laws of the above named States regarding foreign corpo- rations. Some of these States require us to have a representative in the State who can accept serv- ice, etc., for us, and if we do not have such agent they debar us from collecting any account in the State.'/ My opinion is as follows: Illinois. 1 In Illinois a foreign corporation formed for pecuniary profit, before it is authorized or permit- ted to transact business in Illinois, or to continue busi- ness therein, must designate some person as its agent in this State on whom service of process may be had ; it must also maintain a public office in this State for the transaction of its business and keep at that office books to. enable it to comply with the laws of this State. It is expressly made subject to all liabilities, restric- tions and duties which are or may be imposed upon domestic corporations of like character and has no other or greater powers. It must file in the office of the Secretary of State a copy of its charter duly certified. It must make to the Secretary of State a duly sworn statement showing the proportion of capital stock of the corporation represented in Illinois by its property 1 NOTE: The act of May 18, 1905 (Sess. Laws 1905, p. 121) now governs the subject of foreign corporations. Ed. 18 located and business transacted therein. The state- ment must further show the name and address of the agent of the foreign corporation in this State ; it must pay to this State to the Secretary of State upon the proportion of its capital stock represented by its prop- erty and business in Illinois, fees equal to those re- quired of similar corporations formed under the laws of this State. Every foreign corporation amenable to the provisions of the Act referred to neglecting to comply therewith is expressly made subject to a fine of not less than $1,000 and in addition thereto a for- eign corporation so in default can maintain no "suit or action either legal or equitable in any of the courts of this State (Illinois) upon any demand whether arising out of contract or tort." Indiana. The laws of Indiana require that agents of foreign corporations before entering upon their duties of agency in Indiana shall deposit in the clerk's office of the county where the agents propose doing business the power of attorney or other authority un- der and by virtue of which they act as agents. Such agents must procure from their corporations and file with the Clerk of the Circuit Court of the county where they propose doing business an authenticated order from the Board of Directors of the corporation authorizing citizens and residents of Indiana having a claim or demand against such corporations arising out of any transaction in Indiana with such agents to sue in respect to the same in any court of Indiana of competent jurisdiction, and further authorizing serv- ice of process on such agents to be valid on such cor- porations. Foreign corporations "shall not enforce in any court of this State any contracts made by their agents or by persons as- suming to act as their agents before a compliance by such agents or persons acting as such with the provisions ' ' of the law. The statute of Indiana defines "agent" thus: "Any person who shall directly or indirectly re- ceive or transmit money or other valuable thing* 19 to or for the use of such corporation, or who shall in any manner make or cause to be made any con- tract or transact any business for or on account of any such foreign corporation, shall be deemed an agent of such corporation, to be subjected to the provisions of this Act relating to agents of for- eign corporations. The foregoing sections shall not apply to per- sons acting as agents for foreign corporations for a special or temporary purpose or for purposes not within the ordinary business of such corpora- tions nor shall it apply to attorneys-at-law as such. ' ' The law further provides that a person acting as agent of a foreign corporation neglecting to comply with the law shall be subjected to a fine of not less than Fifty ($50) Dollars. The law further provides that if a foreign corpora- tion doing business in Indiana or acquiring a right, in- terest or lien upon real estate therein shall transfer from an Indiana State Court to a Federal Court save by the regular course of appeal after trial in the State courts an action commenced by or against such cor- poration in any of the State courts by or against any citizen or resident of Indiana, or if such foreign corpo- ration shall commence in any Federal Court suit on a contract made in Indiana or liability accrued therein against a citizen or resident of Indiana, that such for- eign corporation shall thereby forfeit all right and au- thority to do or transact business in Indiana or hold real property therein or liens thereon, and all contracts between such foreign corporations so in default and citizens or residents of Indiana are rendered by the law void as in favor of such corporation, but enforce- able by such citizen at his election. It is expressly provided that the provisions of the Act are "made conditions upon which such corporation may be authorized to do business in this State or hold titles to or liens on real estate therein." The statutes also provide that every such corporation "shall have and maintain a public office or place 20 in this State for the transaction of its business where proper books shall be kept to enable such corporation to comply with the constitution and statutory provisions governing such corporations ; and it shall designate an agent or representative in this State on whom service of process may be had; and such corporation shall be subject to all the liabilities, restrictions and duties which are or may be imposed upon corporations of like char- acter organized under the general laws of this State and shall have no other or greater powers." No corporation is permitted to engage in any busi- ness other than expressly authorized in its charter or hold any real estate except such as may be neces- sary or proper for carying on its legitimate busi- ness. The statute provides also that every such corpora- tion shall file in the office of the Secretary of State a certified copy of its charter, and the principal or agent in Indiana of the said corporation shall make and for- ward to the Secretary of State "a statement duly sworn to of the proportion of the capital stock of said corporation which is rep- resented by its property located, and business transacted in the State of Indiana, and such cor- poration shall be required to pay into the office of the Secretary of State of this State upon the proportion of its capital stock represented by its property and business in Indiana incorporating taxes and fees equal to those required of similar corporations formed within and under the laws of this State." Upon a compliance with the above provisions such corporations are authorized to do business in Indiana. Every corporation failing to comply with the condi- tions of the law shall be subject to a fine of not less than One Thousand ($1,000) Dollars and cannot maintain any suit or action in any of the courts of the State upon any demand whether arising out of contract or tort. 21 Iowa. The statute of that State provides that "any corporation for pecuniary profit other, than carrying on mercantile or manufacturing busi- ness organized under the laws of another State or of any territory of the United States, or of any foreign country which has transacted business in the State of Iowa since the first day of September, 1886, or desires thereafter to transact business in this State," shall file with the Secretary of State a certified copy of its charter and a resolution of its Board of Direc- tors or Stockholders authorizing such filing, and also authorizing service of process to be made "upon any of its officers or agents in this State engaged in transacting its business." The foreign corporation is required to pay to the Secretary of State the same fee required for the or- ganization of corporations in Iowa. Corporations transacting business in Iowa prior to September 1st, 1886, are expressly made exempt from the payment of the required fees. Upon the receipt of a permit from the Secretary of State "for the transaction of the business of such cor- poration * * * said corporation shall be permitted and authorized to conduct and carry on its busi- ness in this State. Nothing in that section shall be construed to prevent any foreign corporation from buying, selling and otherwise dealing in notes, bonds, mortgages or other securities." Until the foreign corporation has, in good faith, com- plied with the law and taken out a permit it shall not "possess the right to exercise the power of emi- nent domain or exercise any of the rights or privi- leges conferred upon corporations." A foreign corporation carrying on its business in violation of the provisions of the law shall forfeit for every day it is in default One Hundred ($100) Dol- lars and the agent, officer or employe "who shall knowingly act or transact such busi- ness for such corporation when it has no valid permit as provided herein" 22 is subject to a fine not exceeding One Hundred ($100) Dollars or to imprisonment in the county jail not ex- ceeding thirty days, or both. Foreign corporations, their officers and agents doing business in Iowa, are expressly made 11 subject -to all the liabilities, restrictions and duties that are or may be imposed on corporations of like character organized under the general laws of this State, and shall have no other or greater powers. ' ' Michigan. The statutes of Michigan provide that corporations organized under the laws of any other State for any purpose or object for which a corpora- tion may be formed in Michigan "upon filing in the office of the Secretary of State a certified copy of their Articles of Incorporation or memoranda of association and evidence and notice of the appointment of an agent in this State for service of process, may for such pur- pose or object carry on their business in this State and shall enjoy all the rights and privileges, and shall be subject to all the restrictions, re- quirements and liabilities of corporations of like character incorporated under the Michigan stat- utes." The statutes further provide for the payment of a franchise fee of one-half mill upon each dollar of the authorized capital stock of such corporation, and a like fee upon each increase of such capital stock. This franchise fee applies both to domestic as well as for- eign corporations. Nebraska. The statutes of Nebraska provide that any corporation organized under the laws of any other State which shall file with the Secretary of State of Nebraska a true copy of its charter or articles of association and a certified copy of a resolution adopted by its Board of Directors accepting the provisions of this Act shall become a corporation of Nebraska. The statute further provides that foreign corporations shall not acquire, take or hold any lands or real estate in Nebraska provided this shall not prevent foreign 23 corporations having liens upon real estate or any in- terest therein ''from holding or taking a valid title to the real estate subject to such lien nor shall it prevent any such corporation from enforcing any lien or judg- ment for any debt or liability now existing or which may hereafter be created, nor from be- coming a purchaser at any sale made for the pur- pose of collecting or enforcing the collection of such debt or judgment. ' ' It will be noted that the resolution of the Board of Directors of the foreign corporation is to accept "the provisions of this Act." Upon such acceptance in the language of the statute the foreign corporation be- comes "a body corporate of this State." It is needless to set out here the various numerous "provisions" which govern "a body corporate of this State." South Dakota. The statutes of South Dakota pro- vide that no corporation organized under the laws of any other State "shall transact any business within this State or acquire, hold and dispose of property, real, per- sonal or mixed, within this State, or sue or main- tain any action at law or otherwise in any of the courts of this State until such corporation shall have filed in the office of the Secretary of State a duly authenticated copy of its charter or ar- ticles of incorporation, or shall have complied with the provisions of this Act. Provided that the provisions of this Act shall not apply to cor- porations and associations created for religious or charitable purposes only." The statute further provides that such corporations shall appoint an agent, who shall reside at some ac- cessible point in the State, duly authorized to accept service of process, and upon whom service may be had in an action in which said corporation is a party, and such service shall be taken and held as personal service upon such corporation. A duly authenticated copy of the appointment of said agent must be filed 24 and recorded in the office of the Secretary of Stata and Begistrar of Deeds in the county where such agent resides, and a certified copy thereof by the Sec- retary of State or Eegistrar of Deeds shall be con- clusive evidence of the appointment and authority of such agents. The statute further provides that no action shall be maintained in any of the courts of South Dakota or any contract made or entered into in that State by such corporation unless such corpora- tion shall have complied with the provisions of the Act. The statute further provides that it shall be unlaw- ful for any person to act within this State as agent or officer of any foreign corporation unless such cor- poration shall have appointed an agent. Every per- son so acting as such agent or officer of any such cor- poration shall be fined not less than ten ($10) dollars or more than one hundred ($100) dollars and im- prisoned in the county jail not less than ten nor more than thirty days, or both. Wisconsin. The statutes of Wisconsin provide that every foreign corporation "actually engaged in manufacturing within the State shall upon the written request of any resi- dent creditor thereof within sixty days from the time of making such request and annually there- after upon a like request file in the office of the Secretary of State of this State a statement show- ing the capital stock subscribed, the amount thereof actually paid in, the full name of each of the stockholders and the amount of stock held by each, and shall, at the time of so filing the first of said statements, file in such office a certified copy of its articles of organization or associa- tion." The statute further provides that if said corpora- tion shall fail to file said report within said time it shall forfeit all right to further carry on or transact any business within the State, and any person carry- ing on any business in violation of the Act shall be liable to a penalty, for every offense, of not less than 25 twenty-five ($25) dollars nor more than one hundred ($100) dollars. The statute further provides that service may be had upon any foreign corporation by serving the sum- mons upon any officer within the State, or any agent having charge of or conducting any business therefor in the State, or any trustee or assignee of such cor- poration, "but such service can be made upon a foreign corporation only, either when it has property in the State or the cause of action arose therein, or the cause of action exists in favor of a resident of the State." The statute further provides that a foreign corpo- ration may prosecute or defend any action or pro- ceeding in the courts of that State in the same manner as corporations created under the laws of this State. The statute further provides that no foreign cor- poration "shall transact business or acquire, hold or dis- pose of property in this State" until such corporation shall file in the office of the Secretary of State "a duly authenticated copy of its charter, articles of association and incorporation and all amend- ments thereto which may be made while it shall continue to do business therein." Such corporation shall have been deemed to consti- tute the Secretary of State its true and lawful attor- ney upon whom summons, notice, pleadings and process may be served in respect to any liability aris- ing out of any business, contract or transaction in this State, which service upon said Secretary of State or his assistant shall be deemed valid service upon such corporation. The statute provides that the Secretary of State shall forward a copy of all papers served on or to the principal place of business of the corporation. Fail- ure to comply with the provisions of the Act subjects the corporation, its officers and agents to a penalty of five hundred ($500) dollars. The statute provides 26 that all contracts made by or on behalf of any such corporation which has not complied with the provis- ions of the Act shall be wholly void on its behalf, and on behalf of its assigns, but shall be enforceable against it or them. For filing such articles of asso- ciation the corporation shall pay to the Secretary of State the sum of twenty-five ($25) dollars and for amendments thereto ten ($10) dollars. Upon the assumption that the statement of facts herein contained is complete and accurately describes your method of "doing business" in the foregoing States, I am of the opinion that you need not comply with the laws of any of those States other than the laws of Illinois, and that you can legally enforce the collection of any account owing you by residents or citizens of any of those States other than Illinois, without compliance with the respective laws of such respective States. You are doing business in Illinois within the meaning of the statutes of that State, and the interpretation given by State and Federal tribunals to laws of that kind. Therefore, to enforce collection of any account owing to you by a citizen or resident of the State of Illinois, as well as to avoid enforcement of the penalty prescribed by the statute, it is necessary that you should, if you have not al- ready done so, comply with the laws of Illinois gov- erning foreign corporations. AS TO WHAT CONSTITUTES "DOING BUSINESS" IN A FOREIGN STATE, PARTICULARLY MICHIGAN. (Parlin & Orendorff Co., July 18, 1901.) * ' We would like very much to have the question as to what constitutes doing business in a foreign State. In asking this question it would be well to refer to the Michigan decisions touching on this subject," etc. I do not know to what particular Michigan decision reference is made, nor do I know whether the question as to what constitutes "doing business" is asked with reference to the Michigan statutes. In an opinion of 27 this date to Belding Bros. & Co. I quote at length the provisions of the Michigan statute, as well as the pro- visions of certain other State statutes, giving the right of foreign corporations to do business in those par- ticular States. I refer to those opinions for an analy- sis of those States. I am familiar with the following Michigan decisions on the subject: Coit v. Sutton, 60 N. W. Rep., 690; S. C. 102 Mich., 324. M'oline Plow Co. v. Wilkinson, 62 N. W. Rep., 119; S. C. 105 Mich., 157. People v. Hawkins, 64 N. W. Rep., 736; S. C. 106 Mich., 479. Wilcox Cordage & Supply Co. v. Mosher, 72 N. W. Rep., 117 ; S. C. 114 Mich., 4. Rough v. Breitung, 75 N. W. Rep., 147 ; S. C. 117 Mich., 49. I presume that the Michigan decision to which Parlin & Orendorff refer is included in those to which I have just made reference. In Coit m v. Sutton, 60 N. W. Rep., 690, the validity of the Michigan statute was not questioned. There, the plaintiff, an Illinois corporation, recovered a judgment in the lower court. The facts showed that the plaintiff "was engaged in the business of shipping from Illinois goods manufactured in that State to its customers in Michigan on orders given it by mail or taken by its agents in Michigan. The law in question imposes a tax upon corporations for the privilege of doing business in Michigan. It is a tax upon the occupation of the corporation with a provision that all its contracts shall be void until the tax is paid, which, if enforced, would embarrass plaintiff with its commerce with inhabitants of Michigan. It must, therefore, be held that the Act in question does not apply to foreign corporations whose business within this State constitutes merely the sale through itin- erant agents and delivering commodities manu- factured, etc., in this State. ' ' 28 It will thus be seen that in that case the court held that the facts above quoted from the opinion did not constitute * ' doing business ' ' in Michigan. In Moline Plow Co. v. Wilkinson, supra, the Moline Plow Co., of Illinois, as a foreign corporation paid to the State Treasurer of Michigan the fee required of foreign corporations as a franchise fee. Thereafter the Moline Plow Co. brought mandamus against the State Treasurer of Michigan to compel him to refund the money so paid as a franchise fee. The fee so paid amounted to four hundred dollars, and was paid under protest, the Plow Co. claiming that it was doing busi- ness in Michigan 11 through itinerant agents whose duty it is to solicit orders and sell goods manufactured in Illi- nois. ' ' The Plow Co. claimed that the Michigan statute governing foreign corporations was unconstitutional as being an interference with interstate commerce. The court said the Plow Co. "not only sells its products through itinerant agents, but it comes within the State asking to have its articles of association filed here, and that it may be put on the same footing with our own home corporations. The Act gives the for- eign corporations the same privileges as domestic ones, but provides that it must comply with the Act by paying the franchise fee which a domestic corporation must pay. The relator has had its articles of association filed here, has paid the franchise fee provided by the Act, and is not en- titled to have its money repaid." Thus, in the Plow Co. case, the court did not in any way pass upon the question under consideration. It merely decided that the Plow Co., having complied with the State statutes, could not thereafter get its money back. In other words, its charter having been filed and the fee having been paid, the Plow Co. there- by was put "on the same footing with our own home corporations." The case, therefore, furnishes no precedent whatever for the present discussion. 29 People v. Hawkins, 106 Mich., 479, presented this phase : The Standard Oil Co., of Ohio, had for several years done business in Michigan, "having a general office in Detroit through which its business for a portion of the State was done. This business consisted principally in selling pe- troleum to customers in this State. The oil was, as a rule, shipped to Detroit in tank and other cars and there stored until sold, being then re- shipped. * * * All money received for sales of oil in that portion of the State that was with- in the jurisdiction of the Detroit office was sent to that office, and came to the hands of the de- fendant who was bookkeeper and assistant cash- ier. He was convicted of embezzling twenty-six hundred dollars of the company's money and the case comes here (before the Supreme Court) upon exceptions before sentence." The Standard Oil Company had not complied with the foreign corporation statute. The court held : "that this statute (that governing foreign corpo- rations) was not intended to prohibit foreign cor- porations from doing business within the State until they should comply with its terms." Also, that " if it should be held that the Act under consider- ation was prohibited and that the company could not make or enforce contracts it would not follow that this defendant could not be guilty of em- bezzlement. ' ' People v. Hawkins was decided September 27, 1895. In Rough v. Breiting, decided May 17, 1898, and which refers to People v. Hawkins, the Supreme Court of Michigan upheld the statute which provides that "all contracts made in this State after the first day of January, 1894, by any corporation which has not first complied with the provisions of this Act, shall be wholly void. ' ' In People v. Hawkins the question as to what "do- ing business" means was not before and was not con- sidered by the court. 30 In Wilcox Cordage & Supply Co. v. Mosher, 114 Mich., 64, it was held, following Coit v. Sutton, 102 Mich., 324, that where a foreign corporation sells its goods in Michigan "by itinerant salesmen," such cor- poration is not doing business within the State. In Rough v. Breitung, supra, the Davis Mining Company, an Illinois corporation, owned mining prop- erty and was doing a mining business in Michigan. It had not complied with the laws of Michigan governing foreign corporations. One of those laws provides that : "All contracts made in this State, after the first day of January, 1894, by any corporation which has not first complied with the provisions of this Act, shall be wholly void." A contract for the sale of the mine was made. Upon a refusal of the purchaser to carry out the contract, suit was brought thereon in Michigan. The court said: "We are forced to the conclusion from this rec- ord, that this was a corporate contract, and void under the law above cited. While the corporation might be estopped to plead such a contract in its defense, it cannot maintain an action upon it without annulling the law." And the court cites and relies upon Seamens v. Temple Co., 105 Mich., 400; Society v. Lester, 105 Mich., 716 ; People v. Hawkins, 106 Mich., 482. The question of what "doing business" meant was not considered by, nor before the court. It seems to have been conceded that the contract sued on had been made by a foreign corporation doing business in Michi- gan. In Seamens v. Temple Co. the receiver of a Wiscon- sin Mutual Fire Insurance Company that had never complied with the statutes of Michigan, brought suit there. The court held that under the Michigan stat- ute governing insurance companies, the latter, whether domestic or foreign, could not effect insurance on property in Michigan, unless the insurance company had complied with the Michigan laws. The insurance company in question had not complied with those laws, 31 and it was therefore held that it could not maintain an action in Michigan to recover an assessment made against the members of the insurance company. The case did not turn upon the question as to what "doing business" meant, but because "the whole scheme is a flagrant attempt to evade the provisions of the laws of the several States which are intended to restrict the insurance busi- ness." Mutual Benefit Society v. Lester, 105 Mich., 716, was like the case of Seamens v. Temple Co., and throws no light upon the subject. It merely held that the Mutual Benefit Society, which was a foreign institution, had not complied with the laws of Michigan, and therefore was forbidden to do business there. The court said : "The collection of this money arose out of the acts of the plaintiff which were forbidden, namely the doing business, issuing certificates to citizens, and residents of Michigan, and the collection of assessments by its agents within the State. ' ' What the law is depends very much upon the peculiar facts in each case. The Parlin & Orendorff Co. seem to request a general definition comprehend- ing all cases of "doing business." It is probably an impossible task to undertake to define, in advance, the general term "doing business," because it is im- possible to anticipate the particular facts that may arise in the endless number of methods in which for- eign corporations are selling their wares in the dif- ferent States. I have, however, gone at length into the matter with reference to the State of Michigan, be- cause of the impression I have formed that the query in the present case may have reference to that State. THE FOREIGN CORPORATION LAW OF INDIANA. (American Strawboard Co., July 18, 1901.) I acknowledge receipt of yours of the 10th inst., containing therein inclosed a letter to you of the 8th inst., from the American Strawboard Company, asking for my opinion as to whether or not the Strawboard 32 Company must comply with an Act passed by the Gen- eral Assembly of the State of Indiana, March 15, 1901, relating to foreign corporations doing business in that State. The Indiana Act in question is printed on pages 621 and 622 of the Session Laws of Indiana of 1901. I have compared that Act with the Act of Illinois, approved April 22, 1899; in force July 1, 1899, governing foreign corporations doing business in this State. It is very clear that the Indiana stat- ute is practically an exact copy of the Illinois statute. I have heretofore rendered an opinion to the Associa- tion that the Illinois statute in question is constitu- tional. (See my opinion dated February 15, 1901, covering the inquiry of C. C. Wallin & Sons.) I am of the same opinion as to the Indiana statute now under consideration. The statute provides that "every corporation for pecuniary profit formed in any other State, Territory or country, before it shall be authorized or permitted to transact busi- ness in this State (Indiana), or to continue busi- ness therein if already established" shall maintain a public office in the State; shall keep books, there to enable the corporation to comply with the laws of Indiana governing corporations ; shall designate an agent in Indiana upon whom service of process may be had ; that such foreign corporations shall be subject to all the liabilities, restrictions and duties imposed upon domestic corporations and shall have no greater powers. That the foreign corporation shall engage in no business other than that authorized by its charter or by the laws of Indiana, and shall hold no real estate, except what may be necessary to carry on its legitimate business. That such foreign corporation shall file with the Secretary of State a certified copy of its charter ; that the principal or agent in Indiana of the foreign corporation shall make to the Secretary of State a duly sworn statement "of the proportion of the capital stock of said corporation which is represented by its property located and business transacted in the State of Indiana, and such corporation shall be required 33 to pay into the office of the Secretary of State in this State, upon the proportion of its capital stock represented by its property and business in In- diana, incorporating taxes and fees equal to those required of similar corporations formed within the laws of this State," that every foreign corporation failing to comply with the conditions of the law shall be subject to a fine of not less than one thousand ($1,000) dollars, and in ad- dition no such foreign corporation so in default can "maintain any suit or action, either legal or equitable, in any of the courts of this State, upon any demand, whether arising out of contract or tort." The law exempts from its provisions, railroad and telegraph companies already doing business, also in- surance companies. Immediately after September 1, 1901, the Secretary of State is required to inform the prosecuting attorney of the different counties of the foreign corporations so in default. The American Straw Board Company says that it is an Illinois corporation, and has "strictly manufac- turing plants in the State of Indiana. ' ' I construe this statement to mean that the Straw Board Company owns property in Indiana, is operating manufacturing plants in its own name and making deliveries from these plants. In my opinion, the American Straw Board Company is "doing business" in Indiana, and is subject to the statute of that State of March 15, 1901, hereinabove quoted. The Straw Board Com- pany, therefore, in order to avoid the penalties pro- vided by the Act in question, should comply with its provisions. AS TO WHAT CONSTITUTES "DOING BUSINESS" WITHIN THE MEANING OF THE FOREIGN CORPORATION LAW OF THE STATE OF COLORADO. (Challenge Machinery Co., July 20, 1901.) "The goods we sell in Colorado, at present, are sold there by one of our representatives travel- 34 ing in that State, or by mail orders to our home office in Chicago, mailed by the customers placing the order. We carry no stock of any kind in the State of Colorado, and all orders are shipped from our factory at Chicago. ' ' Associating the facts stated in the letter of the Machinery Co. of the 15th inst. with the facts outlined in my opinion to that Company of the llth inst., I am clearly of the conclusion that the Machinery Com- pany is not " doing business" within the meaning of the statute of Colorado governing foreign corpora- tions. The facts indicate that the Machinery Com- pany is engaged in strictly interstate commerce, so far as Colorado is concerned. The Machinery Company may, in Colorado, advertise its goods, take orders there, make contracts of sale respecting same, and ship them from Illinois to its customers in Colorado. It may also employ itinerant salesmen who travel through Colorado from county to county, or from town to town, to secure orders. The term "doing busi- ness" cannot be construed to mean taking orders or making sales by sample, or by agents coming into Colorado from another State for that purpose. To so construe the Act would make it l i offend against the constitution of the United States, and would be impos- ing unlawful restrictions on interstate commerce." See Cooper Mfg. Co. v. Ferguson, 113 U. S., 727 (a case that went up from Colorado) ; Coit v. Sutton, 102 Mich., 327; McNaughton v. McGirl, 20 Mont., 124; Toledo, etc., Co. v. Glenn Mfg. Co., 55 Ohio St., 221 ; Bateman v. Western, etc., Milling Co., 1 Tex. Civil Ap- peals, 92; S. C. 20 S. W. Rep., 932; Ccmal Co. v. Mahlenbrock, 63 N. J. Law, 286; Mershon & Co. v. Pottsville Lumber Co., 187 Pa. St., 12. THE FOREIGN CORPORATION LAW OF PENNSYLVANIA. (Sanford Mfg. Co., July 20, 1901.) "We are just in receipt of the enclosed papers from the Secretary of Pennsylvania, referring to the Act to prohibit foreign corporations doing 35 business in the State. This company is a close company. We have a branch office in New York, and a salesman traveling from New York who makes Eastern Pennsylvania, and another sales- man traveling from Chicago, who makes Western Pennsylvania. Our goods are all sold and shipped exclusively to the trade. Is it necessary for us to comply with the provisions of this Act!" The Act prohibiting foreign corporations from doing business in Pennsylvania, approved April 22, 1874, provides thus: "SECTION 1. Be it enacted, etc., That from and after the passage of this Act, no foreign corpora- tion shall do any business in this Commonwealth, until said corporation shall have established an office or offices, and appointed an agent or agents for the transaction of its business therein. "SEC. 2. It shall not be lawful for such cor- poration to do any business in this Commonwealth, until it shall have filed in the office of the Secretary of the Commonwealth a statement, under the seal of said corporation, and signed by the President or Secretary thereof, showing the title and object of said corporation, the location of its office or offices, and the name or names of its authorized agent or agents therein ; and the certificate of the Secretary of the Commonwealth, under the seal of the Commonwealth, of the filing of such state- ment, shall be preserved for public inspection by each of the said agents in each and every of said offices. "SEC. 3. Any person or persons, agent, officer or employe of any such foreign corporation, who shall transact any business within this Common- wealth for any such foreign corporation, without the provisions of this Act being complied with, shall be guilty of a misdemeanor, and upon con- viction thereof shall be punished by imprisonment not exceeding thirty days, and by fine not ex- ceeding one thousand dollars, or either, at the discretion of the court trying the same." 36 Upon assumption that all the facts showing the methods of doing business by it in Pennsylvania are contained in the letter of the Sanford Company to you of the 18th inst., I am of the opinion that that Company does not come within the meaning of the Pennsylvania statute above quoted. In BlaJceslee Mfg. Co. v. Hilton, 5 Pa. Super. Ct., 184, the court held a foreign corporation may ' ' employ agents living in Pennsylvania, to go from county to county, and from town to town, and from person to person, to secure orders. Or the agent may never go outside of his own county, city, or town, thus being, in one sense, a local agent, and yet be doing business which is not and cannot be reached under our Act of 1874. * * The words 'doing any business,' as used in the Act, should not be construed to mean taking orders, or making sales by sample, by agents com- ing into our State from another, for that purpose. To hold otherwise would make the Act offend against the Constitution of the United States, as imposing unlawful restrictions on interstate com- merce. ' ' Similar doctrine is held in Kilgore v. Smith, 122 Pa. 48, and the most recent Pennsylvania case affirming the doctrine of the two cases above cited, and of other de- cisions, is that of Mershon v. Pottsville Lumber Co., 187 Pa. St., 12, decided July 21, 1898. VALIDITY OF THE LAW IMPOSING A TAX ON COMPANIES AND COKPOKATIONS CONVEYING FREIGHT AND PASSENGERS IN CARS IN THE STATE OF INDIANA. (Illinois Zinc Co., July 24, 1901.) Yours, enclosing letter of the 18th inst. from the Illinois Zinc Co., is at hand. The Zinc Company asks for our opinion in relation to a law passed by the legislature of Indiana on March 4, 1901, imposing a tax on companies and corporations conveying freight 37 or passengers in cars in the State of Indiana. I have examined the law in question.. It provides that "Every joint stock association, company, co- partnership or association, incorporated or acting under the laws of this or any other State, and con- veying to, from, through, in or across this State or any part thereof, passengers or travelers, or freight, in palace cars, drawing room cars, sleep- ing cars, dining cars or chair cars, refrigerator cars, fast freight cars for the transportation of horses, cattle, hogs, sheep, or any other kind of freight whatever, under any contract, express or implied, with any railroad company or the mana- gers, lessees, agents or receivers thereof, shall be deemed to be a sleeping car company, for the pur- poses of this Act ; and every such sleeping car com- pany doing business in this State shall annually, between the first day of April and the first day of June, make out and deliver to the Auditor of State a statement, verified by the oath of the officer or agent of such company, making such statement with reference to the first day of April next preceding." The statute provides that such statement shall show : (1) The capital stock of the corporation. (2) The number of shares, and the par value there- of. (3) The principal place of business of the corpora- tion. (4) The market value of the shares, or if the shares have no market value, then the actual value thereof. (5) The real estate, fixtures, etc., owned by the corporation subject to local taxation within the State; and the location and assessed value thereof in each county where the same is assessed for local taxation. (6) The real estate and improvements owned by the corporation, situated outside the State of Indiana, and not used directly in the conduct of the business, with a description of such property, where located, the purpose for which it is used, and the sum at which 38 it is assessed for taxation in the locality where situ- ated. (7) All mortgages, and where recorded, and the names and residences of the holders of the same, upon the whole or any of its property, together with the franchises, and amounts thereof. (8) The total length of the lines of all the railroad companies over which said cars are run outside the State of Indiana; the length of the lines of the rail- road companies over which said cars are now run within each of the counties and townships of the State of Indiana. The statute provides that the State Board of Tax Commissioners shall ascertain the true cash value of the entire property owned by the corporation from the statements, and for that purpose shall take the aggregate value of all shares of the capital stock, in case such shares have a market value, and in case they have none then the actual value thereof. If the prop- erty of the corporation is encumbered by a mortgage, the amount thereof is to be added to the value of the shares, and the aggregate amount is to be deemed the true cash value of the property of the corporation. The statute provides that the said Board of Tax Commissioners, for the purpose of ascertaining the cash value of the corporate property within the State of Indiana, shall ascertain from such statements, or otherwise, the assessed value for taxation in the locali- ties where the same is situated, of the several pieces of real estate situate without the State of Indiana, and not specifically used in the general business of such corporation, which said assessed value shall be de- ducted from the gross value of the property herein above ascertained. The statute provides that the said Board shall next ascertain and assess the true cash value of the cor- poration in case of sleeping cars, etc., by taking the proportion of the whole aggregate value as above as- certained, after deducing the assessed value of the real estate without the State, which the length of lines within the State over which said cars are run bears 39 to the length of the whole lines over which said cars are run. From the entire value of the property within the State, so ascertained, there shall be deducted by the said Board the assessed value for taxation of all the real estate, structures, machinery, and appliances within the State, subject to local taxation in the coun- ties and townships in the State of Indiana, and the residue of such value so ascertained, after deducting therefrom the assessed value of such local properties, shall be assessed by said Board. The Act under consideration is amendatory and supplementary to an Act approved March 6, 1891, as amended March 3, 1893. The Act of 1893 amended the Act of 1891, and provided that all corporations within the purview of the Act should make a statement simi- lar to that required by the Act of 1901 above set forth. The only change made in the law by the amendment of 1901 is to enlarge the definition of "sleeping cars" so as to include ' ' oil cars, refrigerator cars, fast freight car or cars for the transportation of horses, cat- tle, sheep, hogs, or any other kind of freight what- ever. ' ' The method of taxation and the ascertainment of the value of the property under each of the afore- mentioned Acts is substantially the same. The Act of 1901 came before the United States Supreme Court in the case of P. C. C. & St. L. Ry. Co. v. Backus, 154 U. S., 421, and was by that court declared to be a valid and constitutional law. I am, therefore, of the opinion that the Act under consideration is consti- tutional and binding upon those coming within the meaning of its provisions. The question then arises as to whether or not the Illinois Zinc Company comes within the meaning of the statute. In its letter the Zinc Company states that it is the owner of a line of tank cars. It does not state, however, from and to where these cars run, nor what the method of doing business in Indiana is. I presume, however, that the Zinc Company is an Illinois corpo- ration, or, at least, that it is not a corporation of In- diana, and that it ships its products from its factory in Peru to points in Indiana and elsewhere. If this 40 is so, then the Zinc Co. is engaged in interstate com- merce under the commerce clause of the Constitution. It is beyond the power of a State to levy a tax which is in substance and effect a direct tax on interstate commerce, but this does not deprive the States of the power to levy a property tax upon property employed in interstate commerce having a situs with their juris- diction. If a corporation owning rolling stock does business in States other than the State of its corpora- tion, and uses such rolling stock in the States where it does such business, the situs of such property will be in the State where it is so used, and such State may levy a tax on the average amount of the rolling stock thus used, even though the corporation is engaged in interstate commerce. If, however, the Zinc Co. ships its own goods from Illinois to Indiana in its own cars, and the cars, when emptied, are returned to the principal place of busi- ness of the corporation in Illinois, and are not used in any other way, and the corporation does no business of any kind in the State of Indiana, except as afore- said, I am inclined to the opinion that the situs of such cars is in Illinois, and that the Zinc Co., probably, does not come within the purview of the Act under consideration. The drift of the courts has, however, been strongly in favor of upholding the taxing power of the States, and some of the decisions have gone far towards making a precedent against the Zinc Co. ; but, when those decisions come to be critically exam- ined, I believe there is good ground to support the Zinc Co.'s position. Much will depend upon whether the Zinc Co. "does business" in the State of Indiana. And upon that particular point I have indulged in the above presumptions. See the following cases : State v. Stephens, 146 Mo., 662; and cases cited. Fargo v. Michigan, 121 U. S., 230. Pickard v. Pullman Co., 171 TJ. S., 34. People v. Wemple, 138 N. Y., 1. Pullman Co. v. Pennsylvania, 141 U. S., 18. 41 Hall v. American Refrig. Co., 51 Pac., 421. Adams Express Co. v. Ohio, 165 U. S., 194. NOTE: See, also, the opinion of October 30, 1903, to the Kingman Plow Co. Ed. THE LICENSE TAX LAWS OF TENNESSEE, VIRGINIA, GEORGIA AND NORTH CAROLINA. (Illinois Sewing Machine Co., October 7, 1901.) The Sewing Machine Company asks my opinion as to the effect of certain laws passed by the legislature of a number of States, among them being the State of Tennessee, Virginia, Georgia and North Carolina, imposing a license tax on every company, firm or cor- poration engaged in the business of selling sewing machines through agents or otherwise. The Sewing Machine Company states that it is strictly a mail order house, has no traveling salesmen, and that its business is with dealers only; no sales being made to the cus- tomer direct; its sales being made from this city by mail. Under this state of facts I am of the opinion that the Sewing Machine Company is engaged in inter- state commerce, and is not required to comply with the laws in question. Such laws, insofar as they at- tempt to levy a license tax on corporations engaged in interstate commerce, are unconstitutional and void. NOTE: See, also, opinion of October 26, 1903, to Montgomery Ward & Co. and opinion of September 29, 1905, to Illinois Sewing Machine Co. Ed. THE STATUTE OF THE STATE OF NEW YORK GOVERNING FOREIGN CORPORATIONS. (Hines Lumber Co., Oct. 7, 1901.) The Lumber Company asks my opinion as to whether or not it is required to comply with the law of the State of New York, governing foreign corpora- tions. It says: 42 "Most of our business is done by correspon- dence, part of it through the personal solicitation of a traveling salesman who travels through the State of New York and takes orders, sending the orders to us here. Mail orders are sent to the house direct. The lumber is shipped to the parties ordering it. We have no branch house nor resi- dent agent." I assume that orders taken by the traveling sales- man are sent to the Chicago office for approval. If this assumption is correct, then I am of the opinion that the Lumber Company is engaged in interstate commerce and cannot be required to comply with the law under consideration. The Lumber Company states it is familiar with the various opinions rendered the Association as to what constitutes "doing business" in a state, but un- derstands that they were limited to a particular case. The opinions rendered apply with equal force to all corporations in similar circumstances, no matter what states they may do business in. THE VALIDITY OF THE LAW AMENDING THE CHILD LABOR LAW OF ILLINOIS. (W. C. Ritchie & Co., October 8, 1901.) Your favor of August 29th, 1901, inclosing letter of August 26th, 1901, from W. C. Ritchie & Co. in which they enquire as to the validity of an act of the legislature of Illinois passed May 10, 1901, amending the so-called child labor law of 1897, is received, and has been taken up in due course. The act of May 10, 1901, is entitled thus : "An act to amend sections four (4) and nine (9) of an act entitled, 'An act to regulate the employment of children in the State of Illinois, and to provide for the enforcement thereof,' ap- proved June 9, 1897, in force July 1, 1897." It thus purports to amend sections 4 and 9 of the act of 1897. Section 4 of the act of 1897 reads thus : 43 "No person under the age of sixteen years shall be employed or suffered to work for wages at any gainful occupation more than sixty hours in any one week, nor more than ten hours in any one day." The act of 1901 reads thus : "No person under the age of sixteen years shall be employed or suffered to work for wages at any gainful occupation more than sixty hours in any one week, nor more than ten hours in any one day." "All establishments subject to factory inspec- tion, where girls and women are employed, shall provide seats for the use of the girls and women, and they shall be permitted the use of such seats when not necessarily engaged in their active duties." Section nine of the act of 1897 is amended by law of 1901, by changing the penalty. In my opinion the amendment to section four of the act of 1897 is in violation of section 13, Art. 4, of the Illinois Constitution of 1870, which provides that no act shall embrace more than one subject and that shall be expressed in the title. The title of the act in ques- tion being ' ' An act to regulate the employment of children . . , " etc., does not refer in any way to the provision of section four added by the act of 1901. The Constitution (Sec. 13, Art. 4) provides, how- ever, that if any subject shall be embraced in an Act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. The original of section four therefore which prohibits the employment of a child under 16 years of age for "more than sixty hours in any one week or more than ten hours in any one day," is not affected by the invalidity of the amendment. In my opinion, section four of the act of 1897 unamended 44 as above is within the police power of the state and is valid and constitutional. NOTE: The employment of children is now regulated by the act of May 15, 1903. (Sess. Laws 1903, p. 187.) Ed. THE FOREIGN CORPORATION LAW OF COLORADO. (American Soda Fountain Co., October 8, 1901.) I have your favor of August 9th, inclosing copy of letter from the representatives of the American Soda Fountain Co., together with a copy of an opinion from Messrs. S. A. & C. H. Osborn, the local attorneys of the Soda Fountain Co. at Denver, Colorado, in refer- ence to the Colorado Foreign Corporation law. In an opinion rendered July 20th to the Association, in answer to the inquiry of the Challenge Machinery Co., I stated that upon the facts set forth in that opin- ion the Machinery Co. was not doing business in Colo- rado and therefore was not subject to the foreign cor- poration law. The business of the Machinery Co. was transacted by mail or through the medium of traveling salesmen, and all orders were shipped from Chicago to the persons ordering them. Messrs. Osborn say in their letter : "We think Mr. Mayer wrote the letter, either without full knowledge of the construction placed upon our incorporation statutes, or without a full knowledge of the recently enacted statute." The position taken in the opinion is sustained by the following authorities among others : Coit v. Sutton, 60 N. W., 690 (Mich.). Wilcox Cordage & Supply Co. v. Moslier, 114 Mich., 64. Blakeslee v. Hilton, 5 Pa. Sup. Ct., 184. Davis v. Dix, 64 Fed., 406. Havens v. Diamond, 93 111. App., 537. Murphy Varnish Co. v. Connell, 32 N. Y. Sup., 492. 45 See also the note to French v. State (Tex.), 52 Lawyers' Rep. Ann., 160. I have again examined the corporation law of Colo- rado of 1901. It is provided by section 4 of that law, that every foreign corporation failing to comply with its provisions as to the payment of fees, etc., shall not be allowed to prosecute or defend any suit in Colorado. In my opinion, this provision is applicable only to foreign corporations " doing business" in Colorado, and does not apply to every corporation which may have occasion to maintain a suit in Colorado, as the Messrs. Osborn apparently assume in their letter. Sec- tion 4 of the law of 1901 provides that the fees required by the law shall be due and payable at the time the articles of association or charter of the corporation are filed with the Secretary of State, but the law of 1883, which provides for the filing of such articles of associa- tion or charter, is expressly confined to foreign cor- porations "doing business" in the state. The law of 1901, in my opinion, does not undertake to prevent a foreign corporation engaged in inter- state commerce, and not ' ' doing business ' ' in Colorado, from suing or defending in Colorado. It would be unconstitutional if it did so. I presume from the letter of the Soda Fountain Co. to its Chicago manager that the business of the com- pany in Colorado is transacted through the medium of traveling salesmen who take orders in Colorado, which orders are sent to the home office for approval and there filled. I am, therefore, of the opinion that the Soda Foun- tain Co. is engaged in inter-state commerce and can enforce its collection in Colorado without a compliance with the provisions of the Colorado law. NOTE: See note to opinion of July 11, 1901, in answer to query of Challenge Machinery Co. Ed. 46 IN REFERENCE TO LEGISLATION TO REDUCE THE NUMBER OF PERSONAL INJURY SUITS. (Hey wood Bros. & Wakefield Co., January 3, 1902.) Answering yours oFthe 30th ult., and the two letters to you, I reply that I consider the suggestions of Hey- wood Bros. & Wakefield Co. as desirable and to some extent feasible. Legislation could be suggested beneficial to manu- facturing companies doing business here and at the same time not at all hostile or prejudicial to the rights of any of the community. I, however, know of no constitutional legislation that could be enacted that would cut off the rights of injured persons to sue for damages, whether the claimant's suit be worthy or unworthy. The question necessarily, under our form of government, can be determined only in the courts. To the extent that legislation would attempt to cut off the right to sue, such legislation would, in my opinion, be unconstitutional. Legislation limiting the amount that can be recovered in case of death to $5,000 now exists in this state. Legislation reduc- ing that amount would be legal; whether advisable from an economic or business standpoint I am not called upon to consider. At the present time the Statute of Limitations gov- erning suits for personal injuries is two years. I think that ought to be reduced to one year and possibly even six months. Where one has been injured there is no reason why his claim should not be sued on, if suit is to be instituted at all, within six months after the cause of action occurs. By waiting nearly two years before instituting suit, as it is now permissible, the defen- dant runs great risk of losing the means of his defense, witnesses disappear, etc. A law which would compel one who is injured, or the representatives of one who has been killed, to file notice of claim, say within ninety days, with the one who is sought to be holden, would also be an advan- tageous amendment to the law. 47 Other suggestions occur to me and doubtless would readily occur to members of the Association. These could be thrashed out and put in presentable form for introduction at the next session of the legislature. That body does not convene until a year from now. There is, therefore, ample time to digest the matter. Whether it should be agitated at an open meeting of the Association is questionable. Any publicity given to a matter of this kind would be likely to lead to or- ganized opposition at the hands of those who derive benefit from the right of untrammeled and unrestricted litigation for personal injuries. CONSTITUTIONALITY OF LAW IMPOSING LICENSE TAX UPON ENTIRE CAPITAL STOCK OF FOREIGN CORPORATION. (Aermotor Co., January 3, 1902.) Your favor enclosing notice from the Secretary of State of California to the Aermotor Company is at hand. You ask my opinion as to the constitutionality of that provision of the California statute, approved March 8th, 1901, a copy of which you enclose, which provides that every foreign corporation now or here- after doing business in the State of California, shall pay a license tax upon the .whole of their capital stock, the same as that imposed upon domestic corporations. The State of California has the right to prohibit foreign corporations not engaged in interstate com- merce from doing business therein. It has the right to fix the terms upon which it will permit foreign cor- porations to enter the state and transact local busi- ness there. These terms may be altogether unreason- able, or even arbitrary, provided they are uniform and apply alike to all foreign corporations of the same class. I have examined the law in question, and, in my opinion, it is constitutional. 48 KATES FOK TELEPHONE SERVICE OUTSIDE LIMITS OF ORDI- NANCE OF 1889. (Heroy & Marrenner, January 3, 1902.) Messrs. Heroy & Marrenner have their place of busi- ness at Chicago Heights. This is beyond the terri- torial lines fixed by the ordinance of January 4, 1889, within which lines the rate for telephone service for business purposes is fixed at $125 per year, and for residence purposes at $100 per year. The litigation in which it is sought, on behalf of the Manufacturers' Association and its members, to compel the Telephone Company to reduce its charges within the territorial lines from $175 to $125 for busi- ness telephones, is still pending under advisement by Judge Tuley, before whom the case was argued some time since. 1 Outside of the territorial lines above referred to, the ordinance authorizes the Telephone Company to charge the amount above specified and $25 per mile, or fraction thereof, per annum extra, except where the location of the instrument is distant from pole routes, in which case the Company has the right to make a proportionate increase in charge. Chicago Heights, not being in the City of Chicago, the rates fixed by the ordinance do not apply to that place. Messrs. H. & M. say that the Telephone Company wishes them to change the grounded line service, with Blake transmitter, for a copper metallic circuit, for which the Telephone Company would charge a higher rate. If this latter rate is unreasonable, the courts will, upon proper application, restrict the Chicago Telephone Company to what is a reasonable rate. If the Telephone Company is abolishing the use of the grounded line service, with Blake transmitter, in my opinion the courts will not prevent it from doing so. It is the policy of the law that public utility com- panies, like a telephone company, shall improve their NOTE: See 1 111. C. C., 119. Ed. 49 service by the adoption of all reasonable appliances and apparatus. The substitution, therefore, by the Telephone Company, of the metallic circuit for that of the grounded line is clearly within the policy of the law. Having, however, established a rate of charges for the grounded line service, an attempt by the Tele- phone Company to charge a higher rate for the me- tallic circuit when the lessee is willing to continue the use of the grounded service, would furnish a case where there would be reasonable ground to apply to the courts for redress, on the theory that the rate fixed by the Telephone Company itself will be construed to be at least as high as the Telephone Company itself deems proper. The further attempt by the Company to increase that rate for the metallic circuit would tend to furnish a basis for contention that the increased rate is unreasonable, even though the Company con- tended that the metallic circuit was installed at an in- creased expense. The question is not at all free from doubt because of the fact that there is no ordinance or law fixing the rates that the Telephone Company may charge for services between Chicago and Chicago Heights, unless there should be some village ordinance in Chicago Heights which, if it be a fact, has not been communi- cated to me. On the whole the case furnishes sufficient facts, in my opinion, to justify a proceeding on behalf of Messrs. Heroy & Merrenner to seek relief in an ap- propriate proceeding. I do not mean to say that such a proceeding will be successful, but I think that there is a sufficient chance to justify the undertaking. I have not been advised as to what the proposed increase in rate by the Telephone Company amounts to. That would cut some figure in arriving at the final deter- mination as to whether a suit should be instituted. 50 BIGHT OF BECEIVER OF INSOLVENT FIRE INSURANCE COM- PANY TO COLLECT PREMIUM WHERE COMPANY WAS NOT LICENSED TO DO BUSINESS IN ILLINOIS. (E. D. St. George Mfg. Co., January 3, 1902.) I acknowledge receipt of your favor enclosing copy of letter from E. D. St. George Mfg. Co. My opinion is asked whether a mutual fire insurance company, in- corporated under the laws of Michigan, which has done business in this state, and has become incolvent, can collect an assessment in the courts of Illinois, from a policy-holder who is a citizen of Illinois, when such insurance company has not complied with the statutes of Illinois governing foreign insurance companies, and has not received a certificate of authority from the state officials, permitting it to do business in this state. The various statutory provisions governing foreign insurance companies doing business in this state are contained in chapter 23, sections 23 et seq., 2 Starr & Curtis Eevised Statutes of Illinois, pp. 2217-2220. I assume that the insurance company, at the time of the issuance of the policy, was doing business in Illi- nois. In my opinion, a foreign insurance company, doing business in this state, cannot collect assessments in the courts of this state, or sue or collect premiums on its policies, unless it has first complied with the law, and is authorized to do business in this state. To this effect see: Buell v. The Breeze Mill & Grain Co., 65 111. App., 271. Cincinnati Ins. Co. v. Rosenthal, 65 111., 85. If the insurance company has complied with the law it (or its receiver) can sue and collect the assessment in this state. This opinion does not apply to voluntary unincorpo- rated associations, or individual underwriters. 51 THE ADVANTAGE OF INCORPORATING UNDER THE LAWS OF NEW JERSEY. (111. Mfrs. Assn., January 3, 1902.) To your communication repeating the question : "What advantage would it be to an Illinois company to incorporate under the laws of New Jersey!" I reply as follows, saying by way of introduction, however, that to cover the question fully and in detail would require almost the writing of a pamphlet. In a general sense, however, the following would be the more important of the advantages: 1. A corporation organized under the laws of a State other than Illinois in other words a foreign corporation could at all times when the amount in controversy exceeded $2,000, litigate in the Federal Courts of this State. In view of the fact that juries in the State Courts are not orally instructed, and are less subject to the control and direction of the judges, and are more frequently prejudiced against corpora- tion than are juries in the Federal Courts, the latter forum is a preferable one in which to litigate. Again, in that forum broader equity jurisdiction is asserted and enforced with reference to the prevention of strikes, etc. So, also, in the United States Courts the defense authorized by the Illinois statute that the plain- tiff is a trust, etc., is not permissible. There are several other substantial reasons, which I do not deem it neces- sary to enumerate, in favor of the United States Courts. 2. As the statutes in this State exist at present a foreign corporation, whether organized for purely manufacturing purposes or other purposes, is not li- able to assessment upon its capital stock and fran- chises in this State. True, if organized under the laws of New Jersey the corporation is required to make annual return to the State Board of Assessors of New Jersey on or before the first Tuesday in May of each year, and is requested to pay thereon an an- 52 nual license fee or franchise tax of one-tenth of one per cent, on all amounts of capital stock issued and outstanding up to and including $3,000,000; on all amounts of capital stock issued and outstanding in ex- cess of $3,000,000 and not exceeding $5,000,000, one- twentieth of one per cent., and the further sum of $50 per annum per $1,000,000, or any part thereof, on all amounts of capital stock issued and outstanding in excess of $5,000,000. 3. The laws of New Jersey permit corporations to exercise far more extensive and altogether more liberal charter powers than do the laws of Illinois. 4. In New Jersey the plan of organization is largely left to the incorporators, who may exercise pretty much an untrammeled choice in specifying the powers, objects and purposes with which the corporation shall be invested. The incorporators also have the right to insert in the charter provisions creating, defining, limiting and regulating the powers of the corporation, directors and stockholders, which cannot be done in this State. 5. The New Jersey laws authorize the issuance of various kinds and classes of stocks, common, preferred, first preferred, second preferred, etc., etc. The char- ter can distribute the voting power among the various classes of stock, giving to one class greater powers than to another class. This is not authorized in Illi- nois. 6. In New Jersey the question of the value of prop- erty for which stock is issued is conclusive, and there is no liability upon the holders of stock issued for property purchased, unless there has been absolute fraud. 7. A New Jersey corporation is more readily dis- solved by voluntary action than is an Illinois corpo- ration. In the former state a two-thirds vote can dis- solve whether the corporation has liabilities or not, and assets or not. In Illinois a corporation cannot voluntarily dissolve itself by a two-thirds vote unless all its liabilities have been paid and all of its assets have been distributed. 53 8. Under the New Jersey law the Board of Direc- tors can have all of its meetings outside of the State. In Illinois such meetings held outside of the State are void, unless the meeting was authorized or the act rati- fied by a two-thirds vote of the directors. 9. As I have indicated, it would require almost the writing of a treatise to point out the difference be- tween the Illinois corporation laws and those of New Jersey. I have confined these remarks to New Jersey because the question was directed on that line. There are other states like New York, Maine, Delaware, West Virginia, etc., nearly as, and, in some instances, even more liberal in their corporation laws than are those of New Jersey. 10. The New Jersey statutes make requirements which may possibly be regarded as burdensome. I call attention to only a few of them. One of the di- rectors must be a resident of New Jersey, the Company must have its principal office in that State, in that office must be kept the transfer books and stock books, and those books are by law required to be open at all times during business hours to the examination of every stockholder. An agent must be designated for service of process in New Jersey, and the Company must pay the annual franchise tax to which I refer. There are other provisions needless to be pointed out here. MEANING OP THE WORDS AMOUNT OF CAPITAL ACTUALLY EMPLOYED" AS USED IN THE FOREIGN CORPORATION LAW OF PENNSYLVANIA. (Oliver Typewriter Co., January 15, 1902.) I acknowledge receipt of a copy of a communication from the Oliver Typewriter Co. to you, in which it asks the meaning of the sentence: "The amount of their capital actually employed wholly within the State of Pennsylvania," which appears in my opinion of October 7, 1901, in relation to the law of Pennsyl- vania of 1901, taxing foreign corporations. 54 The term ' ' capital ' ' as defined by the authorities means "the estate of the corporation, the property and assets of the corporation, that is, the sums paid in by the subscribers, together with the addition of all gains or profits realized, or with such diminutions as have resulted from losses incurred." In my opinion, the intention of the legislature was to impose a tax upon the amount of property (real or personal) of the foreign corporation located or em- ployed wholly within the State of Pennsylvania, that is, upon the property which the foreign corporation owns or possesses in the State of Pennsylvania for the purposes of carrying on its business. The amount of the tax imposed is one-third of one percentum upon the amount of such property. BIGHT OF STATE TO PREVENT FOREIGN CORPORATION EN- GAGED SOLELY IN INTERSTATE COMMERCE FROM MAIN- TAINING SUIT AS PROVIDED IN THE FOREIGN CORPORA- TION LAW OF COLORADO. (American Soda Fountain Co., January 15, 1902.) I acknowledge receipt of certain additional corre- spondence in the matter of the query of the American Soda Fountain Co. as to the foreign corporation law of Colorado. I am still of the opinion that the law does not pre- vent the Soda Fountain Co. from maintaining a suit in Colorado to collect any accounts due it. As stated in my letter of October 8th, 1901, and in numerous other opinions rendered to your association, the pro- vision of the Colorado statute as to the maintenance of suits, is applicable only to corporations "doing business" in the state. If it is so construed as to pro- hibit corporations engaged solely in inter-state com- merce, from instituting or defending suits in Colorado, it would be a direct interference with inter-state com- merce, and therefore, in my opinion, unconstitutional. If it is beyond the power of the state to declare in- valid contracts made by a foreign corporation, which 55 are transactions in inter-state commerce, then the pre- vention of the enforcement of said contract is equally beyond its power. To permit this to be done would render nugatory the protection afforded by the consti- tution. In McNaughton v. McGirl, 49 Pac. Rep., 651 (Mont.), the court in speaking of the effect of a state statute upon a contract made without the state by a foreign corporation engaged in inter-state commerce, said: "No construction can be put upon the statute of Montana which would render such a contract void without invading the exclusive right of Con- gress. If, therefore, this contract sued on was lawfully made, notwithstanding a statute which declares or attempts to declare it void, it follows that any legislation of the state which seeks to prevent the enforcement of the contract is equally an invasion of the exclusive right of Congress. It must be true that if the state cannot declare the contract void, it cannot prevent the enforcement of the contract." See also : Cooper Mfg. v. Ferguson, 113 U. S., 727, and notes to same in vol. 10 Rose's notes to the U. S. Reports, p. 1023. Prentice & Egan on the Commerce Clause of the Constitution, pp. 177, 195. Haldy v. Tomoor Co., 4 Ohio Dec., 118 and cases cited: Bateman v. Western Co., 20 S. W., 931 (Tex.), and the authorities referred to in my prior opinions. I have carefully considered the views and authorities of Messrs. Osborn & Osborn, in their letter of Decem- ber 4th, last. It is not at all unlikely that the lower courts, and possibly even the Supreme Court of Colo- rado, may hold that a corporation doing solely an in- ter-state commerce business, so far as Colorado is con- cerned, will not "be permitted to * * * prosecute or defend any suit in this state until said fee has been paid." It is my opinion that such rulings, if made, will not 56 be sustained by the Federal Courts. Whether as a practical question it would be cheaper for you to pay the fee, is not for me to say. Answering the suggestion of the Colorado attorneys that the Soda Fountain Company organize a subsidi- ary corporation to sell goods in Colorado, the laws of Illinois do not permit corporations organized under its laws to own or control another corporation through the ownership of its stock. There is no legal objection, however, to persons connected with or even owning the entire stock of the Illinois Company, owning also the stock of a foreign corporation. NOTE: See note to opinion of July 11, 1901, to Challenge Ma- chinery Co. EIGHT OF CARRIER TO EXACT CAR SERVICE OR DEMURRAGE CHARGES, AND WHETHER CARRIER HAS LIEN ON GOODS FOR THE SAME. (Foley Mfg. Co., January 30, 1902.) "1: Can railroad companies enforce the pay- ment of demurrage or car service charges when cars are not unloaded within a reasonable time? "2: Have the railroad companies a lien on the goods shipped, for such demurrage, after the freight has been paid or tendered!" Answering the second question first, we beg to ad- vise you that the Supreme Court of this state has held that in the absence of an express contract, a railroad company has no lien for demurrage charges, and, therefore, is not justified in refusing to deliver a ship- ment after freight thereon has been paid or tendered. The Supreme Court has also held that the mere adop- tion and publication by a railroad company of rules respecting demurrage charges and knowledge of such rules, by the shipper, do not make such rules binding on the shipper, but in order to create a lien it must further appear that the shipper agreed to be bound by such rules. The precise question as to whether or not a railroad 57 can make any charge at all, or collect for demurrage, in the absence of a contract, has not, so far as we are aware, ever been squarely passed upon by our Su- preme Court. In the same case in which the Supreme Court held that a railroad company is not entitled to a lien for the payment of demurrage, in the absence of a con- tract, it is strongly intimated that a railroad company cannot charge for demurrage at all, in the absence of an express contract, but it is to be observed that such holding was not necessary to a decision of the case. In considering the Supreme Court opinion, the Ap- pellate Court of the Third District of this state says : "As we read the opinion in that case, we under- stand it to be the view of our Supreme Court that the right of demurrage does not attach to carriers by rail; that liens are only created by law or by contract of the parties ; that when the law gives no lien, neither party can create it without the consent of the other; and that where a railroad company has established rules providing for de- murrage and published them to the public, no such presumption will be indulged against a shipper that he consented to a charge for demurrage be- cause, at the time of shipment, he understood what the rules were." The views expressed by the courts of this state have not, however been generally recognized as correct by the courts of other states. The great weight of authority outside of this state is to the effect that a railroad company has the right, in the absence of any contract, to charge and collect reasonable demurrage after a reasonable opportunity has been given to unload, and that conclusion is based on strong reason. In view, however, of the strong language used by our Supreme Court on this subject, it cannot be safely predicted whether it will adhere to its obiter decision, or will follow the weight of authority, when the question is squarely presented for its determination. Whether the time allowed by the companies for un- 58 loading (forty-eight hours) is, or is not reasonable, will depend entirely upon the surrounding conditions and circumstances, and is a subject for judicial in- quiry. NOTE: But see the later opinion of March 27, 1906, to Western United Gas & Electric Co. Ed. LEGALITY OF PASSING DIVIDENDS ON CUMULATIVE PKE- FEEBED STOCK WHEN THE EARNINGS ARE SUFFICIENT TO PAY SAME. (Illinois Manufacturers' Association, February 8, 1902.) "Can a corporation, organized under the Illi- nois law, legally pass dividends on cumulative pre- ferred stock when the earnings of the company are sufficient to pay same?" The statutes of Illinois do not provide for the issu- ance of preferred stock. If the same exists, it is only by virtue of an agreement between the stockholders and the company. Much will depend upon the lan- guage of the by-laws, of the agreement, and of the pre- ferred stock itself ; also upon the amount of its indebt- edness, net profits, condition of the company, etc. In the absence of such information, I can only state my views generally. I understand that the reason advanced by the com- pany for not paying dividends is that it wishes to pay all floating debts before doing so, and that certain stockholders who have endorsed the company's paper wish to have this paper first paid. The preferred shareholder is not entitled, as a mat- ter of right, to his dividend, eve^n though there may be net profits which might be used for that purpose. The matter rests within the honest exercise of a sound discretion on the part of the directors. If they are reasonable in the exercise of that discretion, and use the profits to improve the corporate property, or in paying its debts, the court will not ordinarily interfere. 59 THE FOREIGN CORPORATION LAW OF MINNESOTA AND WHAT CONSTITUTES DOING BUSINESS THEREIN. (Whiting Foundry Equipment Co., March 4, 1902.) My opinion is asked whether the company is "doing business" in Minnesota within the meaning of the foreign corporation law of that State. The company states : "We have no office or agent in that State, and our only business is done through salesmen, whom we send there for the purpose, or possibly at times through some resident of the State who works on a commission basis." The precise method of doing business is not suf- ficiently clear from the above statement. If all the sales and contracts made in Minnesota are made sub- ject to the approval of the home office here, and the orders are filled from here, this would not constitute "doing business" within the meaning of the law. If the corporation pursues any other method of trans- acting its business in Minnesota, I will, on receipt of the requisite information, advise further. Do its traveling salesmen, in the usual course of business, carry the goods with them, make sales and deliveries therefrom, make collections and give re- ceipts, etc.! The Minnesota law in question contains this express exemption, viz. : "The provisions of this Act shall not apply to * * * drummers or traveling salesmen soliciting business in this State for corporations which are entirely non-residents. ' ' CONSTITUTIONALITY OF THE LAW REQUIRING BLOWERS TO BE USED ON METAL POLISHING MACHINERY. (Peru Plow & Wheel Co., March 4, 1902.) I have your favor enclosing communication from Peru Plow and Wheel Co., in which my opinion is asked as to the constitutionality of an Act of the Legislature of Illinois, passed June 11, 1897 (Session 60 Laws of 1897, page 250), entitled "An act to compel the using of blowers upon metal polishing machinery." Section 1 of that Act is as follows : "That all persons, companies or corporations operating any factory or workshop where emery wheels or emery belts of any description are used, either solid emery, leather, leather covered, felt, canvas, linen, paper, cotton, or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers, or similar apparatus, which shall be placed over, beside or under such wheels or belts in such a manner as to protect the per- son or persons using the same from the particles of dust produced and caused thereby, and to carry away the dust arising from or thrown off by such wheels or belts while in operation directly to the outside of the building or to some receptacle placed so as to receive and confine such dust. Provided that grinding machines upon which water is used at the point of the grinding contact shall be exempt from the provisions of this Act; and Provided, this Act shall not apply to small shops employing not more than one man in such work." The remaining sections contain provisions as to the kind, character and dimensions of the blowers, and provide that the violator shall be guilty of a misde- meanor and punishable by a fine of $25 to $100. The object of the Act is to protect employes en- gaged in a hazardous employment, and is clearly with- in the police power of the State. Similar statutes have been passed in other States, and upheld by the courts. The law, however, contains the following as a proviso to section one: "Provided, this Act shall not apply to small shops employing not more than one man at work." The Act, therefore, discriminates in favor of shops and factories employing not more than one man, and is partial or class legislation. Although the Legisla- 61 ture has the right to regulate dangerous employments, such regulations must be uniform and operate equally upon all persons in the same situation and condition. If the law attempts to classify, the classification must have a reasonable basis and must be suggestive of a real difference between the subjects or persons sought to be classified. If the classification is arbitrary and wanting in reason, it is a denial of the equal protec- tion of the laws and is a violation of the 14th Amend- ment to the Constitution of the United States. The regulation of a business which exempts from its operation those doing a certain amount of busi- ness, or the regulation of an employment which ex- empts those employing a limited number of men, there being no other reason why such business or such per- sons should be exempted, is class legislation and is in violation of the 14th Amendment. The law under consideration being for the protec- tion of those persons engaged in a dangerous employ- ment, no reason suggests itself in the nature of the employment why in the case of the employer of but one laborer there should be exemption, while the same employer in the same line of business of two laborers is not exempt. If the law is beneficial in one case it is equally so in the other. In my opinion, the proviso ought and probably will be held unconstitutional. If the proviso is unconstitutional, the whole Act will fall. In other words, if the proviso exempting the employer of one laborer is illegal, the enforcement of the Act as against all employers (including employers of one laborer) would be judicial legislation of a most fla- grant kind, and would be extending the Act to a class expressly exempted by its very language. If properly attacked, I believe the whole law will be held uncon- stitutional. See: Cotting v. Goddard, 22 U. S. Sup. Ct. Eep., 30. ' State v. Haun, (Kan.) 47 Lawyer's Rep. Ann. 369. 62 Union Sewer Pipe Co. v. Connelly, 99 Fed., 354. Aff., 184 U. S., 540. and numerous other cases that could be cited. THE FOREIGN CORPORATION LAW OF MANITOBA AND WHAT CONSTITUTES DOING BUSINESS THEREIN. (Parlin & Orendorff Co., March 4, 1902.) The company asks whether it is obliged to pay any taxes or file its articles of incorporation in the Prov- ince of Manitoba. The company states: "Our business is conducted through a transfer house, and all contracts are made subject to ap- proval of our company at Canton, Illinois. We keep a limited supply of stock on hand at Winni- peg in the hands of transfer agents, sending them through the custom house on duplicate bills to our- selves, but we have no warehouse or storage room outside of what is given by transfer agents for necessary stock and on which they charge us win- ter storage. "The goods shipped to Winnipeg for stock are practically for distribution, as our shipments are intended to cover the contract orders already re- ceived. ' ' The law of Manitoba governing foreign corpora- tions, passed in 1897, provides as follows : Section 1 provides that any corporation ' ' incorporated under the laws of * : * the United States of America, * * * may obtain a license * * to carry on its business within the Province of Manitoba Section 5 provides as follows: "Before the issue of a license to any such com- pany, institution or corporation, the company, in- stitution or corporation shall file in the office of the Provincial Secretary: (a) A certified copy of the Act of Incorpora- 63 tion, or other instrument of association of the company ; (b) An affidavit or statutory declaration that the said company, institution or corporation is still in existence, and legally authorized to transact business under its Act of Incorporation, or other instrument of association; (c) A copy of the last auditor's report upon the finances of the company, institution or cor- poration. ' ' Section 5 also provides for the filing of a power of attorney designating the head office of the company in Manitoba, and authorizing the agent to receive service of process in all actions in respect of liabilities in- curred in the Province. Section 8 provides for the publication of the issu- ance of such license. Section 9 provides that no foreign corporation, not having obtained a license under this Act, shall be capa- ble of taking, holding or acquiring any real estate within the Province. "or of exercising the powers mentioned in Sec- tion 11 of this Act." Section 11 provides as follows: "Such company, institution or corporation, heretofore or hereafter licensed, may take and hold any mortgages of real estate, and any rail- way, municipal or other bonds of any kind what- soever, and on the security thereof may lend its money, whether the bonds form a charge on real estate within the Province or not, and may hold such mortgage in its corporate name, and may sell and transfer the same at its pleasure, and in all respects shall have and enjoy the same powers and privileges with regard to lending its moneys and transacting its business within the said Province, as a private individual might have and enjoy, so far as may be within its corporate pow- ers, and within the competence of the Legislature of Manitoba to grant." 64 The law of 1898 adds the following section : "Every company, institution or corporation licensed under this Act, shall annually transmit on or before the fifteenth day of March in each year, to the Provincial Secretary, a statement verified by the oath of the principal agent for the Province of Manitoba, setting forth the capital stock of the company, the amount of stock sub- scribed and the amount paid in upon such stock; and as to the business of said company, institution or corporation in the Province of Manitoba, the amount invested in mortgage, the esti- mated value of real estate under mortgage, the number of acres of farm lands under mortgage, and such other details as the said Provincial Sec- retary may require; and the said statement shall be made up to the end of the last preceding fiscal year of the company's business. Every company making default in complying with this section shall incur a penalty of twenty dollars every day during which default continues ; and every Di- rector, Manager, Agent, or Secretary who shall knowingly and wilfully authorize or permit such default shall incur the like penalty." The Act of 1900 taxing foreign corporations only applies to banks, insurance companies, loan and trust companies, street railway, telegraph, telephone, gas, electric light and express companies. The laws in question are constitutional, and have been upheld by the High Courts of Canada. A for- eign corporation has no absolute right to transact business outside the State of its incorporation, and such right only exists by the comity of the foreign States. Such States, therefore, have the right to im- pose whatever conditions on such foreign corporations they see fit to impose. Whether or not the Parlin & Orendorff Co. is sub- ject to those laws presents a more difficult question. What constitutes " doing business" so as to subject an American company to its laws, has never been squarely passed upon by the courts of Canada. Kindred ques- 65 tions, however, have on several occasions come before those courts. In Murphy v. Bridge Co., 18 Ont, Pr. Reps., 495 the court said: "I think that what is meant by 'a person who transacts or carries on any of the business of, or any business for any corporation' is at least some person who is an agent of the corporation who transacts or carries on here, or, manages or con- tracts for them here, some part of the business of the corporation which the corporation proposes to do, and for which they wer,e incorporated." And in that case it was held that an engineer of the corporation in Canada, engaged in constructing a bridge and who also paid the help, was not an agent of the corporation within the meaning of a law authorizing service on an agent who transacted business for the corporation. In City of Halifax v. Jones, 28 N. S. Rep., 452, a law which levied a license tax on every foreign corpo- ration "doing business" in the Province came before the Supreme Court of Nova Scotia. The defendants were merchants doing business in Halifax and owned no real or personal property there. They were agents of the Miss. & Dominion S. S. Co., an English corpo- ration, not incorporated in Nova Scotia and having its head office in Liverpool, Or. B. The business carried on by the company in Halifax, through their agents, was of a continuous character, selling tickets, receiv- ing freight, money, etc. The agents received a com- mission on sales. It was held that the company did business at Halifax and was liable for the tax. In La Bourgogne, Opp. Cas., 1899, P. 431, it was held that a foreign steamship company, having an office in London in charge of an agent who made freight and passenger contracts, paid dues and forwarded and de- livered goods carried by the company, could be sued in England by service upon such agent. In Macdougal v. Schofield Woolen Co., 16 Que. S. C., 411, it was held that a person who sells goods on commission for a foreign company, and who keeps 66 samples in his office or takes them to customers from whom he gets orders, which are filled by the company, which sends the goods directly to the customers, is not an agent of the company so as to authorize service upon him of an action against the company. The statement in the company's letter as to their method of doing business in Manitoba is not quite clear. Has the company a representative in Mani- toba and what is the scope of his authority? Does he sell goods or make contracts for the company? Are sales made directly from the "stock" stored in Man- itoba? Are goods ordered in Manitoba shipped di- rect to parties ordering same? What is meant by the statement that the stock in Winnipeg is "practically for distribution as our shipments are intended to cover the contract orders already received?" Orders received where and by whom? Does the company maintain an office in Manitoba and does its name ap- pear thereon? With this additional information at hand a more definite conclusion can be expressed. THE FOREIGN CORPORATION LAW OF MANITOBA. (Parlin & Orendorff Co., March 8, 1902.) I have your favor enclosing copy of letter from Par- lin & Orendorff Co. containing additional informa- tion as to their method of doing business in Manitoba. The company states : ' ' We have no general agents in Manitoba. First: Our sales are all made through a firm of jobbers who sell on a percentage basis, sub- mitting all contracts to our company at Canton, 111., and such agents are absolutely without au- thority to accept any contracts, but only arrange terms, and submit them to us for approval and ac- ceptance. Second: Sales are not made direct from the stock stored in Manitoba. Third: Goods ordered in Manitoba, or or- 67 dered from Canton, and either shipped direct from Canton or to Winnipeg, to be distributed. Fourth: 'Stock in Winnipeg practically for distribution, as our shipments are intended to cover contract orders already received.' These orders as above stated are only accepted in Can- ton, 111., by our company. We keep a limited stock in hands of transfer agents at Winnipeg, to be shipped on second or- ders, under the terms of contracts which have been received and accepted at Canton, Illinois, allowing the transfer agents to fill such second or- ders, which we specifically provided for in the original contract accepted in Illinois. Our com- pany does not maintain an office in Winnipeg. ' ' As I stated in my previous opinion, the question as to what constitutes "doing business" within the meaning of the law of Manitoba, has never been squarely passed upon by the courts of Canada. Under the decisions of the American courts the method of transacting business pursued by the Parlin & Oren- dorff Co. would constitute "inter-state commerce," and would not subject that company to the operation of the foreign corporation laws of the various states. These decisions, however, are based on that clause of the Constitution which gives to Congress the exclusive power to regulate commerce between the States, and does not, therefore, extend to Canada. There is no such inter-state commerce statute or line of decisions in Canada. While the question is in- volved in some doubt, I am inclined to the opinion that the Parlin & Orendorff Co. is not "doing busi- ness" in Manitoba within the meaning of the foreign corporation law of that Province. If this company did not send a supply to Winnipeg quarters, from which occasional distribution is made, I would entertain a more positive opinion that compliance with the law in question is not necessary. As a practical question, however, much depends upon how much business the company actually does in that Province. Compliance with the law does not require the payment of any 68 license fee or tax. If, therefore, the company does a comparatively large business in Manitoba, rather than run any chance in enforcing its obligations and being compelled to stand the cost of litigating the question, it will be the course of prudence, I think, to comply with the law otherwise not. THE FOREIGN COEPOEATION LAW OF MINNESOTA AND EF- FECT OF SUBSEQUENT COMPLIANCE WITH THE LAW ON EIGHT TO MAINTAIN SUIT. (Acme Harvester Co., March 14, 1902.) "Bef erring to the Foreign Corporation Law of Minnesota, passed in 1889, will you kindly inform us what position we are in to maintain suit on contracts made since the passage of this law, and prior to date of filing incorporation papers and complying with said law? We have recently filed our papers in that State, and would like to know if it will be necessary to re-write contracts prior to that time." The question asked is one upon which there is a conflict of authority. The weight of authority, how- ever, is to the effect that a subsequent compliance with the law, which imposes conditions upon the right of a foreign corporation to do business or to main- tain a suit, will enable such corporation to maintain a suit on contracts entered into before such compliance, unless such contracts are expressly declared to be void by statute. The Minnesota statute has no such provision. I am, therefore, of the opinion that the Acme Company can maintain suit on contracts made in Minnesota prior to its compliance with the law. NOTE: See contrary opinion on same subject under date May 14, 1902. Ed. 69 THE EIGHT OF A RAILROAD COMPANY TO DISCRIMINATE IN ENFORCING CAR SERVICE CHARGES AND THE REASONABLE- NESS OF THE 48 HOUR RULE. (Monmouth Mining & Mfg. Co., April 12, 1902.) "We thank you for the copy of the opinion in regard to the car service proposition, but as this does not cover all the points in question, we would be very glad to have Mr. Mayer look into this further and cover the matter more fully. We find there are a number of points on the Burlington system, for instance, where this car service rule is not in effect; and can they enforce this rule in our place and not all? And think further that this arrangement is a hardship on large manu- facturers, as they are compelled to unload cars inside of what the By. Co. call 48 hours, while under the labor union rules of this state there are only 16 hours actual working time." The first question, viz : As to the right of a railroad company to enforce car service charges at one place, which it does not enforce at other places it is im- possible on the facts stated to answer categorically. A railroad company cannot discriminate with respect to charges or facilities between persons and localities where the conditions and circumstances are similar; but what constitutes discrimination is a relative ques- tion which depends on the facts and circumstances in each case. Conditions may exist in one locality which are absent in another, which would justify a difference in respect to facilities or charges. The second question, as to the reasonableness of the 48 hour rule, can only be determined from all the facts and circumstances. As a matter of law, 48 hours is not unreasonable. If the rule allows sufficient time to unload in ordinary cases, without reference to any rare or exceptional circumstances incident to a par- ticular shipper at some particular time and without reference to an unfavorable condition of the weather, its validity will probably be upheld by the courts of 70 the state. Similar rules have been held by the courts of other states to be reasonable as to time. VALIDITY OF SERVICE OF PROCESS ON CUSTOMER OF CORPO- RATION IN THE STATE OF KENTUCKY. (Parlin & Orendorff Co., April 12, 1902.) "As members of the Illinois Manufacturers' Association, we submit a statement of a suit com- menced by the Commonwealth of Kentucky in Todd County Circuit Court. Under the state cor- poration laws we were recently permitted to re- cover a stock of merchandise from trustee in bank- ruptcy in Federal District Court covering Todd County. Said Court held that the question of ownership came under the jurisdiction of the State Court, and the Circuit Judge of Todd County held our contract to be binding and issued an order in our favor upon the trustee for the surrender of the goods. "As it happened that this stock of goods rep- resented almost the entire assets of bankrupt, other creditors were dissatisfied. "We are not doing business within the State of Kentucky, maintaining no office or warehouses, and acceptance of all contracts and statements is made either at St. Louis, Missouri, or Canton, Illi- nois. "The attorney of the Commonwealth got his service on us through a customer in Todd County, holding that customers are legal agents, and yet the law under which the suit is drawn demands that we must appoint a legal agent upon whom service may be obtained. Our St. Louis manager advises us that he has decided to file a motion to quash the summons, on the grounds that we have no legal agent in the State and that we are not doing business within the State of Kentucky, and are not, therefore, amenable to their corporation laws. "We bring this matter to your attention, as 71 the record of such suits may be of interest to other members of the Association. If you have any suggestions to offer, we will be glad to hear from you. ' ' I do not understand that the Parlin & Orendorff Co. desire any particular question answered. If the facts are as stated, the company is not doing business in Kentucky, and is not, therefore, required to appoint an agent upon whom process can be served in actions arising in Kentucky. The service upon a customer of the company, he not being its agent and not transacting any business for it, or holding himself out as its agent, is not valid ser- vice, and, on proper motion being made, it should be quashed. I am not sufficiently acquainted with the nature of the suit to be able to make any suggestion other than this: If the case is of a character that permits it, I would deem it advisable to attempt to remove it to the Federal Court. The petition and bond for removal must be filed on or before the time fixed by the Ken- tucky law for the defendant to plead. The motion to quash can, I think, be more advantageously made and disposed of in the U. S. Court. LIABILITY OF EMPLOYES FOR DAMAGES CAUSED BY THE AC- TION OF A LABOR UNION. (George H. Benedict & Co., April 12, 1902.) "We are desirous of ascertaining whether it has ever been determined in this state whether there is any responsibility attached to a labor union in an action for damages. Our reason for making the inquiry is that recently we received an order for a considerable amount of work from a con- cern out of town, who, by the way, are in the same line of business as ourselves, and whose workmen were on a strike. Our people discovered when the work was partly completed that it was from the concern aforesaid and refused to finish the work. As a consequence we are out the cost of the mate- 72 rial and labor involved up to that point, to say nothing of whatever damage there may have been to our business by their action. From this infor- mation you will see that the affair is not of the kind that ordinarily creates trouble with the labor unions, and it is our desire to know whether a non- incorporated union can be made responsible in an action for damages." I understand further that the Company has no con- troversy whatever with its employes as to their wages or otherwise; that the representatives of the union directed the employes of the Company to quit doing the particular work heretofore mentioned ; which direc- tion was communicated to the Company through its foreman; that the union has no grievance whatever against the Company ; that its only reason for causing the stoppage of the work aforesaid is to injure the con- cern engaged in the same line of business, who for- warded the work to the Company and whose employes were then on a strike; that the action of the union caused the Company to abandon its contract to its damage. Employes engaged in a particular business have the undoubted right to organize into a labor union and to do all lawful acts by lawful means to advance their trade interests. They have the right to quit work in a body to peaceably compel an advance in their wages. If an employer is damaged by such conduct no action will lie. The members of a union have no right, however, to use threats or coercion to destroy or injure a man's business or to dictate to him how he should conduct the same. In this case the Benedict Company had no quarrel with its employes. They were satisfied with their em- ployment and the rate of wages paid them. The action of the union was not for the purpose of benefiting the employes of the Company, but for the purpose of injuring another concern, in the same line of business, engaged in a controversy with its employes. All the employes had the right to quit work, but they had no right to combine in order to compel their employer to 73 withdraw from a mutually profitable relation with a third person for the purpose of injuring that third person, when the relation sought to be broken had no effect whatever on the character or reward of their services. The action of the union was in effect a boy- cott and constituted an unlawful conspiracy. While the questions involved are not entirely free from doubt, I entertain the opinion that the members of the union would probably be held liable to the Benedict Com- pany for the damages caused by the action of the union in instructing the employes to stop the doing of the work in question. Some cases very much in point are: Thomas v. Cincinnati, etc., Ry. Co., 62 Fed., 803; Moore v. Bricklayers' Union, 23 Week. Gin., L. B., 48; Temperton v. Russell, 1 Q. B., 715 (1893) ; Cowenv. Rutherford, 106 Mass., 1; Toledo, etc. Ry. Co. v. Penn. Co., 54 Fed., 730; 8. S. Co. v. McKenna, 30 Fed., 48. In arriving at this conclusion, I have not overlooked the case of Allen v. Flood, Appeal Case (House of Lords) for the year 1898, page 1, whose doctrine is explained, if not entrenched upon, in the subsequent case of Quinn v. Leathern, Appeal Cases (House of Lords) 1901, page 495. THE FOREIGN CORPORATION LAW OF NEW JEKSEY AND WHAT CONSTITUTES DOING BUSINESS THEREIN. (Inland Steel Co., April 17, 1902.) "We sell steel to New Jersey concerns either by correspondence or by means of a visiting sales- man. We carry no stock of goods in New Jersey and have no resident representative or salesman. Under these conditions are we to be considered as doing business in New Jersey, and are we liable for the state fee for filing statement, and a fee each 74 year for filing our annual report? And are we required to designate a local (or state) agent?" We assume that the orders taken by the traveling salesman in New Jersey are taken subject to the ap- proval of the home office. If this assumption is cor- rect, I am of the opinion, on the facts stated, that the Company is not ' l doing business ' ' in New Jersey, and is therefore not required to comply with the foreign corporation law. RIGHT OF A COMPANY TO HAVE ITS NAME COPYRIGHTED OR TO PROTECT ITS NAME WHERE IT IS NOT INCORPORATED. (Western Salvage Wrecking Agency, May 13, 1902.) "We, a copartnership, have done business for the past eighteen years under the style of 'West- ern Salvage Wrecking Agency, ' and now find other concerns are using our style with slight modifica- tion. Would kindly like to know whether it is possible to 'copyright' or go through other form to secure to us the continued and exclusive title without incorporating and to prevent others from its use in modified form without injunction pro- ceedings. ' ' The facts set out in the foregoing communication are not sufficient to form the basis of a definite legal opin- ion. There are many considerations affecting the right to the exclusive use of a trade mark or trade name, such as the length of the user, whether or not the user has been exclusive, the business in connection with which the trade name or trade mark has been used, the similarity of the alleged infringement, etc. A few suggestions may, however, answer the query of the Salvage Company. In the first place no relief can be granted unless re- sort be had to the machinery of the courts. Secondly, there is no process by which the name can be the sub- ject of a "Copyright." There is a Federal Statute providing for the registration of trade-marks or trade names, but this statute does not have the effect of creating a trade mark or trade name not otherwise 75 valid. The registry is merely prima facie evidence of the right to the exclusive use of the trade-mark or trade name, and the burden is thrown on those who deny the right to disprove the same. There is another consideration which may arise. The name "Western Salvage Wrecking Agency" implies that the user is a corporation. In this state the use of a corporate name by a party not incorporated is a misrepresentation, which would debar that party from maintaining a suit to establish a right to the exclusive use of such corporate name. (Clark v. Aetna Iron Works, 44 111. App., 510.) The last objection can be obviated by incorporating. If there is any other point which the Salvage Agency desires answered, please ad- vise me. THE RIGHT OF A TELEPHONE SUBSCRIBER TO RECOVER BACK AMOUNTS PAID IN EXCESS WHEN PAID WITHOUT PRO- TEST. (Hibbard, Spencer, Bartlett & Co., May 13. 1902.) ' ' In connection with the telephone litigation may we inquire whether in the event your suit is suc- cessful, those who in the meantime have paid tele- phone charges at the rate of $175 per annum, with- out protest, will be in a position to recover the ex- cessive amounts so paid? Or will the failure of the telephone user to protest when he pays at the rate of $175 per annum debar him from after- wards attempting to recover the excessive amounts ? ' ' As a general rule, voluntary payments cannot be recovered back. Where, however, the excessive pay- ment is demanded by and made to a public utility com- pany, such as a common, carrier, gas, water or tele- phone company, such company having the power to compel obedience to its requirements by a refusal to supply the facilities which are necessary to a proper conduct of business, I am of the opinion that the pay- ments cannot be considered as voluntary and an action will lie to recover back the excessive charges so paid. 76 Judge Tuley in his recent decision in the telephone case held as follows : "When a subscriber cannot obtain satisfactory service except by entering into a contract by which he agrees to pay a greater rate than that fixed by the ordinance, the rate agreed to be paid, so far as it is in excess of the rate prescribed by the ordi- nance, must be held to be an illegal exaction, and not only illegal but forced, a forced agreement by the company exacted of the subscriber, and not a voluntary contract which would stop him from disputing the same." There are some apparently conflicting decisions in some of the states, but the great weight of authority is to the effect that such payments when compulsorily made can be recovered back. NOTE: See note in 1 111. C. C., 144, 579. Ed. THE FOREIGN CORPORATION LAW OF TENNESSEE AND WHAT CONSTITUTES DOING BUSINESS THEREIN. (Union Special Sewing Machine Co., May 13, 1902.) "Enclosed herewith you will find a letter from the Controller of the State of Tennessee, which ex- plains itself. The only business that we do in the state is through the medium of our traveling salesmen who are not residents of the state of Tennessee, but make occasional trips into the state for the purpose of selling machines to manufac- turers and not to dealers. The goods are billed from our office here and the collections made from this point. Our salesmen do not deliver the goods, but only solicit orders for the same and the ship- ments are made from here. We would be glad to have you advise us if we are subject to the tax of $200 mentioned in the Controller's letter. It would seem to us that we were simply engaged in interstate commerce which their law exempts. ' ' The letter referred to is a demand on the Union Company that it pay to the Controller the $200 privi- 77 lege tax levied on all companies selling machines in the state. I am of the opinion on the facts stated that the business transacted by the Union Company constitutes interstate commerce and that it is, therefore, not obli- gated to comply with the law in question. There are other provisions of the law which raise doubt as to its constitutionality, but as the Sewing Ma- chine Company is not interested if the law in question does not apply to it, I abstain from further comment. THE FOREIGN CORPORATION LAW OF MINNESOTA AND EF- FECT OF SUBSEQUENT COMPLIANCE THEREWITH ON RIGHT TO MAINTAIN SUIT. (Acme Harvester Co., May 14, 1902.) Sometime since, in answer to the query of the Acme Harvester Company as to the effect of a compliance with the foreign corporation law of Minnesota upon contracts made in that state, before such compliance by a corporation doing business therein at the time of making such contract, I advised that the weight of authority was to the effect that such subsequent com- pliance with such a law would enable the corporation to maintain a suit in that state on contracts made therein, before such compliance. The Supreme Court of Minnesota has, however, now decided that contracts made in that state by a foreign corporation doing business therein at the time before compliance with the law of Minnesota, are void in Min- nesota, and that no subsequent compliance with such law would make them valid, and that therefore no action can be maintained in Minnesota there- on. See : Heilman v. Peimesisl, 88 N. W., 441. The decision rendered is, in my opinion, against the weight of authority, and the cases cited by the court in its support do not fully sustain its conclusion. The decision, however, is the present law of Minne- sota, and the members of your association should gov- ern themselves accordingly. 78 POWER OF TRAVELING SALESMEN TO BIND HIS EMPLOYER ON CONTRACT MADE BY HIM IN FOREIGN STATE. (J. W. Sefton Mfg. Co., June 7, 1902.) 1 ' We beg to acknowledge receipt of Mr. Mayer 's opinion relative to foreign corporation laws of New Jersey. " Noting particularly the opinion relative to the laws of New Jersey in which he says : ' We as- sume that the orders taken by traveling salesmen in New Jersey are taken subject to approval of the home office. ' We would ask whether or not it is necessary to have this understood with the cus- tomer at the time the order is taken, or whether it is generally understood that any orders taken by traveling salesmen in the different states on the ordinary order blanks which are being used, are always subject to the approval of the home office, or is the house holden for the action of the salesman as a representative, unless specifically provided for by an entry on the order at the time it is taken, relative to its being subject to ap- proval. ' ' I do not know whether or not there is any custom of the trade under which it is understood that all orders received are taken subject to the approval of the home office. The question whether or not an agent can, in the absence of such custom, make a contract which is binding on the principal without his approval, depends upon the circumstances of each case. The principal is bound by all acts within the apparent scope of the agent 's authority. If in the course of dealing the cus- tomers acquire knowledge as to the extent of the agent's authority, the customer cannot hold the prin- cipal liable for the acts of the agent in excess of his authority. All difficulties will be avoided, however, by writing on the order blanks the following: "All orders taken subject to the approval of the home of- fice." 79 WHETHER PROPERTY IN THE HANDS OF SALES AGENTS IN DIFFERENT PARTS OF ILLINOIS OUTSIDE OF CHICAGO AND IN OTHER STATES, SHOULD BE LISTED FOR TAXATION IN CHICAGO. (Oliver Typewriter Co., June 14, 1902.) "Have you had occasion to inquire of your at- torney whether if we have stock on consignment with sales agents in different parts of this state or in other states, such stock should be returned by us in our tax schedules in Chicago, or be listed at the place where stock is held. We presume the latter would be the proper course. If you have any information on this point, please favor us with the same as soon as convenient, and oblige." Section 7 of the Revenue Act provides (3 S. & C. Eev. Stat., p. 3407) : "Personal property, except such as is required in this Act to be listed and assessed otherwise, shall be listed and assessed in the county, town, city, village or district where the owner resides. * * Stock at place of corporate office. The capital stock and franchises of corporations and persons, except as may be otherwise provided, shall be listed and taxed in the county, town, district, city or vil- lage where the principal office or place of busi- ness of such corporation or person is located in this State. If there be no principal office or place of business in this State, then at the place in this State where any such corporation or person trans- acts business." Section 9 provides : ' ' 9. That property of manufacturers and others, in the hands of agents, shall be listed and assessed at the place where the business of such agent is carried on." Section 11 provides: "1. Personal property in transitu, shall be listed and assessed in the county, town, city or district where the owner resides; Provided, if it 80 is intended for a business, it shall be listed and assessed at the place where the property of such business is required to be listed." Section 18 provides : ' ' 18. No consignee shall be required to list, for taxation, the value of any property consigned to him for the sole purpose of being stored or for- warded, except to the extent of his interest in such property. ' ' Section 19 provides : "19. Persons required to list property on be- half of others shall list it in the same place in which they are required to list their own ; but they shall list it separately from their own, specifying in each case the name of the person, estate, com- pany or corporation to whom it belongs." The stock, when in the hands of sales agents in dif- ferent parts of this state, should therefore, be listed by such agents at the place where they carry on their business. Property situated in other states, need not be listed in Illinois, because it is taxable only in the state where located. Otherwise, if taxed here, and also subject to taxation where located, there would be double taxa- tion, and this is not countenanced by the courts. 1 Desty on Taxation, pp. 55, 56, et seq.; Rorer on Interstate Law, 281, et seq.; People v. Comm., 23 N. Y., 224 ; Mills v. Thornton, 26 111., 300; Irving v. R. R. Co., 94 111., 105. WHETHER EEPOETS ABE REQUIRED TO BE MADE BY FOREIGN CORPORATIONS UNDER THE FOREIGN CORPORATION LAWS OF OHIO AND INDIANA. (American Straw Board Co., June 16, 1902.) "I would like to have an opinion from the at- torney of the Manufacturers' Association on the following : ' ' First : Whether or not the States of Ohio and 81 Indiana, or either of them, have laws requiring foreign corporations to make reports of their property and business with the said state under penalty ? " Second: Whether or not there are such laws we ought to make the required reports, and what reports are required?" The statutory provisions of those states are as fol- lows: OHIO. This statute provides that every foreign corpora- tion shall file a sworn statement containing the follow- ing facts: ijajj "1. The.number of shares of authorized capital stock of the company and the par value of each share. "2. The name and location of the office or offices of the company in Ohio, and the name and address of the officers or agents of the company in charge of its business in Ohio. 1 '3. The value of the property owned and used by the company in Ohio, where situated, and the value of the property of the company owned and used outside of Ohio. "4. The proportion of the capital stock of the company which is represented by property owned and used and by business transacted in Ohio." There is a privilege tax of one-tenth of one per cent, upon the proportion of the authorized capital stock of the corporation represented by property owned and used and business transacted in Ohio. The law provides for a penalty, for non-compliance with the law, of $1,000 for each month, and also pro- vides that no action shall be maintained by any such corporation upon its contracts during the time of such non-compliance. It is also made a misdemeanor for any person to solicit business for any such corpora- tion until it complies with the law. 82 INDIANA. This statute provides, under penalty, that agents of foreign corporations, before entering upon the duties of their agency, shall deposit in the clerk's office of the county where they propose doing business, the power of attorney or other authority under which they act as agents. The statute also provides that such agents shall also file a duly authenticated copy of the order, or resolu- tion of the directors or managers of the corporation, authorizing citizens and residents of Indiana to sue in Indiana and obtain service of process on such agent. The act of 1901 provides that every foreign corpora- tion shall maintain a public office in Indiana for the transaction of its business, where proper books shall be kept; that an agent shall be designated upon whom service of process can be had; that a certified copy of the certificate or character shall be filed with the Secretary of State, together with a sworn statement showing the proportion of the capital stock of said corporation represented by its property located and business transacted in Indiana with the fee required of domestic corporations. There is a penalty of $1,000 for non-compliance. The question of whether or not a foreign corporation is required to comply with these laws, in each case depends upon whether it is "doing business" in those states, and what is " doing business" is dependent upon the facts and circumstances. Upon what constitutes "doing business" I have from time to time given numerous opinions to the Association. 83 AS TO WHETHER SALESMEN WHO BENDER FRAUDULENT EX- PENSE ACCOUNTS CAN BE PROSECUTED CRIMINALLY AND UNDER THE LAWS OF WHAT STATE. (Hibbard, Spencer, Bartlett & Co., June 17, 1902.) "A traveling salesman in Iowa was employed under an oral contract by a Chicago wholesaler. By the terms of this contract the salesman was required to keep an accurate account of the money expended by him for his traveling expenses, these expenses to be refunded to the salesman at stated intervals by his employer upon presentation of an itemized expense account. A set of printed in- structions, from which the following is an extract, was handed to the salesman: ' ' ' We expect to pay, and are quite willing to pay, all legitimate traveling expenses (such as Kail- road, 'Bus and Stage Fares, Excess Baggage, Liv- ery, Hotel Bills, for lodging and meals only Telegraph and Postage), that are necessarily in- curred in the transaction of our business, at just the figures which the salesman actually pays. No salesman can honestly charge more, and we aim to engage only honest men. Please keep an ex- act itemized account each day, just as you would if you were keeping a cash account in the house instead of on the road. ' " Having such an agreement with and such in- structions from his employer, the salesman sent in a false itemized statement of his expenditures, in which certain items were materially exagger- ated. For instance, he charged $10 as 'Railway Fare' where $5 only was expended. Five dollars was charged as 'Hotel Bill,' when as a matter of fact $2 only was expended. Relying upon the accuracy of the account, the employer remitted the full amount claimed by the salesman. "Did the salesman commit a crime! If so, what crime, and against the laws of which state?" In my opinion the salesman is guilty of the crime 84 of obtaining money by false pretenses, and the offense is committed in the state where the property is ob- tained. The method of obtaining the money and place where paid is not entirely clear from the above state- ment. Assuming that the remittance was made in Chi- cago, in cash or by check or draft, on a bank in Chi- cago, which was subsequently cashed, the offense, in my opinion, was committed in Chicago. Such is the weight of authority: See: Sec. 12 Ency, of Law (2nd Ed.), pp. 847, 848. 1 McClain's Criminal Law, p. 696; 8 Ency. Pleading & Practice, p. 858 ; U. S. v. Plympton, Fed. Gas., 16057 ; Commonwealth v. Wood, 142 Mass., 459; State v. Schaeffer, 89 Mo., 271. THE OBLIGATION TO PAY EMPLOYES WHO LEAVE THEIR EM- PLOY BEFORE THE REGULAR PAY DAY. (Eclipse Gas Stove Co., July 14, 1902.) ' ' We would be pleased to have you advise us as to our obligation to pay help that leave our em- ploy before our regular pay day. Our custom is to pay every two weeks, holding back one week's time, and in a number of instances men have de- manded their pay on the day they leave. ' ' Where the hiring is by the week and the servant abandons his employment before the completion of the week, without just cause and without the master's consent, he is not entitled to recover anything for the services performed during that week. The time of payment of wages depends on the contract. If the servant was hired upon the agreement that his wages should be paid at stated intervals, then they are not due until such time, even though the servant leaves before that time. If there is no agreement as to the time of payment, the wages are due at the time of the completion of the period of hiring. If there is a custom of the house as to the time of payment, the 85 servant is bound only by such custom only where it is uniform, long established, generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it. The custom cannot, however, vary the terms of an express contract. The so-called "Weekly payment of wages act," passed April 23, 1901, was held unconstitutional in Braceville Coal Co. v. People, 147 111., 66. THE ASSESSMENT OF CAPITAL STOCK OF CORPORATIONS. (Illinois Manufacturers' Association, Aug. 19, 1902.) The questions you propounded to me for an opinion, I answer as follows: 1. Under Clause 4 of Section 3 of the Revenue Act, "the capital stock, including the franchise, of all corporations, organized for pecuniary profit is re- quired to be assessed by the State Board of Equal- ization, except corporations organized for purely manufacturing purposes, or for the mining and sale of coal, or for printing, or for the publishing of newspapers, or for the improving and breeding of stock. ' ' 2. By said Clause 4, it is further provided that "the capital stock of all companies and associa- tions now or hereafter created under the Laws of this State (except those required to be assessed by the local assessors as hereinafter provided), shall be so valued by the State Board of Equaliza- tion as to ascertain and determine respectively the fair cash value of such capital stock, including the franchise, over and above the assessed value of the tangible property of such company or asso- ciation * * * provided further that companies and associations organized for purely manufacturing purposes * * * shall be assessed by the local as- sessors in like manner as the property of individ- uals is required to be assessed.'- 3. By Section 32 of the Revenue Act, it is provided that corporations other than those required to be as- sessed by the local assessors 86 "shall, in addition to the other property required to be listed, make out and deliver to the assessor a sworn statement." In that statement it is necessary to specify, among other things, the market value or if no market value, the actual value of the shares of stock. To that value there is to be added the total amount of all indebted- ness for current expenses. From the total thus ascer- tained there is to be deducted the assessed valuation of all tangible property. In case of failure or refusal to make sworn statement, it is made the duty of the assessor to make a statement from the best infor- mation which he can obtain. By Section 33 of the Revenue Act, it is provided that such statement shall be returned by the Assessor to the County Clerk and by him forwarded to the State Auditor, and it is made the duty of the Auditor annually, on the meeting of the Board of Equalization, to lay before the Board the statements required to be returned to him, ' ' and such Board shall value and assess the capital stock of such companies or associations in the manner provided in this Act." 4. I have quoted the pertinent provisions of the statute so that every member of the Association will be able to readily grasp the statutory requirements. Such a return, either by the corporation itself or by the local assessor, is not an essential prerequisite to the valuation of the capital stock by the State Board. Such valuation by the State Board, where there has been a failure to make such list or return by the cor- poration as well as by the local assessor, will not ren- der the tax levied on the capital stock by the State Board of Equalization void. This has been expressly decided in Pacific Hotel Company v. Lieb, 83 111., 602. That decision has been approved in later cases, such as Distilling and Cattle Feeding Co. v. People, 161 111., 101; 5. The law providing for the assessment of capital stock of corporations does not apply to corporations created under the laws of other states, that is to say, foreign corporations. 87 6. The law does not apply to "companies and as- sociations organised for purely manufacturing pur- poses." 7. Whether a corporation is one "organized for purely manufacturing purposes" will depend upon the charter of the corporation. The Supreme Court said, in Distilling & Cattle Feeding Co. v. People, 161 111., 101, 103, that "it goes without saying that the purpose for which a corporation is organised must be ascer- tained by reference to the terms of its charter. ' ' And, again, in Evanston Electric Illuminating Co. v. Kochersperger,, 175 111., 26, the court said: "In order to settle this question, resort must be had to its charter." And the court approvingly quotes the language just cited in the prior decision in Distilling & Cattle Feed- ing Co. v. People. In other words, the court will look not to the actual business transacted by a corporation, but to the power given to the corporation by its char- ter. If the charter covers more than a "purely manu- facturing purpose," the company will not come within the exemption here under discussion. In the Evans- ton Electric Illuminating Company case, the charter authorized the company "to furnish light, heat and power for public and private use." It was proved on the hearing that the company ' ' generates the electricity which it furnishes." The court, however, said that under the charter power, regardless of the business transacted by the company, it was not one organized for "a manufacturing purpose." The obligations of your members, therefore, in the premises, will depend upon the language of their respective charters. 8. There are several ways to avoid the application of the statute under consideration: (a) By having the law amended. This was in- effectually attempted at the last session of the legislature. (b) By organizing under the laws of another State. 88 (c) By changing the charter so as to make it cover a "purely manufacturing purpose." If the charters of the members bring them within the statute they can readily, under our law, appro- priately amend their charters. 9. The amendment of the charter is the simplest and least expensive course to pursue. A charter reading as follows would cover the case : "The object for which the corporation is formed is to manufacture and sell the so manufactured. ' ' THE LIABILITY OF A CARRIER FOR THE LOSS OF SAMPLE TRUNKS CARRIED AS BAGGAGE. (Becker, Mayer & Co., October 1, 1902.) "Will you kindly procure for us the opinion of our general counsel, Mr. Levy Mayer, as to the liability of a railroad company, where, through the palpable negligence of one of their employes, a line of sample garments left in their care has been damaged, and whether or not they are liable for any damage arising through such negligence? One of our salesmen checked his trunks to a cer- tain point in South Dakota, located on the Chicago & Northwestern Eailway. The station agent left the trunks on the platform and during a severe storm quite a few of the samples were damaged. We will be glad to have Mr. Mayer's opinion as to our standing in court in a case of this nature." The liability of a carrier for baggage entrusted to its care is that of an insurer and it is liable for any loss or injury to such baggage unless the loss or injury was caused by the act of God or the public enemy, or by inevitable accident. The liability of the carrier for baggage is limited to such articles as are necessary to the comfort or use of the passenger dur- ing his journey. Samples carried by a passenger in his trunk, with a view to enabling him to make sales of goods, are more properly mere merchandise and are not to be included within the term "baggage." The fact that they are necessary to the object of the passen- ger's journey does not affect the rule. See the following cases: Michigan Central R. R. v. Carroiv, 73 111., 348. Hawkins v. Hoffman, 6 Hill. (N. Y.), 586. Penn. Co. v. Miller, 35 Ohio St., 541. 3 Ency. of Law (2d Ed.), p. 533, and cases cited. If, however, the carrier, with a full knowledge of the character of the trunk, accepts it and undertakes to carry it as baggage, it is liable to the same extent as if it were baggage. Knowledge may in some cases be presumed where from the outward appearance of the package, its con- tents are obvious. The carrier is not bound, however, to make inquiries. Jacobs v. Suit, 33 Fed., 412. Mich. Cent. R. R. v. Carrow, 73 111., 348. 3 Ency. of Law (2d Ed.), pp. 533, 540, 541. The statement of facts submitted is silent upon the material question as to whether the railroad company undertook to carry the trunk with knowledge, actual or constructive, that it contained sample garments. If the company had such knowledge it is, in my opinion, liable. If it did not have such knowledge, then its liability is that of a "depositary" as distinguished from a "carrier." As a depositary, it is liable only for "gross" negligence, which has been defined to be the absence or want of slight care or diligence. What constitutes gross negligence will depend in each case upon a variety of circumstances, such as the occu- pation, habits and general character of the depositary upon the value and character of the thing deposited, and upon local custom and usage. It is in general a question of fact to be determined by a jury upon all the evidence in the case. Cases, supra. Gray v. Merriam, 148 111., 179. Shelly v. Kahn, 17 111., 170. 3 Encyclopedia (2d Ed.), p. 542. 90 5 Encyclopedia (2d Ed.), p. 286. Mich. Cent. R. R. Co. v. Carrow, 73 111., 348. Smith v. N. & L. Railroad, 27 N. H., 364. Transportation Co. v. Story, 50 Md., 4. WHETHER CORPORATIONS ORGANIZED FOR PURELY MANU- FACTURING PURPOSES," BUT WHICH CARRIES ON OTHER BUSINESS NOT AUTHORIZED BY ITS CHARTER, IS SUBJECT TO ASSESSMENT ON ITS CAPITAL STOCK. (Illinois Manufacturers' Association, October 11, 1902.) "Referring to the subject of taxation on capital stock of Illinois corporations : We understand from opinions heretofore given by the counsel of your Association that the capital stock of Illinois corporations, except those engaged in manufacturing, etc., is subject to taxation by the State Board of Equalization. We also under- stand that the wording of the charter determines whether a corporation is to be classed as exclu- sively 'manufacturing' or not. We are engaged in manufacturing and selling of the manufactured product. In addition to that we are doing a gen- eral jobbing business. We should like to ascer- tain whether it would be perfectly safe for a cor- poration such as ours to amend its charter so that it would be classed as an exclusively manufactur- ing corporation, continuing, however, to deal in articles not manufactured by it, extend credit to customers, etc." In the opinions I have heretofore rendered I have pointed out what the Supreme Court has said on the subject. Thus, in Distilling & Cattle Feeding Co. v. People, 161 111., 101, the court said on p. 103 : ' ' It goes without saying, that the purpose for which a corporation is organized, must be ascer- tained by reference to the terms of its charter ; and it seems to be clear, upon a careful examination of the terms of clause 2 of the charter as above 91 quoted, that it was not organized for purely manu- facturing purposes." In that case the company was forjned to "carry on a general business of distilling, redis- tilling and rectifying high wines, alcohol, spirits, gins and whiskeys of every kind and description, and deal in the same * * * also to engage in feed- ing and dealing in cattle and other livestock. ' ' The court held that "feeding and dealing in cattle and other livestock" is not manufacturing, and there- fore, held that the capital stock of the company was subject to taxation by the State Board of Equalization. Similar language is repeated in Evanston Electric Illuminating Co. v. Kochsperger et al., 175 111., 26. The Supreme Court has not, however, had before it the converse of the proposition, viz.: If a corpora- tion is organized purely for manufacturing purposes but engages in business of a kind which it not purely manufacturing, will its capital stock be amenable to taxation by the State Board? If it be the law as said in Distilling & Cattle Feeding Co. v. People, that "It goes without saying that the purpose for which a corporation is organized must be ascer- tained by reference to its charter," then in my opinion it ought to follow logically that the capital stock of a corporation which does a busi- ness not "purely manufacturing" is not subject to taxation by the State Board, if the charter of the com- pany limits its business to one which is ' ' purely manu- facturing." The fact that an existing corporation by its charter is authorized to do, and actually does a business not purely manufacturing, but amends its charter to a purely manufacturing purpose, and yet continues to transact a business which is not purely manufacturing, may be possibly construed by the court to be a fraud upon the law and to be no defense to a tax assessed by the State Board. There is, however, a more serious question to be considered in this connection, and it is this : If a corporation organized for purely manufacturing pur- poses should carry on a business not authorized by 92 its charter, the conduct of such business would be ultra vires, and contracts involving ultr ( a vires busi- ness can not as a general rule be enforced in the courts, if the defense of ultra vires be interposed. There is also a further possibility, and it is this: If a corporation should thus carry on an ultra vires business, the attorney-general would have the right, as was done in People v. Pullman Palace Car Co., 175 111., 125, to prevent by an appropriate remedy, the usurpation of corporate powers. It is true that the public authorities are not so ready to interfere with mere private corporations as with institutions of the size and character of the Pullman Palace Car Co. The whole matter, so far as I can read it, in as well as between the lines of the communication to which this is a reply, can be obviated, as the law now stands, by incorporating in another state and doing business here, or by dividing up the business, making of one part of it, which is purely manufacturing, a distinct corporation, and of the other part of it, which is not purely manufacturing, a separate corporation with an insignificant capital stock. But there cannot be organ- ized in this state two corporations having the same or similar names. Therefore, if it be determined to re- tain precisely the same name, one of the two corpora- tions to which I have referred can be legally incor- porated in another state. By thus dividing up the business those owning stock in one corporation can hold the same proposition of stock in the second cor- poration. Under the law of this state one corporation is not permitted to acquire and own, as an ordinary in- vestment, stock of another corporation. Under the laws of some states, like New Jersey, corporations there organized have the legal right to own stock in other New Jersey corporations, or in corporations or- ganized elsewhere. This opinion has grown to some length, but I have endeavored to anticipate some queries which, if they have not already arisen, are likely to arise in the minds of those who have requested this opinion. 93 THE FOREIGN CORPORATION LAW OF KANSAS AND WHETHER MAKING OF CONSIGNMENT CONTRACTS CONSTITUTES DO- ING BUSINESS IN KANSAS. (Illinois Manufacturers' Association, October 11, 1902.) I have your favor, enclosing communication from one of your members, in which my opinion is asked as to whether or not said member is subject to the foreign corporation law of Kansas. The facts stated are as follows : "We maintain no offices or stores in Kansas, but we are doing business there, part of which consists of sales made to dealers, the orders being received either through traveling men or by corre- spondence, the goods being shipped from here and payment remitted here. ' ' To other dealers we consign pianos and organs under a contract providing that the consignee is to have the exclusive agency for the sale of our pianos and organs for a given city or county. The agreement with consignee provides that' he is to sell the instruments ordered within sixty days from shipment and remit for same cash or ap- proved customers' contracts, which are to be sub- ject to our approval; the customers' contract for the pianos or organs sold to be secured by the same and to be made on blanks furnished by us and guaranteed by the consignee, and payable usually at our office in Chicago. The contract with consignee provides as to the basis on which goods not sold are to be returned and credited; that the consignee is to insure the goods, the policies to be payable to us in case of loss, and that the con- signee is to pay all taxes while the goods are in his possession. The remuneration of the consignee is to consist of such sums as he can sell the pianos or organs for in excess of the invoice price. The contract with the consignee provides that it is not to be regarded as executed until accepted by 94 us at our office in Chicago, and is to be interpreted as made within the State of Illinois. "As to the goods which are sold through the traveler, or by mail, we understand that this class of business is interstate commerce, but we would like to know the opinion of your attorney as to whether the consigning of pianos and organs as above described constitutes interstate commerce, or whether it would be construed as doing busi- ness in the state." I have examined the contract referred to, and this opinion is based upon the above statement, also upon the provisions peculiar to the contract submitted. 1. The taking of orders by traveling salesmen, sub- ject to the approval of the home office, or by mail, con- stitutes interstate commerce and is in my opinion not * * doing business ' ' in Kansas. 2. The question whether or not the sale of goods through a consignee, in the method above stated, and specified in the contract, is "doing business" in Kan- sas, or whether it constitutes "interstate commerce" is referred to in my opinions of July 19, 1901, to Dar- ling & Co., and of October 8, 1901, to the Weber Wagon Co. The question is one involved in doubt and the decisions of the courts are conflicting, as will appear from the cases cited in those opinions. 3. Now, as to credit sales, the contracts between the consignee and the company, (being the consign- ment contracts) and between the company and its cus- tomers (being the credit sales) being accepted here, are Illinois contracts and in my opinion do not consti- tute ' l doing business ' ' in Kansas. 4. As to the cash sales, if the cash sales made by the consignees are made in the name and on behalf of the company, I am of the opinion that such sales would constitute "doing business" in Kansas, and subject the company to the operation of the foreign corpora- tion law of that State. Whether the sales made by the consignee in the name of the consignee, constitute doing business, is a more difficult question. By the terms of the contract 95 the title to the goods remains in the consignor and the consignee is made the agent of the consignor for the sale of the goods. The consignor is the undisclosed principal. In view of the strong tendency of the courts to enforce the so-called foreign corporation laws, I am inclined to the opinion that the cash sales, to which I am now referring, would be held by the courts to constitute "doing business" in Kansas. NOTE: See opinion of March 17, 1904, to Wilcox Mfg. Co. Ed. LIABILITY OF A CARRIER FOR DELAYING GOODS IN TRANSIT. (Illinois Manufacturers' Association, October 28, 1902.) "The Traffic Committee would like to obtain a ruling from the General Counsel of this Associa- tion as to the right of a shipper or receiver of freight to collect damages from a railroad com- pany when goods have been delayed in transit an unreasonable length of time. It is getting to be a common practice that contracts can only be made on a specified limit to finish them; and if goods are delayed in transit, it frequently causes a heavy loss to the contractor. This is a question which is coming up more strongly all the time. ' ' It is the duty of the carrier to transport goods de- livered to it for transportation with all convenient dis- patch, i. e., within a reasonable time. What is a rea- sonable time must be determined by the length of the journey, the mode of conveyance, the weather, the nature of the goods, and the amount of the carrier's business at the particular time. The question is al- ways one of fact, to be determined from all the facts and circumstances of the particular case. If the delay is unreasonable and is not justified by a sufficient legal excuse, the carrier is liable for the damages caused by such delay. It is a sufficient legal excuse if the delay is caused by an unusual, temporary influx of freight, or the road is impassable by reason of the elements, or a collision, not the fault of the 96 carrier or its employes. It is impossible to lay down a general rule applicable to all cases. Every case must depend on its own circumstances. The above sugges- tions, however, will indicate the trend of the decisions. There are many cases in which the carrier has been held liable. See: Hutchinson on Carriers, Sec. 328, et seq. Pitts, etc., R. R. Co. v. Hazen, 84 111., 36. I. C. R. R. Co. v. McClellan, 54 111., 58. R. R. Co. v. Roe, 18 111., 488. R. R. Co. v. Day, 20 111., 375. C. & A. R. R. Co. v. Simms, 18 111. App., 68. R. R. Co. v. Jungten, 10 111. App., 295. NOTE: For liability of carrier for delay on lines of connecting carrier, see opinion of October 30, 1903, to Austin Mfg. Co. Ed. THE STATE FACTORY INSPECTION LAW OF MISSOURI. (Parlin & Orendorff Co., Nov. 1, 1902.) I have your favor enclosing communication from Parlin & Orendorff Company, containing notice to that company from the State Factory Inspector of Mis- souri. The notice requests a compliance with Sections 6435-6406 of the Revised Statutes of Missouri in refer- ence to placing guards around elevators and erecting fire escapes upon their factory. The Parlin & Oren- dorff Company says: "Enclosed find notice from the State Factory Inspector of the State of Missouri, as issued to our Kansas City House. Will you have the kind- ness to advise us as to the law in question, and whether or not it is necessary for us to comply with the same. Also advise us if the fire escape law in this State was not declared unconstitu- tional. ' ' I have examined the law in question. Section 6435 provides : "Hatchways, Etc., to be Guarded. The open- ings of all hatchways, elevators and wellholes upon 97 every floor of every manufacturing mechanical or mercantile or public building in this State, shall be protected by good and sufficient trapdoors or self- closing hatches or safety catches, or strong guard- rails at least three feet high, and all due diligence shall be used to keep such trap-doors closed at all times, except when in actual use by the occu- pant of the building having use and control of the same." (Laws of 1891, p. 159.) Section 6436 provides: "Fire Escapes. All manufacturing, mechanical, mercantile or other establishments in this State, of two or more stories in height, in which twenty or more persons are employed above the first floor thereof, shall be provided with at least one or more outside iron fire escapes. For every twenty per- sons employed on every floor above the second floor of such establishment, there shall be one rope or portable fire escape, and each story shall be amply supplied with means for extinguishing fires." (Laws of 1891, p. 159.) The tendency of the courts all over the country is to uphold such laws. The law in question does not, in my opinion, violate any of the provisions of the Federal Constitution. I am inclined to think that it does not violate the Missouri Constitution, but do not express any fixed opinion on the question. It is one that I would prefer should be submitted to a Missouri lawyer, who is familiar not only with th$ decisions of its highest courts upon "Missouri Constitution" ques- tions, but also with the "local atmosphere," which is frequently of much importance. The fire escape law of Illinois, passed May 27, 1897, (Session Laws of 1897, p. 222) was declared constitu- tional in Arms v. Ayer, 192 111., 601, decided Oct. 24, 1901. 98 THE BIGHT OF THE RAILROAD COMPANIES TO CHARGE LESS THAN CAR LOAD RATES ON GOODS BELONGING TO MORE THAN ONE OWNER WHICH ARE COMBINED INTO A CAR- LOAD. (Skandia Furniture Co., Nov. 6, 1902.) "We wish that you would submit to Mr. Mayer for careful consideration and early reply the fol- lowing questions, which are wanted for our in- formation: Do the Eastern or Official Classifica- tion, which permits of new furniture not otherwise specified to go as second class in car lots, allow of us loading cars containing goods for more than one customer, the car, of course, being consigned to either a customer interested in the car or to a Transfer Co., and who unload and distribute goods? Can we include in car we load of goods of our manufacture and like goods made by our neighbors, all of which are for one customer or are for several customers as the case might be? Can we employ, or can two or three factories em- ploy a drayman or a Transfer Co. to load cars, in which one or two customers at the other end are interested, the car, of course, being consigned to one consignee! Have the Joint Kate Inspection Bureau of Chicago the right to inspect cars which we load and are unloaded at the other end by our representatives and to set up such cars if found to contain goods for more than one customer and make rate as if goods had gone local? "As we interpret the Classification, we are en- titled to the use of the car rate, if the cars are loaded with New furniture, such as we manufac- ture, and question of one-half the car being for one customer, the other half for another customer should not debar us from this car service and the usual car rates of freight. "The Ey. Co.'s make this special car rate for the reason that they are saved the trouble of re- ceipting for and handling goods at this end and 99 the other end, which would be the case if shipped local. "Does the Inter-State Commerce Act cover any part of this question, or is there any law that covers the point involved? Have we a righteous claim against the Ry. Co. on such cars as they have inspected and they did set up, and can we legally collect from them overcharges or differ- ence between car rates and less than car rates? We have for some time combined less than car shipments as above described, and sent them in full cars to the large Eastern cities, cars being loaded by ourselves and unloaded by some one at the other end, who are paid for this service. "The Joint Inspection Bureau have lately held up these cars and set them up to less than car rates, entailing a very large loss to us." I have not before me a copy of the so-called East- ern or Official Classification referred to in the letter of the Skandia Co. From the facts stated in this let- ter, however, I take it that the question upon which my opinion is desired is whether or not a railroad company has the right to charge a "less than car load" rate upon a car load of goods shipped by one consignor to one consignee because of the fact that such goods belong to more than one owner, or are in fact intended for more than one customer. Section 2 of the Interstate Commerce Act provides that a common carrier shall not be entitled to a greater or less compensation for the transportation of any freight than it charges or receives from any other person ' ' for doing him or them a like contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances." The ques- tion, therefore, to be determined is whether or not a car load shipment, made up of goods belonging to different owners, stands upon the same footing and constitutes "a like contemporaneous service in the transportation of a like kind of traffic under substan- tially similar circumstances," as a carload shipment belonging to one owner. The carrier has the right to classify freight and charge a different rate for each class. Such classifi- cation is not based solely upon or determined by the cost or value of the carrier's service, or the value to the owner of the property carried, but every circum- stance which can fairly bear upon the question must be taken into consideration in making the classifica- tion or fixing the rate. Are there any conditions ex- isting in the case of a shipment of a car load of goods belonging to several owners which do not exist where such goods belong to but one owner, and if so, do such conditions furnish a sufficient basis for a discrimi- nation in respect to rates? Irrespective of contract between the carrier and the shipper, it is the duty of the carrier to safely carry and deliver, and for any breach of this duty, or for any loss or injury to the goods, an action may be maintained by the owner. The carrier might, there- fore, be subjected to as many actions as there are owners of goods in a car, and such actions might be in as many different jurisdictions. In the case of Lundquist v. Grand Trunk Railway Co., 1 the identical question here under consideration came before Judge Kohlsaat, of the United States Circuit Court for the Northern District of Illinois. The bill in that case was filed in 1901 by a firm engaged in the business of shipping or forwarding. They had a place of business where they received the goods of parties desiring to have them handled by the com- plainants, who, upon receipt of sufficient goods from various owners to make a car load, consigned them in their own name to their own consignee. It was held by Judge Kohlsaat that the Railroad Company was entitled to charge complainants a "less than carload'' rate for the reason that the carload was made up of goods of more than one owner, and the Railroad Com- 1. See 121 Fed., 915. Ed. NOTE: See, also, on same subject opinion of Dec. 10, 1906, to 111. Mfrs. Ass'n and opinion of April 20, 1907, to S. Oppenheimer & Co. (Opin. 1907.) Ed. 101 pany was therefore subject to the contingent liability of numerous actions. Outside of this decision I cannot find that the identical question has ever been passed upon by the courts in this country. Whether the decision of Judge Kohlsaat will be followed, it is impossible to antici- pate. Much can be said upon both sides of this ques- tion, because it is by no means free from doubt, but with the decision unreversed, there is a ruling which is likely to be followed in subsequent cases, at least in the United States Circuit Courts. The inquiry is of considerable importance, and might well repay the procurement of a final decision in a Federal Court of review, in some properly prepared test case. It will be observed that these remarks apply to inter-state commerce, no question having been put about intra or local state charges. THE FOKEIGN COEPOEATION LAW OF TEXAS. (Joseph T. Ryerson & Son, December 9, 1902.) "As members of your association, we desire to make inquiry to ascertain what it is necessary for us to do in order to legally do business in the State of Texas, i. e., if there are any regulations or restrictions on an Illinois corporation who are selling material within the State of Texas; we wish to be advised." I assume from the above statement that the method of selling material which is being pursued by the com- pany is such as to subject it to the operation of the foreign corporation laws of Texas. Sec. 56, Art. 642, Chap. II (Laws of 1897, Ch. 130) of the Texas Statute provides that foreign corpora- tions obtaining permits to do business in Texas shall show to the satisfaction of the Secretary of State that fifty per cent, of their authorized capital has been subscribed, and at least ten per cent, of the authorized capital stock has been paid in before such permit is issued. 102 Art. 747, Chap. 17, (Laws of 1897, Ch. 119) pro- vides that every foreign corporation desiring to do business in Texas shall file with the Secretary of State a certified copy of its charter and thereupon the Secretary of State will issue a permit. Art. 746 provides that no foreign corporation shall institute suit upon any contract unless at the time the contract was made such corporation had filed its char- ter as aforesaid. Art. 2434 provides for the payment of fees as fol- lows: "Each foreign corporation shall pay fees as follows : If its capital stock be one hundred thou- sand dollars or less, a fee of twenty-five dollars to procure a permit; if its capital stock be more than one hundred thousand dollars, and less than five hundred thousand dollars, it shall pay a fee of fifty dollars ; if its capital stock be five hundred thousand dollars, and less than one million dol- lars, it shall pay a fee of one hundred dollars; if its capital stock exceed one million dollars, it shall pay a fee of two hundred dollars." In addition, a foreign corporation must pay an an- nual franchise tax of $25, when the authorized capital is $25,000 or less; $100, when the authorized capital is more than $25,000 and not exceeding $100,000 and in addition, $1 on every $10,000 of such stock in ex- cess of $100,000, and not exceeding $1,000,000 and a further additional tax of $1 for every $100,000 in ex- cess of $1,000,000. The tax is payable to the Secretary of State on May 1st of each year, the first payment being payable when the corporation commences busi- ness in the State. THE FOREIGN CORPORATION LAW OF NEW YORK AND WHETHER SALES ON COMMISSION CONSTITUTE DOING BUSINESS THERE. (Chas. W. Shonk Co., December 13, 1902.) "Supplementing our letter of Nov. 19th, we enclose herewith schedule from the Comptroller's 103 office of the State of New York, which they desire us to fill out and return. When they sent us this statement we wrote them a letter, copy of which we enclose herewith. Their reply to our letter was that we should fill out the blank and leave it to them to decide whether we were to be taxed. You will note in our letter to them of Nov. 10th we have plainly stated that we did not manufac- ture anything in the State of New York, but that we did dispose of goods there through our vari- ous solicitors, the principal one of which is lo- cated in New York City." In the letter to the State Comptroller, the company states : "We are a corporation of the State of Illi- nois. We manufacture everything here. We do not do any business in New York State other than what is sent to us by solicitors here and there, who sell our signs on a commission basis. Our New York City agent maintains an office in the Postal Telegraph Building. We have no assets there other than a limited number of samples of signs. ' ' I assume that the company keeps no stock of goods in New York except the samples referred to, which are merely kept for purposes of exhibition; that no sales or contracts are made there; that all the New York orders are taken subject to the approval of the home office here, where the orders are filled; that the goods sold on a commission basis are sold in the same manner that is, subject to the approval of the home office here, from where the goods are shipped, and that all goods are manufactured here and are shipped upon orders received. Under this state of facts I am of the opinion that the company is not engaged in business in New York and need not make the report referred to. If my assumption as to the method of doing busi- ness in New York is not correct, upon receipt of addi- tional information, I will advise further. 104 THE EIGHT OF AN EMPLOYE TO ASSIGN HIS WAGES. (Simonds Manufacturing Company, Dec. 16, 1902.) I have your favor enclosing communication from Simonds Mfg. Co., together with copy of a proposed law which it is intended to submit to the Illinois legis- lature for passage. The law provides: "Every assignment, hypothecation, sale or transfer of the unearned wages or salary of any laborer, mechanic, clerk or employe shall be void; and payment of such wages or salary earned after the date of such attempted assignment, hypothe- cation, sale or transfer may lawfully be made by the person, firm, company or corporation from whom such wages or salary shall be due and pay- able, notwithstanding such previous assignment, hypothecation, sale or transfer." The law attempts to deprive persons of the right to assign property to be acquired, and thus takes away from that property one of its most valuable char- acteristics. The law imposes a limitation upon the freedom of contract and a restriction upon the pay- ment by employes of their just debts. The assign- ment of unearned wages, based upon a subsisting con- tract, has frequently been recognized by the courts. The right to labor and to earn wages is a property right equally so with their right to acquire and own tangible property. The right to dispose of one's labor and of its fruits accruing under an existing contract is guaranteed by both State and Federal Con- stitution. The power of the legislature to limit such right cannot be arbitrarily exercised. The proposed law, as drafted, would in my opinion be an unlawful restriction upon the right of the citizen to control his own property, and in my opinion would probably be held unconstitutional by the courts. 105 THE FOREIGN CORPORATION LAW OP OHIO. (Sattley Manufacturing Company, Dec, 16, 1902.) "We have been asked to file our annual report as a foreign corporation with the Secretary of State at Columbus, Ohio. Some of this informa- tion asked for we do not consider pertinent, and do not wish to give it. Can you tell us whether it is necessary to make the affidavit and report asked for?" I have examined the law in question ( Sessions Laws of Ohio, 1902, p. 125). Its provisions are referred to in an opinion rendered the Association September 27, 1902, at the request of the American Straw Board Co. If the Sattley Co. is doing business in Ohio, within the established meaning of that phrase, then it is subject to the law in question. A foreign corporation has no absolute right to do business in a state other than the state of its incorporation, but can only do so by virtue of the comity of the foreign state. The foreign state, therefore, has the right to impose con- ditions and limitations upon the foreign corporation doing business in that state. The law in question, in my opinion, imposes valid regulations upon corpora- tions coming within its provisions and is a valid and constitutional law. THE BONUS ACT O/ PENNSYLVANIA. (Oliver Typewriter Co., Dec. 24, 1902.) I have your favor enclosing communication from Oliver Typewriter Co. in answer to mine of the 13th inst. That company asks whether it is necessary to answer certain questions contained in the bonus re- port to the State of Pennsylvania, a copy of which re- port is enclosed. The report in question is required under the provisions of the so-called "bonus" law of Pennsylvania, passed May 8, 1901. On Oct. 7, 1901, I rendered an opinion to the Association that that law 106 is, in my opinion constitutional. The law in question therefore imposes valid conditions upon such compa- nies as come within its scope and the information called for by the law should therefore be furnished by such corporation. I have heretofore, on January 15, 1902, rendered an opinion to the Association as to the method as to de- termining "the amount of capital wholly employed in the State of Pennsylvania." Of course the difficulty in giving the information would present no legal rea- son for refusing to give it. THE FOREIGN CORPORATION LAW OF TEXAS. (Palmer, Fuller & Co., Dec. 29, 1902.) "We are in receipt of yours enclosing an opin- ion of Mr. Levy Mayer, General Counsel, in refer- ence to the Foreign Corporation Law of Texas. We understand, and we would like to know if we are right or not in our understanding, that the foreign corporation law of Texas does not affect any one who is simply selling goods in the State of Texas through traveling representatives, or even through resident representatives, so long as the goods are shipped from Chicago, billed from Chicago, charged from Chicago and are payable in Chicago. In other words, we have no office in Texas, have no stock in Texas and ship from Chi- cago and collect from Chicago, simply doing business in an inter-state way, as we understand it, but we would like to be quite sure on this point. We notice in other opinions rendered by Mr. Mayer that to do business, as we are doing it in Texas, in other states, is really inter-state busi- ness and that we are not amenable to the state cor- poration laws of other states in the union, but still we do not recollect seeing anything on the subject of the Texas corporation law excepting this particular opinion to which we make refer- ence. 107 Kindly let us know if we are right in assum- ing that we are not in any way amenable to the Texas state law, taking into account that we have no office and carry no stock in Texas, and that we do all business from Chicago, simply selling goods through resident and traveling representa- tives in that State." I assume that the orders taken by the traveling or resident salesmen in Texas are made subject to the approval of the home office here. Under this state of facts, I am of the opinion that the business transacted by the company in Texas con- stitutes interstate commerce, and the company is there- fore under no obligation to comply with the Texas statutes in relation to foreign corporations. THE RIGHT OF A RAILROAD COMPANY TO CHARGE STORAGE ON FREIGHT AND DUTY TO NOTIFY CONSIGNEES OF AR- RIVAL OF FREIGHT. (Boos Mfg. Co., Dec. 30, 1902.) "We wish to be advised whether counsel for the association has passed upon the subject of storage charges, which under a recent rule are made by the various railroad lines entering Chi- cago on small freight shipments, if not removed from their freight houses within a stipulated time. We have a number of times been victimized under this new rule but have apparently no recourse except to pay. The question, it appears, depends largely upon the obligation of the railroad companies to no- tify consignees of the arrival of freight. We believe it is claimed on their side that no such obligation exists. If this is true, we cannot un- derstand how consignees are to be made aware of the arrival of freight which when shipped, we will say from New York for instance, is liable to be in transit anywhere from three days to three weeks. 108 In the particular cases we have in mind the company claims to have sent us notice in the usual way by mail; we claim that no such notices were received. The freight in question lay at one of the freight houses here for weeks. In the mean- tune we were in correspondence with the shipper, wanting to know what had become of the goods, until they were finally discovered by a mere acci- dent and before we could get possession, we were obliged to pay an exorbitant rate for four weeks' storage. As there are several concerns in Chi- cago of a name similar to ours, and as clerks in railroad offices are notoriously careless in writing addresses, leaving out numbers and streets in most cases and misspelling names in others, it is more than likely that such notices, if they were sent, were miscarried. We have trouble of this sort continually. Aside from the obligation to notify consignee, it looks reasonable that railroad lines entering Chicago should extend to their patrons the same facilities for doing business that is done by these same lines in other cities. We have in mind, for instance, a railroad company that is building a warehouse in Minneapolis for the accommodation of merchants, allowing them to store goods for practically an indefinite time without cost, and this same company enforces the new rule rig- idly in Chicago. Why this discrimination against Chicago?" The rule is well settled in this state that in the absence of a special agreement, a railroad company is under no obligation to notify the consignee of the arrival of freight. The duty of the railroad company, as a carrier, ceases upon the storage of the goods in a safe and suitable warehouse, and the company is liable thereafter only as a warehouseman. The liability of a carrier is that of an insurer, while the warehouse- man is bound only to use reasonable care and dili- gence for the preservation of the property. It is the duty of the consignee to receive the goods upon their 109 arrival at their destination, and if he is not ready to do so, it is the duty of the carrier to safely store the goods. R. R. Co. v. Scott, 42 111., 132. R. R. Co. v. Alexander, 20 111., 29. Porter v. R. R. Co., 20 111., 407. Trams. Co. v. Hallack, 64 111., 284. Cah v. R. R. Co., 71 111., 96. After the delivery of the goods at the warehouse, the company has the right to charge a reasonable com- pensation for its services, and it may retain the goods until the charges have been paid. R. R. Co. v. Alexander, 20 111., 24. The rule that the carrier is under no obligation to give notice to the consignee of the arrival of freight, does not apply where there is a well established cus- tom on the part of the railroad company to give notice to the consignee upon the arrival of freight. The cus- tom, however, must be generally known and well es- tablished and uniformly acquiesced in for such a length of time that it must be considered that the par- ties contracted with reference to it, and made it a part of their contract. The question as to what are " reasonable" charges and as to whether or not the railroad company may charge storage in one locality and not in another, de- pends upon the facts and circumstances existing in each particular case. The railroad company must treat all persons similarly situated without discrimina- tion. Conditions may exist, however, in one locality, which are absent in another, which may furnish a basis for discrimination as to charges or facilities. NOTE: For later opinion on this same subject, see opinion of May 31, 1907, in answer to query of Federal Electric Company (opin. 1907). Ed. 110 RIGHT OF SHIPPERS TO COMBINE THEIR SHIPMENTS TO OB- TAIN CARLOAD RATES. (Wilder & Co., December 31, 1902.) "Our firm is very much interested in the opin- ion of Mr. Levy Mayer in regard to several ship- pers combining in consigning a carload to one destination in order to secure carload rates. On the last page of Mr. Mayer's reply we would call attention to this paragraph: 'Irrespective of contract between the carrier and shipper it is the duty of the carrier to safely carry and deliver, and for any breach of this duty or for any loss by the owner the carrier might, therefore, be subjected to as many actions as there are owners of goods in the car, and such actions might be in as many different jurisdic- tions.' If the B-L is issued to Wilder & Company, of Chicago, for one carload of upper leather and is shipped to Grey, Clark & Engle, of Boston, Mass., how can either the R. E. Co. or the courts go behind Wilder & Company's ownership of this car of goods'? Therefore, how could any suit for damages be brought other than by Wilder & Company against the R. R. Co. ? Inasmuch as this question is of vital import- ance to a large number of shippers in Chicago, and many of whom are members of the Illinois Manufacturers' Association, we would respect- fully request that further action be taken in the matter, as in our judgment it should not rest in favor of the R. R. Cos. upon the sole decision of Judge Kohlsaat." When rendering my former opinion I had in mind the very question now suggested by Wilder & Co., and that was one of the arguments made in the case before Judge Kohlsaat. The railroad companies con- tended that if several individuals combined to obtain a carload rate and their goods are lost or damaged, Ill separate actions could be maintained by each owner irrespective of the fact whether the owners had ex- press contracts with the railroad companies or not; that the apparent shipper would be in fact the agent of the other shippers, and that each principal would have a separate right of action. This reasoning was sustained by Judge Kohlsaat and it was one of the grounds for his defeating the contention of the ship- pers. I am familiar with the facts and the arguments in the case before Judge Kohlsaat, because one of my firm participated as counsel for the shippers. The question whether shippers so combining are entitled to carload rates is not free from doubt, but as I have already indicated there is but one decision squarely upon the subject in this country, and that is the one rendered by Judge Kohlsaat. It may not be inadvisable to make up a test case in another Federal circuit, or before Judge Grosscup, and then carry the matter, if necessary, to the upper court for final review. It is needless to say that to such a case the leading railroad companies in the United States would make practically a united defense, in view of the serious consequences of an adverse de- cision. It is for the Board of Directors of the Associa- tion to determine whether it should take up the matter, and, if so, whether it should take it up at its sole ex- pense or merely by way of co-operation and contribu- tion to those of its members who are particularly in- terested. NOTE: See note to opinion of Nov. 6, 1902, to Skandia Furniture Co. Ed. RIGHT OF LANDLORD TO COLLECT FIRE INSURANCE WHERE TENANT KEEPS GASOLINE ON PREMISES IN VIOLATION OF POLICY. (Illinois Manufacturers' Association, Dec. 31, 1902.) "I am requested by the Board of Directors to ask you in how far our members are affected by 112 the recent decision of the Supreme Court in what is known as the Thuringia Insurance decision. Some of our members are of the impression that the owner of a building will not be paid insur- ance if the tenant has not conformed to his insur- ance policy, in the event the building burns." The decision in question is that of Thuringia Insur- ance Co. v. Norwaysz, decided by the Appellate Court for this district December 16, 1902, (104 111. App., 390), the opinion being rendered by Judge Freeman. In that case, the plaintiff procured from the defendant insurance company, a policy of insurance on a house of which he was the owner. The policy contained a clause providing that the keeping of gasoline and other similar articles on the premises, rendered the policy void. The premises in question were occupied by a tenant of the plaintiff. The tenant, without the knowledge of the landlord, kept a five-gallon can of gasoline on the premises. A fire occurred, and an ac- tion was instituted by the owner against the insur- ance company to recover for the loss. The court held that the act of the tenant avoided the policy, and that the plaintiff was bound by the acts of his tenant, and therefore could not recover. NOTE: The decision of the Appellate Court was afterwards affirmed by the Supreme Court of Illinois. See 204 111., 334. Ed. VALIDITY OF ASSIGNMENT OF UNEARNED WAGES. (U. S. Wind Engine & Pump Co., Dec. 31, 1902.) "Under date of Nov. 24th. we received a letter from Card & Eacutt, of 86 La Salle St., Chicago, as follows: 'This is to give you legal notice that we hold an assignment of wages of C. C. Hamble, an em- ploye of your company. Kindly protect our inter- ests in this matter, and oblige.' This is all the information we have received from them; it came in a registered envelope. We asked Mr. Hamble if he had ever given 113 them an assignment of his wages. He said he did so when he was working for the C. & N. W. E. B. As he has been with us over a year, it must of course be longer even than that since he gave the assignment. Under the circumstances and without any evi- dence, except the bare assertion of these people, are we under obligations to keep back this man's money I ' ' An employe has the undoubted right to assign his unearned wages, but such assignment is not operative unless made under, a subsisting contract of employ- ment. That is to say, if the assignment in question was made by the employe while in the service of a former employer, the assignment is without efficacy. I advise that the company ask to see a copy of the assignment and if from an inspection it appears that it was given while the employe was in the service of another employer, the notice can safely be disre- garded. PROPOSED LAW TO COMPEL LABOR UNIONS TO INCORPORATE. (Illinois Manufacturers' Association, Jan. 2, 1903.) I have your communication asking for an opinion as to the constitutionality of the proposed law to com- pel labor unions to incorporate. A corporation exists as such only by virtue of a grant from the State, and the acceptance of such grant by the persons composing the corporation. No one can be compelled to accept such a grant, nor be com- pelled to become a member of the corporation against his will. To compel labor unions to incorporate is to compel individuals composing the union to become members of a corporation, and to assume the burdens and responsibilities of that relation without their consent, or to prohibit such members from voluntarily associating themselves together for a lawful pur- pose. It is not within the province of the legislature to say to a person, "You cannot join a union unless 114 that union is incorporated." That would be equiva- lent to saying that a person desiring to become a mem- ber of a labor union has to become a member of the corporation, or cease to be a "union" laborer. Such persons would thus be prevented from pursuing a lawful purpose, and would be deprived of a right to assemble together for a purpose not in violation of law. The proposed law would interfere with the lib- erty of the citizen, the right of lawful assembly, and the freedom of contract. This view is supported by authorities. Chancellor Kent, in his Commentaries (Vol. 2, p. 277), says: "It requires the acceptance of a charter to create a corporate body; for the government cannot compel persons to become an incorpo- rated body without their consent, or the consent of at least a major part of them. ' ' In Mason v. Finch, 28 Mich., 282, the Supreme Court of Michigan laid down the law as follows : "It would not be competent for the legislature * * * to compel any person or society to become incorporated without its consent. ' ' In Hampshire v. Franklin, 16 Mass., 76, 87, the Su- preme Court of Massachusetts said : ' ' No man can be compelled by the legislature to become a member of a corporation without his con- sent. ' ' See also Angell & Ames on Corporations (llth Ed.), Sees. 31, 81, 86. Again the proposed law, if applicable only to "labor unions" and not to all other unincorporated associations similarly situated, would probably vio- late the constitutional inhibition against "class legis- lation." There is nothing in the nature of a "labor union" which requires special regulation, which does not equally apply to other unincorporated associa- tions. The members of a labor union are joined together in furtherance of a common enterprise, in which the public at large is not directly interested or concerned. If the public is affected, it is only indi- rectly. Such union, therefore, is not a public asso- 115 / elation in the same sense that it is subject to public regulation and control. I have heretofore, on April 12, 1902, given an opin- ion to the Association that the members of a labor union are legally responsible for damages caused by an illegal boycott. The compulsory incorporation of a labor union would not make the members of the asso- ciation any more responsible than they are at present, except in so far as the corporation might possess prop- erty. The creation of a corporation not for pecuniary profit does not and would not ordinarily create any more financial responsibility than now exists on the part of the individuals who would constitute the cor- poration. For the reasons above stated, I am of the opinion that the proposed law, if enacted, would be unconsti- tutional. Even if the law were constitutional, I do not believe it would accomplish the purpose for which it would be designed. If a law could be devised to compel the formation of such corporations, it would soon be discovered that such corporations could readily avoid accumulating or possessing any property. DUTY OF EXPRESS COMPANIES TO DELIVER PACKAGES WITH- OUT ADDITIONAL COST TO CONSIGNEE. (Cole Mfg. Co., Jan. 8, 1903.) "The different express companies are in the habit of turning a large portion of their express over to Brink's Express Co. for delivery and Brink's charge for delivering from down town to consignee's place of business is often greater than the express company's charge. As an example of this, we have just received a small package weighing four ounces consigned to the writer by the Acme Sign Printing Co., Dayton, Ohio, via Adams Express, charges pre- paid. The Adams Express Co. turned this pack- age over to Brink's. They have delivered the package to us and have collected 20 cents charges for doing so. We receive prepaid express every 118 few days which is turned over to Brink's for delivery to us by the express companies, on which Brink's charges amount to as much as the entire express charges should be. We are located at 3218 So. Western Ave., and it seems to us that all express companies should deliver packages with their own teams; or, if by Brink's, without any additional charge to con- signee at this distance from their downtown offices." In the absence of an express agreement to the con- trary, it is the duty of an express company, to whom goods are delivered for transportation, to make an actual personal delivery to the consignee at his resi- dence or place of business, and in no other way can the express company discharge itself of its respon- sibility as a common carrier, unless performance has been prevented by the act of God or the public enemy. This rule does not apply at unimportant way stations where the business of the express company is so small as not to justify the employment of messen- gers or delivery wagons, and at which place a long continued usage has dispensed with personal delivery and in reference to which usage it must be supposed the parties contracted. In such a case, however, prompt notice must be given to the consignee of the arrival of the goods. If the goods in question were delivered charges pre- paid to the express company, addressed to the Cole Mfg. Co., the consignee, under a contract to deliver the same to that company, it was the duty of the express company to deliver the package at the place of busi- ness of the consignee without any additional charge to the consignee. In such case the express company can- not deliver the goods to a local company and impose the cost of personal delivery upon the consignee. This is the general rule of law applicable. Whether there is some peculiar rule or fact in this case between the express company and the consignor, will depend upon the contractual arrangements between them. I have not been furnished with a copy of such contract, if 117 i one exists, nor with a copy of the bill of lading or express receipt. In support of this opinion, see the following au- thorities : Hutchinson on Carriers, Sees. 379-382. Baldwin v. American Express Co., 23 111., 197. Am. Merchants Express Co. v. Schier, 55 111., 140. American Express Co. v. Baldwin, 26 111., 504. Gulliver v. Adams Express Co., 38 111., 502. Am. Merchants Union Ex. Co. v. Wolf, 79 111., 430. Am. Express Co. v. Wettstein, 28 111. App., 96. 12 Am. & Eng. Ency. of Law (2nd Ed.), p. 553. Unless there are some peculiar facts in this case, not submitted to me, the Cole Mfg. Co. is legally entitled to a return of the twenty cents. NOTE: It has since been held in Bullard v. Express Co., 107 Mich., 695, that an express company may, so long as the public have notice of the custom and the company acts in good faith and with regard to the public requirements, establish limits in a city beyond which its agents cannot be required to go to make delivery; and a person dealing with the company with knowledge that such limits exist cannot compel the company to go beyond them to make a delivery to him. See, also, Vol. II Hutchinson on Carriers, 3 ed., Sec. 717. Ed. I r AS TO WHETHEE SALE OF SAMPLES BY FOREIGN CORPORATION CONSTITUTES INTERSTATE COMMERCE (Illinois Manufacturers' Association, Jan. 20, 1903.) "I have been requested to submit the following statement of facts to you for an opinion: 'We are a corporation: Suppose we have a sample room either in Texas or Colorado, sell goods from there and deliver them from Chicago, and, in ad- dition, semi-annually sell off our samples, to be delivered from the sample room, but the bill for which is rendered from Chicago. Does that 118 bring us under any law of these States, so we would be obliged to pay taxes for doing business in those States!' Kindly advise me as to what reply to make. ' ' If the company in question would eliminate from its method of doing business the semi-annual sale of the samples, I would be of the opinion that it was engaged in interstate commerce, and therefore not subject to the foreign corporation laws of other States. The precise question as to whether the sale of sam- ples in the method above set forth constitutes "doing business" has not, so far as I am aware, ever been passed upon by the courts. Mere single and isolated transactions do not constitute l i doing business ' ' where there is no present intention to carry on business in the future. If, however, periodical sales are made of the samples situated in the foreign State, and it is intended to make such periodical sales in the future, the question is a more difficult one. The transaction is extremely close to the border line which divides interstate commerce from that which is intra-state, or domestic, and in the absence of judicial interpretation I would not regard it as entirely safe to disregard the requirements of the foreign corpo- ration law. If the periodical sale of the samples be dispensed with, the business would be interstate com- merce. If the profits derived from the sale of the samples do not equal the expense of complying with the foreign corporation law, the course to be pursued would seem clear. THE BONUS ACT OF PENNSYLVANIA AND WHETHER IT IS AP- PLICABLE TO CORPORATIONS TAKING ORDERS BY TRAVEL- ING SALESMEN SUBJECT TO THE APPROVAL OF THE HOME OFFICE. (Steele-Wedeles Co., Jan. 20, 1903.) "We are in receipt to-day of the enclosed let- ter from the Auditor General of Pennsylvania, which is in answer to ours of the 17th ult. Will you kindly advise us if in your opinion we can 119 make such an affidavit as we are requested to make therein? Please understand that we do not maintain an office or a branch store in Pennsyl- vania. Our traveling salesman occasionally takes an order there, which is approved by our Chiago office, and the goods are shipped from here." The affidavit demanded by the Secretary of State is provided for in the so-called Bonus Act of Penn- sylvania, passed May 8, 1901. On October 7, 1901, I gave an opinion to your Association, at the request of The N. K. Fairbank Company, to the effect that that Act was constitutional. The Act in question im- poses a tax upon the amount of property of all foreign corporations located or employed wholly within the State of Pennsylvania, i. e., upon the property which the corporation owns or possesses in Pennsylvania for the purpose of carrying on its business. The Act, however, only applies to such corporations as are engaged in business within the limits of the State of Pennsylvania, and cannot be held to apply to such corporations as are engaged solely in interstate commerce. From the statement of Steele-Wedeles Co. I take it that the only business transacted by that company in Pennsylvania is transacted through the medium of traveling salesmen, who take orders subject to the approval of the home office in Chicago, where the or- ders are filled and the goods shipped. If this assump- tion is correct, I am of the opinion that the Steele- Wedeles Co. is engaged in interstate commerce and therefore is under no obligation to make the affidavit in question. EFFECT OF CANCELLATION OF CHAETEB OF ILLINOIS CORPO- RATION FOR FAILURE TO FILE ANNUAL REPORT. (Illinois Manufacturers' Association, March 23, 1903.) "Where a charter has been canceled under the Act Approved April 21, 1899, for failure to make report, what procedure would you advise? 120 Is the question of constitutionality now before the Supreme Court for decision? How does the forfeiture of the charter affect the standing of a corporation if called to appear in court to collect accounts or defend its rights? Has the Secretary of State offered any oppor- tunity for delayed reports to be received to avoid the forfeiture?" The matter is covered by my opinions to the Asso- ciation under dates of October 22, 1900, November 6, 1901, and September 19, 1902. In those opinions it was stated that I deemed it beyond the powers of the Sec- retary of State, without judicial proceedings, to cancel the charter of a corporation for a failure to file an annual report. The attempted cancellation of a charter of any cor- poration by the Secretary of State, I think, is of no effect and would not prevent such corporation from suing or defending in the courts. The law was amended May 10, 1901, in force July 1, 1901 (Session Laws of 1901, p. 115). Section 7 of the law, as amended, provides : "That any corporation which is pursuing an active business under its charter, failing to make said report at the time provided by law may, at any time, within one year from such default, be reinstated upon the records in the office of the Secretary of State, upon the payment of a fee in the sum of twenty dollars for such reinstatement and filing in said office an affidavit stating all the facts required in section three (two) of this Act, and in addition thereto, the fact that it was at the time of such default and still is engaged in active business under its charter." In view of the fact that the fee is only one dollar for filing the affidavit, I have heretofore advised, and again advise, that the affidavit should be filed. The Secretary of State is, under the amendment of 1901, according delinquents the opportunity, upon payment of $20, of being reinstated upon his records. The question under consideration is now pending in 121 the Supreme Court of Illinois and a decision is ex- pested shortly. NOTE: See note to opinion of Oct. 22, 1900, to 111. Mfrs. Ass'n. Ed. THE TRANSFERABILITY OF MILEAGE TICKETS AND EIGHT OF RAILROAD COMPANY TO TAKE UP THE SAME FOR MIS- USER. (Adam J. Press Co., March 23, 1903.) I have your favor enclosing communication from Adam J. Press Co. That company states that it has purchased from a railroad company for one of its traveling salesmen a two thousand mile ticket; that such ticket was issued to the traveling salesman by name ; that an attempt was made by another salesman of the company to use the ticket and thereupon it was taken up by the railroad company. My opinion is asked as to whether or not the ticket in question can rightfully be used by a person other than the one to whom it was issued and whether or not the railroad company is obligated to redeem the part of the ticket which is unused. The conditions printed on the ticket, or the rules and regulations of the railroad company are not stated. A railroad company has the right to restrict the use of the ticket to the original purchaser, where a reduction is made from regular rates, as in the case of mileage tickets. The words "not transferable" or similar words, will have that effect, and a third party can acquire no rights by virtue of such ticket. The mile- age ticket, therefore, issued to a salesman by name can only by used by that person. Whether or not the com- pany has the right to take up the ticket in the hands of a person not entitled to use the same, or has merely the right to refuse to accept it, depends upon the con- ditions upon the ticket and the rules of the company. As a general rule the company has the right to forfeit the ticket. 122 Hutchinson on Carriers, 2d ed., Sec. 580 d. 25 Ency. of Law (2nd Ed.), p. 1091. It is made the duty of the railroad company by stat- ute in this State (Rev. Stat., Chap. 114, Sec. 116) to provide for the redemption of unused tickets. WHETHER AN ILLINOIS CORPORATION IS SUBJECT TO TAXA- TION IN THE STATE OF NEW YORK ON A BANK DEPOSIT CARRIED IN NEW YORK CITY. (Parlin & Orendorff Co., March 24, 1903.) "As a member of the Illinois Mfg. Assn. we wish to ask if we are subject to taxation in the State of New York on a bank deposit carried in New York City. We are notified of an assess- ment on personal property. We do no business within the State of New York, carrying no stock, accepting no orders, but confining ourselves out- side of banking to the strictly interstate com- merce. ' ' I cannot tell from the facts stated under what par- ticular law of New York the assessment is levied or what the assessment is upon. A state has no right to tax a foreign corporation upon its business or fran- chises where such corporation is engaged solely in interstate commerce, nor can a tax be levied in such a case upon the capital employed by such a corpora- tion within the state. A state, however, has the right to levy a tax upon property having a situs within the state, even though the business of such corporation is exclusively inter- state commerce. Money in bank is not property in the sense of having a situs at the place where the bank is located. The relation between the bank and the de- positor is that of debtor and creditor, the money de- posited belongs to the bank, and the banker is like any ordinary person so far as the question under consid- eration is concerned. The situs of debts follows the place of residence of the creditor. If, therefore, a depositor living in 123 Illinois has money on deposit to his credit at a bank in New York, such credit is subject to taxation in Illi- nois, but not in New York. Railroad Company v. Pennsylvania, 15 Wall., 300, and cases cited in Vol. 7, Rose's Notes toll. S. Eep.'s, p. 894. City v. Mackey, 22 Fed., 602. Insurance Co. v. Board of Assessors (La.), 16 L. E. A., 56, and 45 L. E. A., 524. 25 Ency. of Law, (2d ed.), p. 146. Eorer on Interstate Law, pp. 277-8. People v. Commissioners, 23 N. Y., 224. THE FOREIGN CORPORATION LAW OF COLORADO. (J. W. Sefton Mfg. Co. and Edwards-Stanwood Shoe Co., March 24, 1903.) I have your favor enclosing correspondence with J. W. Sefton Mfg. Co. and Edwards-Stanwood Shoe Co., and also correspondence between those companies and Samuel S. Large, an attorney of Denver, with ref- erence to the foreign corporation law of Colorado. The Colorado Act of April 6, 1901, provides that a foreign corporation shall not "have or exercise any corporate powers or hold or acquire any real or personal property, fran- chises, right or privileges, or be permitted to do any business, or prosecute or defend in any suit in this State, until the said fees shall have been paid. ' ' Mr. Large says : "Our trial courts have already determined that the words 'prosecute or defend in any suit in this State' mean literally, that a foreign corporation cannot maintain a suit whether it is doing business in Colorado or not, nor can it defend in a suit brought against it, whether the right of action ac- crued prior to April 6th, 1901, or not, without first taking out a charter. In other words, the question of inter-state commerce is eliminated entirely, and 124 this Act practically puts a tax upon the right of a foreign corporation to maintain a suit here, whether it has been doing, or intends to do, any business here or not." As stated in my letter of October 8, 1901, and Jan- uary 15, 1902, and in numerous other opinions ren- dered to your Association, the provision of the Colo- rado statute as to the maintenance of suits, is appli- cable only to corporations "doing business" in the State. If it is so construed as to prohibit corporations engaged solely in inter-state commerce from instituting or defending suits in Colorado, it. would be a direct interference with interstate commerce, and therefore, in my opinion, unconstitutional. If it is beyond the power of the State to declare invalid contracts made by a foreign corporation, which are transactions in interstate commerce, then the prevention of the en- forcement of said contracts is equally beyond its power. To permit this to be done would render nuga- tory the protection afforded by the constitution. No State has the right to interfere with inter- state commerce. The laws of a State cannot override the Federal Constitution. Therefore, it is impossible that "the question of interstate commerce is elimi- nated entirely," as this is beyond the power of the State. While a State has the undoubted right to ex- clude a foreign corporation from doing business within its domain, it cannot exclude a corporation from engaging in interstate commerce. In the conduct of such business such corporations are entitled to the protection of the State laws and a denial of such pro- tection is a denial of the equal protection of the laws, contrary to the 14th amendment of the Constitution of the United States. In McNaughton v. McGirl, 49 Pac. Eep., 651 (Mont.), the court in speaking of the effect of a State statute upon a contract made without the State by a foreign corporation engaged in the interstate commerce said: "No construction can be put upon the Statute of Montana which would render such a contract void without invading the exclusive right of Con- 125 gress. If, therefore, this contract sued on was lawfully made, notwithstanding a statute which declares or attempts to declare it void, it follows that any legislation of the State which seeks to prevent the enforcement of the contract is equally an invasion of the exclusive right of Congress. It must be true that if the State cannot declare the contract void, it cannot prevent the enforcement of the contract." In Prentice & Egan on the Commerce Clause of the Constitution, 192, it is said: 1 ' A State can no more exclude from its territory a corporation engaged in foreign interstate com- merce than it can exclude an individual so en- gaged." See, also, Cooper Mfg. Co. v. Ferguson, 113 U. S., 727, and notes to same in Vol. 10, Rose's Notes to the U. S. Reports, p. 1023. Prentice & Egan on the Commerce Clause of the Constitution, pp. 177, 195. Haldy v. Tomoor Co., 4 Ohio Dec., 118, and cases cited Bateman v. Western Co., 20 S. W., 931 (Tex.), and the authorities referred to in my prior opinions. It is not at all unlikely that the lower courts, and possibly even the Supreme Court of Colorado, may hold that a corporation engaged solely in interstate commerce cannot prosecute or defend any suit in Colo- rado, but in my opinion such rulings will not be sus- tained by the Federal Courts. NOTE: See note to opinion of July 20, 1901, to Challenge Ma- chinery Co. Ed. 126 THE STATUTE OF INDIANA IN RELATION TO REAL ESTATE HELD JOINTLY BY HUSBAND AND WIFE AND WHETHER THE SAME IS SUBJECT TO THE SEPARATE DEBTS OF EITHER OF THEM. (J. W. Sefton Mfg. Co., March 24, 1903.) "Please favor us by having Mr. Levy Mayer, attorney, pass on the correctness of the enclosed statement in letter from W. H. Hickman, attorney, Muncie, Indiana, in reference to the law concern- ing real estate when held jointly by husband and wife, if it cannot be reached for separate debts of either. ' ' The letter of Mr. Hickman, on which an opinion is asked, is as follows : "Rea Riggin, aged 31, married, operated a Garden & Floral business about 3 or 4 miles north of Muncie, and has been in the business, as we are advised, about one year. Riggin and wife jointly own a farm of 40 acres, but under the law of In- diana, real estate held jointly by husband and wife cannot be reached for separate debts of either the husband or the wife. Riggin is said to be a man of good habits, and from all we can learn of him, he is entitled to reasonable credit." An execution creditor of the husband, and the sheriff holding the execution, may be enjoined by the husband and wife from levying upon and selling real estate held by them as tenants by entireties. Hulet et al. v. Inlow et ux., 57 Ind., 412. In Chandler v. Cheney, 37 Ind., 391, two propositions are decided, as follows: "1. A husband and wife, though not thus de- scribed in a deed of conveyance of real estate- exe- cuted by them, take under such deed as tenants by entireties. 2. While such an estate exists, no interest in it can be sold on execution for the debts of the hus- band or wife, but the conveyance creating it may be set aside for fraud." 127 In the same case the Supreme Court of Indiana said : "It is a well settled rule at common law, that the same form of words, which, if the grantees were unmarried, would have constituted them joint ten- ants, will, they being husband and wife, make them tenants by the entirety. The rule has been changed by our statute above quoted. It requires that the intention to create a joint tenancy shall either be expressly declared, or it must manifestly appear from the tenor of the instrument. But a conveyance to a man and woman, who are then husband and wife, creates an estate by entirety. The same difference which existed at common law between joint tenants and tenants by entireties continues to exist under our statute. In both, the title and estate are joint, and each has the quality of survivorship, but the marked difference between the two consists in this: that in a joint tenancy, either tenant may convey his share to a co-tenant, or even to a stranger, who thereby becomes ten- ant in common with the other co-tenant; while neither tenant by the entirety can convey his or her share so as to affect their joint use of the property during their joint lives, or to defeat the right of survivorship upon the death of either of the co-tenants; and there may be a partition be- tween joint tenants, while there can be none be- tween tenants by entireties." In Bevins et al. v. Cline's Admr., 21 Ind., 37, the Supreme Court said: "At common law, if a conveyance be made jointly to a man and woman, who are not married, they take by moieties, as joint tenants, and either can sever such joint tenancy by a conveyance of his or her moiety; but if a conveyance of land be made to a man and woman, who are then hus- band and wife, they take as joint tenants by en- tireties, not by moieties ; they are seized per tout and not per my. Each, as well as both, is entitled to the use of the whole. Neither can sever the joint estate by his own act, as he can in case of 128 an ordinary joint tenancy, but both must unite in the deed to effect a conveyance of an estate in any part of the whole. 2 Black., supra. In the case of Stucky v. Keefe's Ex'rs,, 2 Casey (26 Penn. St. Eep.), 397, decided in 1856, the authorities on this point are collected. Nor, it would seem, could the separate interest of either be sold on execution. Indeed, there is no separate interest." In Arnold et at. v. Arnold, 30 Ind., p. 305, the court re-affirmed the ruling in Davis v. Clark, 26 Ind., 424, where it was held that : "At common law, if an estate is granted, as in this case, to a man and his wife, they are neither properly joint tenants nor tenants in common ; for husband and wife being considered one person in law, they cannot take the estate by moieties. Both are seized by the entirety, per tout and not per my. Neither can dispose of any part of the estate without the assent of the other, but the whole must remain to the survivor." The doctrine is the same where real estate is con- veyed to a husband and wife, and another person jointly; the husband and wife will take an undivided one-half of the premises, as tenants by entireties. Anderson v. Tannehill, 42 Ind., 141. In Patton, Admr., et al. v. Rankin et al., 68 Ind., 245, the court held: "We now decide that a crop, raised on land held by husband and wife by entireties, is held by them in the same manner and subject to the same law as the land itself ; and such crop is, therefore, not subject to levy and sale on an execution against the husband." In Carver et al. v. Smith et ux., 90 Ind., pp. 222- 224, the court said : "This court has always held that upon a deed to husband and wife, they can take by entireties, and that during their joint lives there can be no sale of any part on an execution against either." In Wilken et al. v. Young et al., 41 N. E. Rep., 68, the Supreme Court of Indiana said : 129 ''In this state a joint tenancy can only be cre- ated as provided by section 3341, Eev. St., 1894 (section 2922, Eev. St., 1881). Where lands are conveyed to husband and wife, and there are no words of limitation in the deed, or where it does not manifestly appear from the tenor thereof that it was intended to create an estate in joint tenancy, they will take as tenants by entirety. (Hadlock v. Gray, 104 Ind., 596; 4 N. E., 167, and authori- ties there cited.) It is equally well settled that the general rule controlling in a conveyance of real estate to husband and wife may be defeated by conditions, limitations or stipulations in the instrument of conveyance, when they clearly indi-* cate an intention of the grantor to create in the grantees a different estate. A joint tenancy may be created to exist between husband and wife by the express terms of the tenor of the deed of con- veyance. Thornburg v. Wiggins, 135 Ind., 178; 34 N. E., 999, and authorities there cited." In Thornburg v. Wiggins, supra, it is held : "Where the granting clause of a deed is as fol- lows: 'This indenture witnesseth that Lemual Wiggins and Mary Wiggins, his wife, of Ran- dolph county, in the State of Indiana, convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy,' etc., such a conveyance makes the husband and wife joint ten- ants and not tenants by the entirety, and the in- terest of each as joint tenants of the land, is sub- ject to execution which would not be so if they held the land as tenants by the entirety." In Carver et al. v. Smith et ux., 90 Ind., 223, it was held that: "Tenancy by entirety was not abolished, nor the statute recognizing it, R. S. 1881, section 2923, repealed by the act of 1881, enlarging the rights of married women. R. S. 1881, section 5115, et seq." Under the authorities above cited, if the joint es- tate held by a husband and wife is a tenancy by en- 130 tireties, it is not subject to levy and sale upon execu- tion for the debts of either husband or wife, if the joint estate is a joint tenancy, a contrary rule applies. A joint tenancy to husband and wife during coverture,, however, can only be created, under the Indiana stat- ute, by express words in the deed of conveyance. THE EIGHT OF A COMPANY TO USE A CORPORATE NAME WHEN NOT INCORPORATED AND THE EFFECT THEREOF. (Art Bedstead Co., April 3, 1903.) "We read Mr. Mayer's opinion on the pro- posed law to compel labor unions to incorporate. We notice he quotes in the support of his opin- ion, Chancellor Kent, in his Commentaries (Vol. 2, p. 277) : 'It requires the acceptance of a char- ter to create a corporate body; for the govern- ment cannot compel persons to become an incor- porated body without their consent ; or the consent of at least a major part of them.' In view of this authority we think we are not obliged to incor- porate. (We are not an incorporated company.) At the same time, we know we are liable to a fine if we are not incorporated. Is the law constitu- tional! We think it has been successfully fought but at the same time, we write to learn to be sure on the point." It also states: "The state has never made any effort to en- force us to incorporate. ' ' As I stated in the opinion above referred to, it is beyond the power of a state to compel any person or body of persons engaged in a private enterprise, to become a body corporate. The state, however, has the undoubted right to prevent any persons from hold- ing themselves out to the world as a corporation when in fact they are not so. The words, "Art Bedstead Company," import the name of a corporation. The words "Association," "Company," or "Works," pre- ceded by other words, are generally used as names of 131 corporations, and thus the use of such words implies a corporate name. A copartnership can have no prop- erty in a name importing the name of a corporation, as a trade name cannot be acquired in a name calcu- lated to deceive. Clark v. Aetna Iron Works, 44 111. App., 510. Supreme Lodge v. Tuhlke, 30 111. App., 98. Kriz v. Rod Pokrok, 46 111. App., 418. In the absence of a restrictive statute, the name and style of a partnership is wholly conventional, and a firm may adopt any name it sees fit. The statute of Illinois provides as follows: "If any company, association or person puts forth any sign, or advertisement, and therein as- sumes, for, the purposes of soliciting business, a corporate name, not being incorporated, or, being incorporated, puts forth any sign or advertise- ment assuming any other or different name than that by which it is incorporated, or authorized by law to act, such company, association or person shall be fined not less than ten dollars nor more than two hundred dollars, and a like sum for each day he or it shall continue to offend, after having been once fined. ' ' The Appellate Court of this district in Edgerton v. Preston, 15 111. App., 23, in construing this statute, said: "The mere assumption of a name appropriate for a corporation would be no violation of the statute ; nor would the putting forth of a sign of advertisement in which the corporate name is assumed, if not done for the purpose of soliciting business, constitute such violation. It is the pur- pose for which the act is done that gives char- acter to the act. What the legislature had in view in enacting this section of the Criminal Code man- ifestly was to prevent persons from obtaining a fictitious credit by advertising themselves as be- ing a corporation when they were not incorpo- rated. ' ' The use of the corporate name must, therefore, be 132 for the purpose of soliciting business. If the name is so used, the liability under the statute attaches. This law is undoubtedly constitutional. WHETHER A TELEPHONE COMPANY IS OBLIGATED TO FUR- NISH A PARTICULAR CLASS OF SERVICE WHICH IT FOR- MERLY MAINTAINED, BUT WHICH IT HAS ABANDONED EX- CEPT TO CARRY OUT EXISTING CONTRACTS. (E. T. Mason & Co., April 3, 1903.) "We have been using the telephone service for a good many years and as we sold out the bulk of our business a couple of years since, we find that we are not requiring the use thereof to the extent as formerly. We have consequently made appli- cation for a limited service of 600 calls, which we know that the Telephone Co. is making for the sum of $60.00 per year, they say that they are not making any new contracts for less than $75.00 per year for 600 calls, but do not deny that they still have some in existence at that former price. Now, we claim we are entitled to the $60.00 just as long as they have any contracts still in force and until the expiration of any such contracts. Will you kindly enlighten us in the matter." There is no obligation imposed on the Telephone Company by the ordinance of the City of Chicago, under which the Telephone Company operates, to furnish "limited call" service. The Telephone Com- pany, therefore, in the absence of contract, cannot be compelled to furnish such service. A telephone com- pany is a public service corporation, and must serve all the public upon the same terms, and without unjust discrimination. It cannot, therefore, furnish one kind or class of service to one individual and refuse the same service for the same price to another similarly situated. If, therefore, it continues to furnish a "limited call" service to one party, it must furnish to all and upon the same terms. The Telephone Com- pany has the right, however, in good faith to change the price for a class of service which it is not obligated 133 by law or by contract to furnish. If, therefore, it chooses to abandon the ''limited call" service, or to raise the price, it may do so, provided the price be raised as to all. Of course, it cannot raise the price under existing contracts. As to those, it must wait until the contracts have expired. If the Telephone Company has really decided to make the increase, then the fact that there are unexpired contracts for the par- ticular service does not obligate the Telephone Com- pany to furnish the service during the continuance of such contracts, provided no new contracts have been made since the discontinuance of the particular schedule. NECESSITY OF FILING ANTI-TKUST AFFIDAVITS ANNUALLY. (Allen B. Wrisley Company, April 3, 1903.) ' ' Replying to your circular of the 12th inst., we would say that we filed the necessary affidavit ac- companied by $1.00 on January 10th, 1902, in pay- ment for any liability we might have incurred during the year 1901, but we have made no pay- ment as yet for the year 1902 in this present year. Do you understand that it will now be necessary for us to file an affidavit to the effect that we are not a member or party to any agreement, etc., for regulating the price of merchandise covering our acts during the year 1902?" The law (Act of June 20, 1893, Laws of 1893, p. 89) provides that: "It shall be the duty of the Secretary of State, on or about the first day of September of each year to address to * * * each * * in- corporated company * * a letter of inquiry and to require an answer under oath * *." The answer to the inquiry must be made within thirty days from the mailing of such letter of inquiry. Under the provisions of this law, the affidavit in question must therefore be made each year, and when- ever a letter of inquiry is received from the Secretary of State. 134 LIABILITY OF THE STATE FOE HOUSES KILLED BY ORDER OF THE STATE BOARD OF LIVESTOCK COMMISSIONERS. (Allen B. Wrisley Co., April 7, 1903.) ' l Has any opinion been rendered by the general counsel of the association regarding the present law of the State of Illinois concerning the com- pensation to be paid for horses killed by order of the State! As we understand it, the State only assumes one-third of the value of the horse they order killed and yet limit the value arbitrarily to $100, no matter how valuable the horse may be. Are we correctly informed in this matter and is this act considered constitutional?" There is no law in this State under which the State assumes one-third of the value of the horse ordered killed. The Illinois law providing for compensation for the killing of horses by order of the State Board of Livestock Commissioners is contained in Sections 48 and 55, Chapter 8 (pp. 154, 156) Hurd's Revised Statute of Illinois, and was passed in 1885 and amended in 1887. It provides thus: "When the Board, upon the written report of the State Veterinarian, .or any of his assistants, determine that any animal is affected with, or has been exposed to any dangerously contagious or infectious disease, the Board, or any member thereof, may agree with the owner upon the value of such animal or property, and in case such agreement cannot be made, said Board, or the member acting in behalf of the Board, may ap- point three disinterested citizens of the State to appraise such diseased animal or exposed ani- mals or property. Such appraisers shall sub- scribe to an oath, in writing, to fairly value such animal in accordance with the requirements of this act, which oath, together with the valuation fixed by said appraisers, shall be filed with the Board and be preserved by them. Upon such ap- praisement being made, it shall become the duty 135 of the owner to immediately destroy such animals and dispose of the same in accordance with the order of said Board, or member thereof, and upon failure to do so, said Board, or member thereof, shall cause such animal or animals or property to be destroyed and disposed of, and thereupon the said owner shall forfeit all right to receive the compensation allowed by said apprais- ers and provided for by this act." (Sec. 48.) "All claims against the State arising from the slaughter of animals as herein provided for, shall be made to said Board of Commissioners, under such rules and regulations as they may prescribe, and it shall be the duty of said Board of Commis- sioners to determine the amount which shall be paid in each case on account of animals so slaugh- tered, which in cases of animals of the equine species, shall be based on their fair cash market value, not to exceed $100 per head, and re- port the same to the Governor; and the Gov- ernor shall endorse thereon his order to the State Auditor, who shall thereupon issue his warrant to the State Treasurer for the same." (Sec. 55.) A State may, in the proper exercise of its police power, authorize the destruction of such property as has become a public nuisance, as has an unlawful ex- istence, as is obnoxious to public health, public morals or public safety, without making any compensation whatsoever to the owner therefor, notwithstanding the prohibition in Section 1, Article 14 of the amendments to the Constitution of the United States, which pro- vides that no State shall "deprive any person of life, liberty or property without due process of law. ' ' It is, however, the actual existence of disease and exposure thereto, which, under the Statute, gives the power to destroy, and unless that fact exists, the kill- ing of the horses is not an act .done under the authority of the law. If, therefore, the Board of Livestock Commissioners determine that contagious disease and exposure thereto do exist, and in consequence order the destruction of the animals, the burden is upon the 136 Board of Commissioners to establish affirmatively the actual existence of such disease and exposure. If the disease and exposure do not actually exist, the act of Board of Commissioners cannot be justified un- der the law, and the Commissioners will be personally liable in damages. As the State has no authority under its police power, where contagious disease and exposure thereto do not exist, to order the destruction of horses, the State has no power, in the absence of such contagious disease and exposure, to limit the amount that can be recov- ered for the horses ordered killed. In other words, the real test is, do the contagious diseases and exposure exist? If they do exist, a law which made no provi- sion whatever for compensation would be valid. If they do not exist, then the Commissioners act at their peril, and no law can constitutionally limit the recov- ery to $100. In Pearson v. Zehr, 138 111., 48, the Board of Live- stock Commissioners of Illinois were held liable under the law of 1885 in an action brought against them for damages, even though they pleaded that they acted in good faith, that there were reasonable grounds for the belief that the horses were diseased with glanders and that others had been exposed to that contagion; that they made an honest and careful investigation, to the best of their ability, and as a result thereof, deter- mined and decided that some of the horses were so diseased and others had been so exposed. The court held the Board liable in that case, notwithstanding- such defense, it having been proven on the trial that the contagious disease and exposure thereto did not in fact exist. It will be noticed that that suit was brought against the Board of Livestock Commissioners and a verdict against them upheld. The Constitution of this State provides, in Section 26 of Article IV., that "The State of Illinois shall never be made a defendant in any court of law or equity, ' ' and since the adoption of the Eleventh Amendment to the Constitution of the United States, the courts 137 have uniformly held that no State could be sued by a private person or corporation in a Federal Court without the express consent of the State. The Legislature of Illinois established in 1877 a Commission of Claims before whom claims against the State in certain classes of cases can be presented, and if favorably adjudicated by the Commission of Claims, they report to the Governor and the Governor reports to the Legislature and the Legislature may make an appropriation to meet such adjudicated claims. The question whether a claim growing out of the Statute under consideration would come within the jurisdiction of the Commission of Claims of Illi- nois, is not now presented. The members of the State Board of Livestock Com- missioners are, however, liable in their individual ca- pacity if they order the destruction of horses which in fact are not actually suffering from a contagious dis- ease and exposure thereto. In such case the measure of liability, in my opinion, would not be $100 per horse, but the market value of each horse so ordered killed. The question under consideration in various phases will be found passed upon in the following, among other cases: Pearson v. Zehr, 138 111., 48. Grimes v. Eddy (Sup. Co. Mo.), 26 L. E. A., 638, and exhaustive annotation thereto. Miller v. Horton (Sup. Ct. Mass.), 10 L. E. A., 116. Newark, etc., Horse Car Co. v. Hunt, 50 N. J. Law, 308. Loesch v. Koehler (Sup. Ct. Ind.), 35 L. E. A., 682. Houston v. State (Sup. Ct. Wis.), 42 L. E. A., 39. Tappen v. State, 146 N. Y., 44. 138 THE EIGHT OF A RAILROAD COMPANY TO LIMIT IN AN AR- BITRARY WAY THE VALUATION ON SHIPMENTS. (W. H. Bice, April 27, 1903.) ''Kindly advise me if Mr. Mayer, the attorney for your association, has ever passed on the ques- tion of limiting in an arbitrary way the valuation on shipments by railroads. In our shipments we are compelled to put on our shipping tickets for shipments of marble the following : * Valuation re- stricted to 40c per cubic foot.' This, of course, is no value at all, but it is required by the Rail- road Kate Association, so we are required to use it. We have made a claim against the C., B. & Q. B. B. for breakage of marble amounting to about $25.00. They now bring up this clause and we are compelled to allow it. We get for our $25 the sum of about $1.25, which does not seem reasonable." At common law a common carrier of goods is liable, in case of their loss or damage, as an insurer. In this State a common carrier may, however, by express con- tract limit its strict common law liability. It may by special contract limit its liability to such loss or dam- age as may occur on its own line of carriage, or against loss by fire without its fault, or against other loss not attributable to its negligence, or that of its servants. It may also require the value of goods offered for transportation to be fixed by the shipper to protect itself against fraud in case of loss. But a common car- rier cannot, even by express contract, exempt itself from liability resulting from gross negligence or wil- ful misconduct committed by itself, or its servants or employes; nor can it limit its liability in amount as against damages resulting from such negligence. The carrier cannot fix arbitrarily the value of goods delivered to them for transportation and thereby limit their liability in case of loss. It is liable for the full value of the goods. The parties, however, for a sufficient consideration, may agree upon the value of the goods shipped, and 139 this value will control in case the goods are lost. A lower rate of freight or something equivalent is a suf- ficient consideration for such a contract. Where, however, a carrier affords shippers no op- portunity to contract for the transportation of freight under its common law liability as an insurer, but re- ceives it only upon condition that its liability in case of loss, is restricted to a certain valuation, a contract containing such restriction is void. The fact that such contract was entered into knowingly by a shipper and without demand for a different contract, makes no dif- ference. Where there are two rates for carrying goods one if carried under the common law liability and the other if carried under a special contract at a reduced rate, restricting the value in case of loss, the shipper must have real freedom of choice in making his selection, or he will not be bound by the special contract. A carrier may demand information as to the value of the goods shipped to enable it to decide on the com- pensation to be charged, and the degree of care to be used. A limitation of liability where the value is not truly stated, will be given effect, if such limitation is reasonable. Where a shipper places a value on his goods and knowingly enters into a contract for their shipments based on such valuation he is bound by the contract, and will be restricted to such valuation. While such a contract does not absolve the carrier from the exercise of reasonable care, yet the shipper cannot have his property transported at a low rate because of such valuation, and in case of loss compel the carrier to pay more than the valuation in the con- tract. If, in the present case, the shipper was given no op- portunity to have his goods shipped, under the com- mon law liability as an insurer, but was obliged to ship them under an arbitrary valuation, the contract is not binding and such shipper can recover the full value of the goods. In support of the opinion see the following author- ities : 140 5 Ency. of Law (2nd Ed.), p. 328. C. & N. W. Ry. Co. v. Chapman, 133 111., 90. C., B. & Q. R. R. v. Miller, 79 111. App., 473. C. & N. W. Ry. Co. v. Calumet Stock Farm Co., 194 111., 9. Adams Exp. Co. v. Stettaners, 61 111., 184. C., R. 1. P. R. R. v. Harmon, 12 111. App., 54. Wabash Ry. v. Brown, 152 111., 484. C.SA.R.R. v. Davis, 159 111., 54. Oppenheimer v. U. S. Exp. Co., 69 111., 62. LIABILITY FOE CONSPIRACY OF THE MEMBERS OF A COMBI- NATION OF EMPLOYERS FORMED FOR THE PURPOSE OF BLACKLISTING STRIKING EMPLOYES. (William D. Allen, May 13, 1903.) "Let us suppose that a dozen firms in the wood working business got together and formed an as- sociation of manufacturers; that they elected and paid a secretary, and that there was a strike in the factory of some of the members of the Association. We will suppose that the Secretary of the Associa- tion was furnished with a list of men out on a strike and that by preconcerted arrangement, other members of the Association refused to hire any of these men on a strike; do you think that this would render the members of the Association liable for blacklisting?" The question propounded involves two parts; one, is there a civil liability, and the other, is there a crim- inal liability? The legality of an association depends upon the purpose for which it is formed. If a criminal element enters into the means or objects, the result would be a criminal conspiracy. The same acts may constitute both a criminal and civil conspiracy. The crime of conspiracy consists in a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, or to effect a legal purpose by illegal means. In the case of a criminal conspiracy the law pun- 141 ishes as a crime the mere agreement to effect an illegal purpose or, to use illegal means. To sustain a civil lia- bility for a conspiracy, the plaintiff must suffer dam- ages. To sustain the charge of criminal conspiracy, it is not necessary to prove that anyone has suffered ac- tual damages. In this one particular respect, there- fore, a criminal conspiracy might be made out where a civil conspiracy could not be established. Different courts have passed upon the legality of associations formed for a variety of purposes similar to those covered by the question under consideration. The decisions of the courts, however, are not at all har- monious. I assume that my opinion is asked not with reference to what the law ought to be, but as to what the courts of Illinois would probably hold. No case involving the precise facts embodied in the question has been decided by either the Appellate or Supreme Court of Illinois. In Doremus v. Hennessy, 62 App., 391, decided in 1895, a civil action was brought for a conspiracy. In that case Mrs. Hennessy kept a laundry office in Chi- cago. She procured the laundering to be done by va- rious persons who were operating laundries. The Laundrymen's Association demanded that she should increase her prices. She declined. The Association thereupon induced various parties who were doing the laundering for her to break their contracts and not to launder work for her, and in consequence her laundry agency was broken up and ruined. She secured a judg- ment for $6,000, which was sustained first by the Ap- pellate Court and then by the Supreme Court. In 176 111., 608, the Supreme Court said: "No persons, individually or by combination, have the right to directly or indirectly interfere or disturb another in his lawful business or occupa- tion, or to threaten to do so, for the sake of com- pelling him to do some act which, in his judg- ment, his own interest does not require. Losses wilfully caused by another, from motives of malice, to one who seeks to exercise and enjoy the fruits 142 and advantages of his own enterprise, industry, skill and credit, will sustain an action. It is clear that it is unlawful and actionable for one man, from unlawful motives, to interfere with another's trade by fraud or misrepresentation, or by mo- lesting his customers or those who would be cus- tomers, or by preventing others from working for him or causing them to leave his employ by fraud or misrepresentation or physical or moral, intimi- dation or persuasion, with an intent to inflict an injury which causes loss. * Appellant's and those persons who refused to do appellee's (Mrs. Hennessy's) work, had each a separate and independent right to unite with the organization known as the Chicago Laundrymen's Association, but they had no right, separately or in the aggregate, with others, to insist that the ap- pellee should do so, or to insist that appellee should make her scale of prices the same as that fixed by the association, and make her refusal to do this a pretext for destroying and breaking up her busi- ness. A combination by them to induce others not to deal with appellee or enter into contracts with her or do any further work for her was an action- able wrong. ' ' In Jackson v. Stan field (Ind.), 23 L. B. Ann., 588, an action was brought for damages and for an injunction, on the ground that the defendants entered into an un- lawful combination to injure the plaintiffs in their business as lumber merchants. The defendants consti- tuted the "Retail Lumber Association of Indiana." One of the purposes of the association was to with- draw the patronage of its members from any whole- saler who sold lumber to one who was not a retailer, as defined by the by-laws of the Association. The court held the Association unlawful and said : "A conspiracy formed, and intended directly or indirectly to prevent the carrying on of any legal business or to injure the business of any one by wrongfully preventing those who would be custom- ers from buying anything from the representa- 143 tives of such business, by threats or intimidation, is in restraint of trade and unlawful. ' ' In Boutwell v. Marr (Vt.), 43 L. E. Ann., 803, the plaint iff, who was a granite manufacturer, sued the defendants, who were members of the Granite Manu- facturers' Association. The by-laws of the associa- tion provided that no member should deal or do busi- ness with any person dealing in granite not a member of the Association, under penalty of a fine. The Supreme Court of Vermont said : "It is clear that every one has a right to with- draw his own patronage when he pleases, but it is equally clear that he has no right to employ threats or intimidation to divert the patronage of another. If it be true as a general proposition that several may lawfully unite in doing to another's injury, even for the accomplishment of an unlawful pur- pose, whatever each has a right to do individually, it by no means follows that the combination may not be brought about as to make its united action an unlawful means. The defendants insist that, as members of the association, they had a right to re- solve to keep their work among themselves, and that, in the absence of anything tending to show an attempt on their part to influence the action of others, they cannot be held liable. It may be true that if the defendants, acting independently of any organization, and moved solely by similar- ity of interest and views, had united in withdraw- ing their patronage, the effect upon the plaintiffs ' business would have been the same, and yet the de- fendants have incurred no liability. But, in the case supposed, the united action would result from the free exercise of individual choice. It will be seen upon further inquiry that this cannot be said of the action of an organization like that operated by the defendants." It was contended in the Vermont case that as the members of the Association had voluntarily assumed its obligation, there was no coercion upon them to withdraw their patronage. The court held, however, a 144 violation of the by-laws being punishable by a fine or penalty, that this was equivalent to coercion of the members of the Association. In Bailey v. Plumbers' Assn. (Tenn.), 46 L. E. Ann., 561, the Supreme Court held that the legal right of each individual plumber to purchase supplies and ma- terials from any dealer or dealers he may choose, will not sustain the by-laws of an Association which permits its members to make purchases only from such dealers as sell exclusively to members of the Association. The court said: "But, in our opinion, it does not follow from this undoubted freedom of individual member and of individual dealer that all the members may, as ruled in those cases, lawfully enter into a general and unlimited agreement, in the form of by-laws, that they and all of them will make their purchases from only such dealers as will sell to members ex- clusively. The premise does not justify the con- clusion. The individual right is radically different from the combined action. The combination has hurtful powers and influences not possessed by the individual. It threatens and impairs rivalry in trade, covets control in prices, seeks and obtains its own advancement at the expense and in the op- pression of the public. The difference in legal con- templation between individual right and combined action in trade is seen in numerous cases. ' ' In Brown v. Jacobs (Gra.), 57 L. E. Ann., 547, it was held that a combination of mercantile dealers which re- quired another who was dealing in similar goods, to sell at prices fixed by the Association, or failing to sell at such prices, to prevent its members from selling goods to him, was contrary to public policy and void. I have pointed out the foregoing illustrated cases from among a considerable number holding the same way. To show the conflict that exists, I now refer to a few cases which hold a contrary doctrine. In Bohn v. Lumbermen's Assn. (Minn.), 21 L. E. Ann., 337, a large number of retail lumber dealers formed an association and agreed that they would not 145 deal with any manufacturer or wholesaler who should sell lumber direct to the consumer, at any point where a member of the Association was carrying on a retail yard. This case, it will be noticed, is exactly like Jackson v. Stanfield, supra, decided by the Supreme Court of Indiana. The Minnesota court, however, held that such an agreement did not constitute an action- able conspiracy, and said: "What one man can lawfully do singly, two or more may lawfully agree to do jointly. The num- ber who unite to do the act cannot change its char- acter from lawful to unlawful. The gist of a pri- vate action for the wrongful act of many is not the combination of conspiracy, but the damage done or threatened to the plaintiff by the acts of the defendant. If the act be unlawful, the com- bination of many to commit it may aggravate the injury, but it cannot change the character of the act." In MacAuley v. Tierny (R. I.), 37 L. E. Ann., 455, the Supreme Court of Rhode Island held directly to the contrary of the holding of the Supreme Court of Tennessee in the case of Bailey v. Plumbers' Assn. of Memphis, referred to above. The Supreme Court of Rhode Island held that notice by a plumbers' associa- tion that it will withdraw its patronage from wholesale dealers who sell to any one not a member of the Asso- ciation, is not unlawful, although the cause and excuse for notice are the selfish purpose of the Association to rid its members of the competition of those who are not members. The court said: * ' To maintain a bill on the ground of conspiracy, it is necessary that it should appear that the ob- ject relied on as to the basis of the conspiracy, or the means used in accomplishing it, were unlawful. What a person may lawfully do, a number of per- sons may unite with him in doing, without render- ing themselves liable to the charge of conspiracy^ provided the means employed be not unlawful. The object of the members of the association was to free themselves from the competition of those 146 not members, which, as we have seen, is not un- lawful. The means taken to accomplish that ob- ject were the agreement among themselves not to deal with wholesale dealers who sold to those not members of the association, and the sending of notices to that end to the wholesalers. This, as we have also seen, was not unlawful. Hence it follows that, as the object of the combination between the members of the association was not unlawful, nor the means adopted for its accomplishment un- lawful, there is no ground for the charge of con- spiracy, and the fact of combination is wholly im- material. ' ' The doctrine announced in the Minnesota and Rhode Island cases has been expressly disapproved in Jack- son v. Stanfield, the Indiana case; Bailey v. Plumbers' Assn., the Tennessee case, and in Brown v. Jacobs, the Georgia case. One line of cases proceeds upon the theory that what one may lawfully do as an individual a number may do collectively, through the instrumen- tality of association; while the other line of cases holds that the individual act is radically different from the combined action. A combination possesses power which an individual does not. Many of the courts have therefore held that while persons may lawfully refuse to deal or have business relations with another, a num- ber of persons cannot join together and refuse to deal or have business relations with such person ; that such person is entitled to the exercise of individual freedom on the part of everyone. In Ertz v. Produce Exchange (Minn.), 48 L. B. Ann., 90, the Supreme Court of Minnesota, on February 8, 1900, that had decided the Bohn case on July 20, 1893, said of the Bohn case : "It is to be noted that the defendants in the Bohn case had similar legitimate interests to pro- tect, which were menaced by the practice of the wholesale dealers in selling lumber to contractors and consumers, and that the defendants ' efforts to induce parties not to deal with offending wholesale dealers were limited to members of the association 147 having similar interests to conserve, and that there was no agreement or combination or attempt to induce other persons not members of the associa- tion to withhold their patronage from such whole- sale dealer. In this respect the (Bohn) case dif- fers materially from the one at bar, in which the complainant does not show that the defendants had any legitimate interests to protect by their al- leged combination. On the contrary, it is expressly alleged in the complaint that the combination, which was carried into execution, was for the sole purpose of injuring the plaintiff's business, and the defendants conspired to induce the plaintiff's patrons and persons, other than the defendants, to refuse to deal with him. Such alleged acts on the part of the defendants are clearly unlawful." It will be noticed from what is said in Ertz v. Prod- uce Exchange that the Supreme Court of Minnesota, like one or two other courts, attempts to make a dis- tinction in favor of efforts on the part of an Associa- tion to force their own numbers to conform to their views, and to hold against the right of an association to force others, who are not members, to conform to the views of the Association. Other cases hold where there is no element of coercion, intimidation or op- pression on the part of the Association to enforce its views or bylaws, against its members, that then the action of the Association is merely voluntary and not actionable. Many other cases which I have examined might be cited. They are referred to in the cases from which I have quoted at length, and also in the annotations in the Lawyers' Reports Annotated. One or two further citations will, however, be appropriate. In Commonwealth v. Carlisle (Pa.), Brightly Rep., 36, it was held that a combination of employers to de- press the wages of journeymen below what they would be if there had been no recurrence to artificial means, was an indictable conspiracy. In Cote v. Murphy (Pa.), 23 L. R. Ann., 135, it was subsequently held by the Supreme Court of Pennsyl- 148 vania that a combination of employers to resist an ad- vance in wages determined upon by an association of employes, by refusing to sell any person who concede such advance, is not an unlawful conspiracy. That court held because the Pennsylvania statute gives to employes the right to combine for an advance in wages, that by implication at least, the employers ought to have and the court concedes them the right to combine to resist an advance in wages. In Brewster v. Miller's Sons (Ky.), 38 L. R. Ann., 505, the Supreme Court of Kentucky held it not unlaw- ful for the undertakers of a community to associate themselves together and agree to refuse to render serv- ices to one who has refused or failed to pay a bill due to a member of the Association. To the same effect see: Schulter v. Brewing Co., 96 Ky., 224, and Very v. Chicago Live Stock Exchange, 54 111. App., 233, where it was held not unlawful to combine together for protection against dishonest debtors. The court, by Mr. Justice Gary, sententiously re- marks in an extremely brief opinion : "If he had bought twenty head of cattle of Keenan & Sons, and did not pay for them, the members of the department ought to stop dealing with him, and the defendant was right in notifying its members of the facts and their duty. ' ' In my opinion, the legal rules in Illinois which will be applied to cases of the kind in question are as fol- lows : (a) Persons may combine for legitimate purposes, such as protection against dishonest debtors. Dis- honest or inefficient employes would be a legitimate purpose. (b) An individual may refuse to deal with a par- ticular person or class of persons, and base such re- fusal upon mere whim or caprice, but a number of per- sons cannot combine to do so, where the object of the combination is to compel the adoption of a certain scale of price or wages, whether such compulsion is directed 149 to the members of the Association or to those not mem- bers. (c) Wherever fraud, intimidation, force or op- pression is used by an association, its action is unlaw- ful. If pressure is brought to bear on persons outside of the Association, by withdrawal of patronage or other means to compel the outsider to conform to the rules of the Association, such action is unlawful. (d) Where a fine or penalty is imposed, on pain of expulsion, upon members to compel them to conform to the rules or by-laws of the Association, this amounts to coercion and the action of the Association ceases to be the voluntary action of its individual members, and if such action of the Association is otherwise unlawful, the members of the Association will be liable. (e) Every person is entitled to pursue his lawful trade or calling. That is part of his civil rights. The right to labor is a natural right. The employer has the right individually to refuse to hire any particular per- son or class of persons, even though such refusal is based upon caprice or even malice. Employers, how- ever, have not the right to combine together and refuse to hire a particular person or class of persons, unless such action is necessary to the maintenance, preserva- tion or furtherance of the employers' legal rights. The putting in operation of a blacklist is not a legal right. Employers have the right to exchange lists of employes who are discharged for inefficiency or bad conduct, to the same extent as they would have the right to ex- change information as to dishonest debtors, or as to devices or equipment which prove defective. Thus, railroad companies have the right to exchange lists of engineers who are afflicted with color-blindness or whose hearing is impaired. See: Hundley v. Louisville Ry. Co., 48 S. W., 429, (decided by the Court of Appeals of Ken- tucky, Dec. 13, 1898). (f) If employers go outside of the bounds of self- protection and agree not only to furnish information, 150 but capriciously not to employ persons because they have been on a strike, such conduct would be actionable. This because the employe has the right to peaceably strike in order to better his condition or advance his wages. The blacklisting of such employes by an Asso- ciation of employers, penalizes the right to strike. It is voluntarily putting into motion of an agency calcu- lated to inflict an injury to another, who stands in no relation, contractual or otherwise, with the wrong-doer. It is not done for the preservation of any right of the employer, but solely to injure the employe and prevent him from obtaining employment. The courts have almost uniformly held that employes have the right to combine and refuse to work for one who does not employ union labor. This does not con- stitute conspiracy and is not actionable. Allen v. Flood (1898), H. L. App. Gas., 1. Davis v. Engineers, 51 N. Y. S., 180. Ref. Club v. Laborers, 60 N. Y. S., 388. Carson on Conspiracy, pp. 157, 178. Carew v. Rutherford, 106 Mass., 13. Comm. v. Hunt, 4 Mete., Ill (Mass.). (g) It would seem because laborers have the right to combine and refuse to work for a man who does not employ union labor, or in order to better their condition or advance their wages, that employers ought to have a co-relative right to combine and refuse to employ any particular class of men. It is intimated by some of the courts that the rights of an employer and employe in this respect are not synonymous, and that the distinction arises from the nature of the right to labor, which is said to be founded in natural law, and that the rights of an employer, as such, depend upon contract; that the combination of the laborer is founded in right, while that of the employers is founded in interest; that right and interest are not synonymous. See: State v. Opdyke, reported in Carson on Con- spiracy, p. 176. 151 Mattison v. L. 8. & M. S. Ry. Co., 3 Ohio Dec., 526. Blumenthal v. Shaw, 77 Fed., 954. Cogley on Strikes and Lockouts, p. 293. 1 Eddy on Combinations, pp. 501, 506. (h) Blacklisting is made a crime by the Statutes of Illinois. Section 96 of the Criminal Code provides : "If any two or more persons conspire or agree together * * * for the purpose of establishing a so-called boycott or blacklist * * they shall be deemed guilty of a conspiracy, and every such of- fender, whether as individuals or as the officers of any society or organization, and every person convicted of conspiracy at common law, shall be imprisoned in the penitentiary not exceeding five years, or fined not exceeding $2,000, or both." Without entering upon a scientific discussion as to why there should be such irreconcilable conflict be- tween the rules of law applicable to employes and those applicable to employers, it is my conclusion that the facts contained in the query to which this is a reply, if properly proved, would constitute both a civil and criminal offense. The length of this opinion is due largely to the fact that I have endeavored to answer a considerable num- ber of other inquiries which are in line with the par- ticular communication to which this reply is ad- dressed. VALIDITY OF A CONTRACT BETWEEN EMPLOYEE AND EM- PLOYE AND DAMAGES FOE BEEACH OF SAME. (Kinley Mfg. Co., May 14, 1903.) "We enclose herewith a memorandum of an agreement which one of our correspondents makes with employes entering their service. Will you kindly refer this to your attorney and ask him if there is anything in this contract which would not hold under the Illinois laws." 152 The agreement is as follows : ''Memorandum of Agreement Between And In consideration of my receiving employment by Company, and in further con- sideration of the fact that it takes a full week's time after employment to work for the company to advantage, I hereby agree : 1. To work for them subject to their general shop rules. 2. To give them one week's notice of my in- tention of leaving their employ before leaving, in order to enable them to employ another person in my place and have him become thoroughly famil- iar with the work. 3. In case I leave their employ without giving the requisite notice to forfeit one week's wages by way of liquidated damages. I have read the 'General Shop Rules' and 'In- structions to Avoid Accidents ' which are posted in the factory. I represent that I am years of age. Signature of employe." The so-called ' ' Memorandum of Agreement ' ' is with- out efficacy and destitute of legal effect. It is lack- ing in mutuality and is what is known in the law as a unilateral contract. It is not binding on either party and no action can be maintained for its breach. There is no agreement on the part of the company to employ. The agreement is all one-sided and the employer agrees to do absolutely nothing. The promises of the employe therefore being without corresponding obligations on the part of the employer, are not bind- ing. Vogel v. Pekoe, 157 111., 339. Weaver v. Weaver, 109 111., 225. 153 Wilkinson v. Heavenrich, 26 N. W., 139 (Mich.). Am. Cotton Oil Co. v. Kirk, 15 C. C. A., 540 (and note). Bishop on Contracts, Sees. 78 and 318. Chitty on Contracts, p. 15. If the contract were mutual and binding, the parties may stipulate that the employe shall give reasonable notice of his intention to abandon his employment and where the damages for failure to give notice are not readily ascertainable, the courts will give effect to a forfeiture clause in the contract, not as a penalty but as liquidated damages, as the courts will not enforce penalties. To be valid, a contract with a forfeiture clause must be a definite and binding contract of employment, and the services of such a nature that the damages occa- sioned on account of a failure to give notice are not readily ascertainable. The use of the term ' ' liquidated damages " in a con- tract is not conclusive that it is not a penalty in any particular case. Henessy v. Metzger,, 152 111., 505. The rule is well settled in this State that the parties may agree upon any sum as compensation for the breach of a contract, which does not exceed the amount of the damage suffered, but when the sum agreed upon is manifestly greater than the actual damages, and the damages are such as can be readily shown, such sum so inserted in the contract will be regarded merely as a penalty, and only the actual damages can be recov- ered. Schofield v. Tompkins, 95 111., 190. Radloff v. Haase, 96 111. App., 74. Popper^ v. Meagher, 148 111., 192. Gobble v. Under, 76 111., 157. Morris v. Tillson, 81 111., 607. Reeves, Admr. v. Stipp, 91 111., 609. 154 LIABILITY OF VENDOR OF COKE FOR LOSS OF COKE EN ROUTE WHEN SOLD BY OVEN WEIGHTS. (Butler Street Foundry & Iron Co., May 21, 1903.) "We buy coke f. o. b. cars Chicago, oven weights to govern. We find that on an average cars of about twenty tons, oven weight, run short about one ton if weighed on our wagon scales. We have repeatedly called attention of the different com- panies of whom we buy to this shortage, and in- variably they tell us 'coke is sold that way.' Are we obliged to accept oven weights, when our scales show repeatedly that oven weights are not correct, or that there is a shrinkage en routs ? ' ' If the contract between the company and the coke dealer is made on the basis of "oven weights" those weights must govern in accordance with the contract. That the contract is made on such a basis is apparent from the statement: "We buy coke f. o. b. cars Chi- cago, oven weights to govern" and the statement of the companies that "coke is sold that way." The question is one wholly of contract. Of course, if there is loss en route not caused by shrinkage, the railroad company would be liable for such loss. THE SCOPE OF THE LITIGATION WITH THE CHICAGO TELE- PHONE COMPANY. (Illinois Malleable Iron Co., May 21, 1903.) "Concerning the Telephone Company and their charges, would ask, Can you not have your bill amended so as to allow more of your members to be benefited by it? We are afraid it will not help us. Our factory is on Diversey avenue, which is a mile and a half north of North avenue, so we are too far north; and we are also too far west to be benefited by your bill. We were only paying $125 a year for our fac- tory telephone until we put in the metallic circuit, 155 when they raised us to $175. We have two of them at $175 a year at our factory. Can you not amend your bill to give us relief at our office 1 We have a switchboard and two trunk lines and three house telephones, and you know how they pile up the charges on them; yet the way your last bill was drawn it gave us no relief. We think you should make it broad enough this time to give relief to your members in gen- eral." The first bill of the Illinois Manufacturers' Associa- tion now pending before Judge Tuley, applies only to such persons as have metallic circuit business tele- phones within certain limits. For them an injunction has been procured against a charge in. excess of $125 per year. A bill was recently filed on behalf of those members of the Association whose places of business are located within one mile from the outside limits of the first district, and for them a stay has been procured against a charge exceeding $150 per year. There are some eight hundred plaintiffs in these two suits. It is not possible to enlarge the scope of either of those bills without violating the rules of equity plead- ing. The purpose of a bill must be single and definite, and cannot include a number of distinct causes of action. There are no proceedings now pending relative to switch-board contracts, nor relating to residence tele- phones, nor relating to those outside the mile beyond the designated limits. AS TO WHETHER THE REPORTS REQUIRED UNDER THE ILLI- NOIS ANTI-TRUST STATUTE APPLY TO FOREIGN CORPORA- TIONS. (Curtain Supply Co., May 21, 1903.) "Will you please advise whether the reports that we have to make to the Secretary of State on the Anti-trust proposition apply to Foreign cor- 156 porations. Our corporation is a New Jersey cor- poration, licensed to do business in this State." The Act requiring the affidavit provides : "That it shall be the duty of the Secretary of State, on or about the first day of September of each year, to address to the president, secretary or treasurer of each incorporated company doing business in this State, whose post-office address is known or may be ascertained, a letter or inquiry as to whether the said corporation has all or any part of its business or interest in or with any trust, combination or association of persons or stockhold- ers, as named in the preceding provisions of this Act and to require an answer under oath, of the president, secretary or treasurer, or any director of said company; a form of affidavit shall be en- closed in said letter of inquiry, ' ' etc. 4 This section further provides a penalty of $50 for each day after refusal to make such affidavit within thirty days from the mailing of said notice "or. the Attorney General may, by proper pro- ceedings in a court of law or chancery, proceed to forfeit such charter of such incorporated com- pany or association incorporated "under the gen- eral laws or by any special law of this State, anoT to revoke the rights of any foreign corporation located herein, to do business in this State." The statute, therefore, by its terms, specifically re- quires the anti-trust affidavit to be made for all cor- porations, foreign as well as domestic. The Supreme Court of Illinois, in People v. Butler Street Foundry & Iron Co., 201 111., 236, held that the above law was constitutional. The question has not been decided by the United States Supreme Court. Heretofore the State officials have not endeavored to enforce the law in question as against foreign corpora- tions. When such an attempt is made an opportunity may be afforded to get the matter into the Federal Courts. Whether the outcome in the United States Supreme Court will be other than that in the State Supreme Court, is of course an open question. 157 LIABILITY OF A RAILROAD COMPANY FOR APPROPRIATING COAL IN. TRANSIT. (Ludowici Roofing Tile Company, May 21, 1903.) ' ' We believe that the too long tolerated attitude of the railroads relative to private ownership is largely responsible for the present state of af- fairs. If grain is bought at an elevator or steel at a mill a railroad company does not refuse to issue a bil of lading to the owner for his property. But if the property is coal bought at the mines the bill of lading is frequently withheld. A bill of lading when issued for grain or steel repre- sents property and is negotiable. A bill of lading for coal has no value in the estimation of a rail- road company and the sacred property rights of private owners are daily violated by the so-called confiscation of this coal ; as truly robbery as if coal yards were forcibly entered and coal removed. This outrageous practice has been tolerated so long that possession rather than purchase has come to be considered as constituting owner- ship of coal. This moral delinquency has infected producers and dealers until the real owner has very little to say as to the disposition of his prop- erty. We would urge that first the question of the rights of private owners to retain possession of and direct the handling of their coal be definitely settled in the courts by suits against the railroads for confiscating coal, and second, that the associa- tion through its special committee and legal ad- viser prepare a form of contract which will be a contract in effect as well as in word, and that no other form shall be used by members of the association." A railroad has no greater right to confiscate coal than it has to confiscate any other species of prop- erty entrusted to its care. If, therefore, it wrongfully appropriates coal to its own use, it is civilly liable in 158 damages to the owner for the value of such coal. There can be no legal custom justifying the seizure. Whether the person taking the coal for the railroad company can be held criminally liable presents a more difficult question, and one that is not entirely free from doubt. It is a question that has never been adjudicated in the courts. Section 170 of the Criminal Code of Illinois (1 S. & C. Rev. Stat., p. 1318) provides: "If any bailee of any bank bill, note, money or other property, shall convert the same to his own use, with intent to steal the same, or secretes the same with intent to do so, he shall be deemed guilty of larceny. ' ' Section 1 of the Act of June 19, 1891 (Laws of 1901, p. 100), provides: "That whoever, being a bailee of any chattel, money or valuable security, shall fraudulently take or convert the same to his own use or to the use of any other person other than the owner there- of, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be convicted thereof upon an indictment for larceny. ' ' The taking of coal by the employes of a railroad com- pany for the use of the company comes within the scope of the foregoing provisions. A custom of the company to appropriate coal in its possession as a carrier does not justify the taking, and such custom is not legal. Hendry v. State, 22 So., 647 (Fla.). Comm. v. Doane, 1 Cush., 5 ; See, also, KM Stone Co. v. Mack, 12 0. C. D., 177. To constitute the crime of larceny, however, a felonious intent is necessary. The taking or conver- sion must be animo furandi; that is, with an intention to steal. Phelps v. People, 55 111., 334 ; Mason v. State, 32 Ark., 238; Young v. State, 36 S. W., 272 (Tex.) 159 If the railroad company converted the coal with the intention of paying for the same, this would probably not constitute a felonious conversion as the intention to steal it not present. The question of intent, how- ever, is a question of fact for the jury. The main dif- ficulty is the securing of legal proof not only in respect to the taking but with respect to the felonious intent. It is asked that a form of contract be prepared to be used by members of the association. I have not been furnished with the form of contract now in use, and I cannot, therefore, advise whether or not such contract fully provides for the rights of the coal-buyer. The provisions of the contract cannot, however, affect the liability of the railroad company for the confisca- tion of the coal. It is not stated whether the contract referred to is the contract with the railroad company or with the coal company. In either event, it must be borne in mind that the agreement would have to be assented to by both parties, and conditions favorable to the buyer might not be assented to by the other party who may occupy the commanding position. RIGHT OF PERSON WHOSE NAME IS BLOWN IN BOTTLES TO PREVENT THE FURTHER USE OR REFILLING OF THE SAME. (Huss & Edler, May 23, 1903.) "Will you please let us know whether a party having a design patent on a bottle, with their name blown in the bottle, can stop anyone from buying above mentioned bottle empty from second- hand dealers and using it if one puts their own label on bottle designating the contents and using one's own name and not using name or brand of original packer who owns design patent on said bottle." The facts stated are not sufficient to form an opin- ion, nor is it stated whether the new contents are of like kind to the old. If the bottles are sold, a pur- chaser obtains a valid title and can use the bottles as his own property, subject to certain exceptions herein- 160 after stated. If the bottles are sold conditionally, a bona-fide purchaser from the vendee obtains a valid title, even though the condition be not complied with. If, however, there is an agreement on the part of the person to whom the bottles are delivered, to re- turn the bottles, the title does not pass, and a pur- chaser from such person obtains no title. People v. Cannon, 139 N. Y., 32. Westcott v. Thompson, 18 N. Y., 363. 21 Ency. of Law (1st ed.), pp. 567 et seq. Whether or not the person who purchases bottles from a second-hand dealer (assuming that he obtains a valid title) can use bottles for the same purposes as the original bottler, is not clearly settled. The French courts of justice have several times had the question before them. In the Court of Amiens, in 1872, it was held that where siphons of gaseous waters bear the mark of a manufacturer, another in the same business has not a right to avail himself thereof for his products, al- though he founds his claim so to do on the constant practice of the trade permitting the employment of siphons returned by consumers, in exchange for others sold to them. Pie v. Poulet, 20 Annales, 46. In the Tribunal Civil of the Seine, in 1879, it ap- peared in evidence that the defendants had obtained portions, of a genuine famous article, and, supplying the other portions made by himself, he marked the ar- ticle thus completed with the symbol of the first in- ventor. He thus succeeded in foisting an inferior ar- ticle on purchasers, and at the same time damaged the reputation of the owner of the mark. The court said it was fraud to use the mark, even on the genuine por- tion. In the Tribunal Correctiouel of Toulouse, in 1881, there was a case of selling in genuine bottles invested with false labels and fluid. The defendant was held liable under the penal code. Ministere Public and F. Prot. & Co. v. Corries, 26 Annales, 1895. 161 The courts of England have had several cases of this character before them. In Rose v. Loftus, 47 L. J. N. S., Ch. 567, an in- junction was issued to restrain the defendant from filling bottles with articles of his own manufacture, having indelibly impressed thereon the name of another trader who manufactured an article of like description, even though such trader placed on such bottles a label having his own name thereon. In Barrett v. Gomm (Ct. of App.), March 2, 1883 (74 Law Times Journal, p. 388) : "B. and G. were rival manufacturers of min- eral waters, which each of them sold in Lament's patent bottles, having blown or engraved on the glass Lament's name and trade mark, and also the name and trade mark of B. or G., as the case might be. Each of them also placed on the neck of every bottle sent out by him an adhesive label bearing his name. Two bottles of soda water were found at an inn, having the plaintiff's name and trade mark on the glass, but the defendant's label on the neck. There was no evidence to show that the bottles contained the defendant's soda water, or that he had filled or sold them, and he denied having filled or sold them know- ingly. Held (reversing the decision of Bacon, V. C.), tha't no injunction could be granted on the evidence. Semple, per Jessel, M. R., that, if a manufacturer of mineral waters gets in place of his own bottles foreign bottles bearing in the glass another man's name and trademark, he is entitled to refill them with his own mineral waters, and to sell them so refilled; at all events if he placed on them an adhesive label of his own so as to com- pletely cover the engraved name and trademark of the person who originally filled and sold the bottles." In Welch v. Knott, 4 Kay & Johnson, 747, the plain- tiffs, being manufacturers of soda water, stamped on their bottles their trade name, and pasted colored la- bels over the corks bearing their signature with certain 162 marks constituting their trade marks. The defendant purchased a lot of secondhand bottles, which had been sold to the public, with the name of the plaintiff moulded thereon. It was the custom of the trade, on selling bottles of soda water, to take in return for the bottles sold an equal number of similar bottles, with- out regard to what names might be moulded thereon. A temporary injunction was issued. It was held that the injunction must be dissolved on the ground that it was not shown that the bottles were sold when refilled, with any intention to deceive, or with probability of de- ception, although if a probability of deception had been caused though unintentionally, it is intimated an injunction would issue. In Rose v. Henley, cited 47 L. J. Ch., 577, the plain- tiff was a manufacturer of lime juice, who sold his ar- ticle in bottles moulded specially for him. The defend- ant systematically collected the plaintiff's empty bot- tles and sold them refilled with lime juice not of the plaintiff's preparation. An injunction was issued, re- straining the defendant from doing so. In Australia, the case of Hostetier v. Anderson was decided (1 Australian Jurist, p. 4). There the plain- tiffs, being American manufacturers of bitters, sold the bitters in bottles having the words "Dr. Hostet- ter's Stomach Bitters." The defendants bought up a considerable quantity of the plaintiffs' moulded bot- tles, and sold them refilled with other bitters and la- beled "Celebrated Stomach Bitters," but the labels did not in form or color resemble those used by the plain- tiffs. An injunction was issued on the ground that the use of the bottles in question was designed to make the customer believe that he was purchasing the gen- uine Hostetter bitters. In Evans v. Von Laer, 32 Fed., 153, the defendant purchased empty bottles, formerly filled with com- plainant's lime juice, upon which was blown upon the bottom, the name of complainant. The bottles were refilled by the defendant with his own lime juice, and defendant 's own label placed upon the bottle. The court said : 163 "While the defendant may buy in the market these bottles, and sell them again, filled with any- thing but lime juice, I do not think he should be permitted to put his own lime juice into a bottle stamped with the complainant's name and sell it. This may be said to be calculated to lead the pub- lic to believe that they are buying the complain- ant's lime juice, when, in point of fact, they are buying some other person's." To the same effect, see Sawyer Crystal Blue Co. v. Hubbard, 32 Fed., 388, where the defendant was re- strained from using bottles with the complainant's name on them for the same purpose as formerly used by the complainant. In Hostetter v. Distilling Co., 46 Fed., 188, the de- fendant sold bitters in bulk, and advised his customers to refill bottles formerly containing plaintiff's bitters with the bitters sold in bulk. Held that defendant should be enjoined. In 1884, in the Circuit Court of the United States for this District, there was a similar case. The de- fendant had bought from junk dealers genuine bottles that had contained " Warner's Safe Kidney and Liver Cure, ' ' and had filled them with some base concoction, and affixed counterfeits of the labels. He was mulcted in damages and costs. Warner v. Roehr, reported in the Chicago "Tribune" of March 20, 1884, and referred to in volume 29 Fed. Cas., p. 266. See Brown on Trade Marks, pp. 454-5. See also Sebastian's Law of Trade Marks, pp. 158-9. Cox's Manual of Trade Mark Cases, 157, 551, 608, 652. Hopkins on Unfair Trade, p. 202. It is apparent, from the foregoing cases, that the re- filling of moulded bottles with the same fluid as that originally contained therein, without any distinctive marks or labels, will be enjoined. Whether or not the court will enjoin the use of such bottles, where the person so using places his own 164 label thereon, is a more difficult question, and one not definitely settled. If there is an intention to deceive, or the use of the bottles is with the design to defraud, or to impose upon the public, the courts will interfere. A great deal depends upon the surrounding facts and circumstances. The principal question is this : Is the public de- ceived, or likely to be ? The so-called Bottlers' Law of Illinois, of 1873, was declared unconstitutional, in Lippman v. People, 175 111., 101. To remedy the imperfections in that law, the Legislature of Illinois, on May 11, 1901 (Session Laws of 1901, p. 316), passed a new law. Section 1 of that law provides for the registration and publica- tion of designs and trade marks on bottles, kegs, etc. Section 2 makes it unlawful for any person, with- out the written consent of the owner, to keep for sale any bottle, keg, etc., which shall have been registered and published under Section 1, or to use or fill, with any substance, commodity, or product, for the sale therein of such substance, commodity, or product, any such bottle, keg, etc., or to wantonly break or destroy, or to buy, sell or dispose of or traffic in any such bot- tle, keg, etc., or to deface, erase, obliterate or cover up or otherwise remove or conceal any such brand or trade mark for the purpose of destroying or remov- ing the evidence of the ownership of such article. Section 3 makes the acts defined by Section 2 prima facie unlawful. Section 4 provides for penalties for a violation of the Act. Section 5 provides for the issuance of a search war- rant. Section 6 provides for the issuance of injunctions to restrain violations of the Act. The above law was recently declared constitutional by Judge Chytraus of the Superior Court of Cook County, and the case is on its way to the Supreme Court, and will be probably submitted at the June term, 1903. Of course the law in question only applies where the 165 owner of the bottles, etc., has not parted with title to the same. If he has not parted with such title, and the law is upheld, then persons other than the registered owner cannot refill such bottles, and when so filled sell the same. NOTE: The decision of Judge Chytraus was reversed by the Su- preme Court and the law in question declared unconstitutional. See Horwich v. Walker Gordon Laboratory Company, 205 111., 497. Ed. WHETHER AN ORDER TAKEN BY A TRAVELING SALESMAN AND ACCEPTED BY THE HOUSE CONSTITUTES A CONTRACT AND WHETHER THE VENDOR HAS THE RIGHT TO CANCEL AN ORDER AFTER ACCEPTANCE WHERE UNFAVORABLE REPORTS ARE RECEIVED AS TO THE SOLVENCY OF THE BUYER. MEASURE OF DAMAGES FOR FAILURE OF VENDOR TO DE- LIVER. (Senour Manufacturing Company, May 25, 1903.) "Our attention has been attracted to an article in the Mercantile Adjuster for April entitled ' The rights of wholesale merchants in relation to cus- tomers with whom they have accepted orders or made contracts of sale when such merchants re- ceive unfavorable commercial reports upon the financial standing of such customers.' It goes on to state that these merchants have traveling sales- men who solicit orders from the retail trade, and that when these orders reach the credit man of the wholesale house, he examines into the record of the person ordering the goods, and if in receipt of unfavorable reports, he refuses to fill the order. The question here is whether he has the right to refuse the order or not. The article goes on to state that there is an in- teresting article in the Central Law Journal pub- lished Feb. 6th, 1903, being No. 6 of Volume 56 of that publication, which decides that question clearly. The case is that of Kavanaugh Mfg. Co. v. Rosen, 92 N. W. Rep., 788. The trial court gave information to the effect that the house had the 166 right to refuse the order if the reports were un- favorable. The Appellate Court reversed the trial court and held that it was the duty of the wholesale merchant to investigate the financial condition of defendants before making contract. If they fail to do this, nothing short of a breach of contract upon the defendant's part, or actual insolvency would excuse the plaintiff in fulfilling contract. It seems to us the question to decide here is, does the taking of an order by the travel- ing salesman, submitting it to the house, and the acknowledgment of the receipt of the same by the wholesale house, constitute making a contract? In other words does the order sent to the wholesale house by the traveling salesman and the accept- ance of the same by the wholesale merchant, con- stitute a contract which he is bound to fill, whether the party from whom the order was received is afterwards found to be unfavorable as a credit customer 1 If this is within your province to answer for one of your subscribers, we will be very glad to have your reply." If an order is obtained by a traveling salesman, it becomes a binding contract as soon as it is accepted by the seller. Such acceptance is a ratification of the act of the traveling salesman. While the goods remain in the possession of the seller he has a lien on such goods for the purchase price. The seller waives this lien, however, if the goods are sold on credit or he takes a note or other negotiable instrument in conditional payment. The lien of the seller may revive when the term of credit has expired, or the note has been dishonored, or the buyer becomes insolvent. The lien continues only so long as the goods remain in the possession of the seller. After that and until delivery to the buyer, the seller has the right of stoppage in transitu. This right can only exist, however, where the buyer is insolvent, unknown to the seller at the time of the sale, or arising afterwards. The right of stoppage in transitu, is sim- 167 ilar to the right of the seller's lien. In both cases, actual insolvency is indispensable; anything less than that is not sufficient. If, therefore, an order has been accepted and a binding contract has been entered into, the seller is not justified in refusing delivery and can- not stop the goods in transit unless the buyer is in- solvent. Mere unfavorable reports are insufficient. See: Tiffany on Sales, pp. 204-226; 21 Am. & Eng. Ency. of Law (1st Ed.), pp. 601, 607; 23 Am. & Eng. Ency. of Law, p. 923 ; 2 Benjamin on Sales, p. 668, et seq.; Kavanaugh v. Rosen, 92 N. W. (Mich.), 788. As a "business" rather than a "legal" proposition, it is a question for the seller whether he had not better take the chance of a law-suit for damages than pos- sibly lose the purchase price. In case of an action for damages for breach of contract, the measure of dam- ages is the difference between the contract price and what similar merchandise can be bought for in the market. If similar merchandise cannot be bought in the market, the measure of damages is the loss of the profit. WHETHER A RAILROAD COMPANY IS OBLIGED TO REDEEM COUPONS ON MILEAGE TICKETS WHEN THE USER HAS NOT USED THE ENTIRE MILEAGE. (Pitkin & Brooks, May 26, 1903.) "In the opinion of Levy Mayer, General Coun- sel, March 23, 1903, in reference to mileage tickets being used by other salesmen than the one to whom issued, he states that 'It is made the duty of the Railroad Company by statute in this state (Rev. Stat., Chap 114, Sec. 116), to provide for the redemption of unused tickets.' In connection with this question we beg to ask, what the law is regarding the redemption of coupons issued to salesmen, to be redeemed by the railroad com- pany, according to their rules (when the user 168 has traveled 2,000 miles or more), when such owner or user has not traveled the 2,000 miles and does not use any more interchangeable mile- age. Is the railroad company obliged to redeem these coupons?" The law provides : "That it shall be the duty of the owner or own- ers of railroads or steamboats, by their agents or managers, to provide for the redemption of the whole, or any parts of coupons of any ticket or tickets, as they may have sold, as the pur- chaser, for any reason, has not used, and does not desire to use, at a rate which shall be equal to the difference between the price paid for the whole ticket and the cost of a ticket between the points for which the proportion of said ticket was actually used; and the sale by any person of the unused portion of any ticket otherwise than by the presentation of the same for redemption, as provided for in this section, shall be deemed to be a violation of the provisions of this act, and shall be punished as is hereinbefore provided: Provided, that this act shall not prohibit any per- son who has purchased a ticket from any agent authorized by this act with the bona fide intention of traveling upon the same, from selling any part of the same to any other person. Any railroad or steamboat company that shall, by any of its agents in this state, refuse to re- deem any of its tickets or parts of tickets, as pre- scribed in section five of this act, shall pay a fine of five hundred dollars for each offense, to the People of the State of Illinois; and it shall be unlawful for said company, subsequent to such refusal, to sell any ticket or tickets in this state until such fine is paid." Sees. 116 and 117, Kurd's Rev. Stat. of 1901, pp. 1389, 1390. The railroad company is therefore entitled to de- duct the amount of the regular rate between the points for which the ticket was actually used, from the amount paid for the whole ticket. 169 AS TO WHAT CONSTITUTES THE LEGAL BATE UNDER THE INTERSTATE COMMERCE ACT AND THE DUTY OF THE SHIP- PER TO ASCERTAIN THE SAME. (Hibbard, Spencer, Bartlett & Company, May 26, 1903.) "Will you kindly note the enclosed copies of correspondence which are quotations from differ- ent railroads, naming different rates on the same property between the same points. These rates are supposed to be made jointly and alike by the various routes. Such discrepancies are of almost daily occurrence in the conduct of our business, and it occurs to us that it would be of interest to members of the association to have a legal opin- ion on the following points : What obligation has the shipper under the new law (Elkins Bill) to ascertain whether rates quoted are covered by legal tariff? In case like the one referred to, is the shipper at liberty to take the lowest quotation 1 "If he bases his sale upon the lowest quotation and it proves to be an error, or is not covered by legal tariff, and he is out of pocket thereby, has he any recovery? In case two tariffs are found naming different rates on the same goods between the same points, which is the legal one? Is the railroad company liable for demanding or collecting higher than the legal tariff in the same manner as for collecting lower than the legal tariff?" I also acknowledge receipt of the communication of Barrett Mfg. Company, which is as follows : "The question as to what effect the Elkins law will have on both shippers and carriers is one that is being daily discussed by both parties at interest, and we would respectfully ask that the matter be submitted to the General Counsel, Mr. Levy Mayer, for an opinion, which we think would be of interest to all members of the Association." 170 As both communications relate to the same subject matter, I will answer both together. The Interstate Commerce Act was approved Febru- ary 4, 1887, and amended March 2, 1889. Section 1 of that Act defines what carriers are sub- ject to the Act, being those engaged in commerce be- tween the States. Section 2 prohibits unjust discriminations between persons under substantially similar circumstances and conditions. Section 3 prohibits any unreasonable preference or advantage to any person or locality, or to any par- ticular description of traffic, or any undue or unrea- sonable prejudice or disadvantage. It also provides that carriers shall afford all reasonable, proper and equal facilities for the interchange of traffic. Section 4 prohibits a greater charge for a short haul than for a haul for a longer distance. Section 5 prohibits the pooling of freights. Section 6 provides as follows : "That every common carrier subject to the pro- visions of this Act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of pas- sengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules and regulations which in anywise change, affect or determine any part of the aggregate of such aforesaid rates, and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicu- ous places, in every depot, station or office of such carrier, where passengers or freight respectively are received for transportation, in such form that 171 they shall be accessible to the public, and can be conveniently inspected. ' ' Section 6 also makes the same provisions as to pub- lishing schedules by carriers receiving freight in the United States to be carried through a foreign country. Section 6 further provides that no advance shall be made in published rates, except after ten days' public notice, and no reduction except after three days' no- tice. Section 6 further provides : ' i And when any such common carrier shall have established and published its rates, fares and charges in compliance with the provisions of this section, it shall be unlawful for such common car- rier to charge, demanad, collect or receive from any person or persons, a greater or less compen- sation for the transportation of passengers or property, or for any services in connection there- with, than is specified in such published schedules of rates, fares and charges as may at the time be in force. Every common carrier, subject to the provi- sions of this Act shall file with the Commission hereinafter provided for copies of its schedules of rates, fares and charges which have been estab- lished in compliance with the requirements of this section, and shall promptly notify said Commis- sion of all changes made in the same. Every such common carrier shall also file with said Commis- sion copies of all contracts, agreements, or ar- rangements with other common carriers in rela- tion to any traffic affected by the provisions of this Act to which it may be a party. ' ' The same provisions as to publication of tariff, ad- vance or reduction in rates, and as to compensation greater or less than schedules are made with respect to joint rates. The remainder of Section 6 relates to the remedies for failure of the carrier to file or publish its sched- ules as required by law. 172 Section 7 prohibits any contract to prevent the con- tinuous carriage of freights. Section 8 provides that a carrier doing or failing to do, or permitting any act declared unlawful, or omit- ting to do any act required to be done shall be liable to the person injured for the amount of damages caused thereby. Section 9 provides for making complaints to the Commissions or pursuing remedies in court for a vio- lation of the Act. Section 10 relates to the penalties for a violation of the Act. It further provides as follows : "Any person and any officer or agent of any corporation or company who shall deliver prop- erty for transportation to any common carrier subject to the provisions of this Act, or for whom as consignor or consignee any such carrier shall transport property, who shall knowingly and wil- fully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent, or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor and shall, upon conviction thereof in any court of the United States of competent juris- diction within the district within which such of- fense was committed, be subject for each offense to a fine of not exceeding five thousand dollars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court. ' ' Penalties are also provided against the carrier. The remaining sections of the Act relate to the cre- ation of the Interstate Commerce Commission, pre- scribe their duties and provide various remedies for violations of the Act. Section 1 of the Act of February 19, 1903, known as 173 the "Elkins Law" (Session Laws 57th Congress, Chap. 708, p. 847) provides: ' ' That anything done or omitted to be done by a corporation common carrier, subject to the Act to regulate commerce and the Acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent or person acting for or em- ployed by such corporation, would constitute a misdemeanor under said Acts or under this Act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof, it shall be subject to like penalties as are pre- scribed in said Acts or by this Act with reference to such persons, except as such penalties are here- in charged. The wilful failure upon the part of any carrier subject to said Acts to file and publish the tariffs or rates and charges as required by said Acts or strictly to observe such tariffs until changed according to law, shall be a misdemeanor and upon conviction thereof the corporation of- fending shall be subject to a fine of not less than one thousand dollars nor more than twenty thou- sand dollars for each offense; and it shall be un- lawful for any person, persons or corporation to offer, grant or give, to solicit, accept or receive any rebate, concession or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier subject to said Act to regulate commerce and the Acts amendatory thereto whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to regulate commerce and the Acts amenda- tory thereto, or whereby any other advantage is given or discrimination is practiced. Every per- son or corporation who shall offer, grant or give, or solicit, accept or receive any such rebates, con- cession or discrimination, shall be deemed guilty of a misdemeanor and on conviction thereof shall 174 be punished by a fine of not less than one thou- sand dollars nor more than twenty thousand dol- lars. In all convictions occurring after the pas- sage of this Act for offenses under said Acts to regulate commerce, whether committed before or after the passage of this Act, or for offenses under this section, no penalty shall be imposed on the convicted party other than the fine prescribed by law, imprisonment wherever now prescribed as part of the penalty being hereby abolished. Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transporta- tion may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined and punished in either jurisdiction in the same manner as if the offense had been actu- ally and wholly committed therein. In construing and enforcing the provisions of this section the act, omission or failure of any officer, agent or other person acting for or em- ployed by any common carrier acting within the scope of his employment, shall in every case be also deemed to be the act, omission or failure of such carrier, as well as that of the person. When- ever any carrier files with the Interstate Com- merce Commission, or publishes a particular rate under the provisions of the Act to regulate com- merce, or Acts amendatory thereto, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents in any prosecution begun under this Act, shall be con- clusively deemed to be the legal rate, and any de- parture from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this Act. ' ' Section 2 provides that in enforcing the provisions of the Interstate Commerce statute, all persons inter- ested or affected by the rate may be made parties. 175 Section 3 provides for the bringing of suits to en- force the provisions of the Act, and for the compulsory attendance of witnesses, etc. It is made the duty of the carrier to print and keep for public inspection schedules showing its rates and charges, which schedules are to be filed with the Inter- state Commerce Commission. The Elkins law provides that the rates contained in the schedules published and filed under the Interstate Commerce Act shall conclusively be considered the legal rates. The shipper is, therefore, under the obligation to ascertain the legal rate from an inspection of the tariff. He cannot rely upon the quotations of the car- riers' agents. If he receives two quotations for the same shipment, it is his legal duty to determine which is the schedule rate. The schedule which is published and filed with the Commission is the " legal" tariff. Under the law as construed by the United States Supreme Court, carriers are not only entitled to exact their proper established rates, but they are bound to do so and a lower rate stated in a bill of lading issued by the carrier to the shipper will not be enforced. Gulf C. & 8. F. R. Co. v. Hefley, 158 IT. S., 98. Suffern, Hunt & Co. v. Ind. etc. Ry. Co., 1 Int. C. C. Rep., 255, 278. In the case last cited it is said : ' ' Shippers and consignees cannot, therefore, de- pend for the lawful rate or charge upon what may be quoted by the carrier's agent, but they must be guided by the published rate sheets themselves. Such interpretation of the law emphasizes the legal duty of the carriers to make their schedules of rates comply precisely with the mandatory pro- visions in the statute concerning the contents and publication of such schedules, in order that ship- pers may, upon inspection, be enabled to readily and accurately determine what rates, and what transportation rules affecting rates, are actually in force for any particular service." Section 8 of the Interstate Commerce Act provides 176 that any carrier subject to the Act, who does or causes to be done anything in the Act declared to be unlawful, or omits to do any act required to be done, shall be liable to the person injured for the full amount of the damages sustained in consequence of any such viola- tion of the provisions of the Act. If the carrier exacts from the shipper a charge in excess of the rates prescribed by the legal tariff the shipper can recover back the excess. Such a payment cannot be considered a voluntary payment. The car- rier is liable under the law in the same manner for collecting a higher rate as for collecting a lower rate. Suffern v. Indiana, etc., Ry. Co., 7 Int. C. C. Eep., 255. The Barrett Manufacturing Co. ask an opinion as to the effect of the Elkins Law. My opinion is not asked on any particular question. The provisions of the law are quoted above. If there is any question not answered in this opinion, arising upon a reading of the law, I shall be glad to advise further. FORMATION OF SUBSIDIARY CORPORATION IN FOREIGN STATE TO OBVIATE COMPLIANCE WITH FOREIGN CORPORATION LAW AND RIGHT OF ILLINOIS CORPORATION TO HOLD STOCK IN SUCH CORPORATION. (Illinois Manufacturers' Association, May 26, 1903.) "As members of the Illinois Manufacturers' Association, we take the liberty of writing you for your opinion relative to the laws of Kansas governing foreign corporations. We are at the present time doing business in Kansas, but are organized under the laws of Illinois. As you are aware, the laws of Kansas relating to foreign cor- porations are very severe regarding the payment of a large amount for license, the filing of state- ments, annual reports, etc., and what we would like to know is as to whether or not, in your opin- ion, we can organize an independent corporation 177 in Kansas, * * with headquarters at Wichita, Kansas, and complying with the State laws gov- erning the domestic corporations." I express no opinion as to whether or not it is ad- visable to form an independent corporation in Kan- sas rather than comply with the foreign corporations laws of that State, but confine myself to the question as to whether or not there are any legal obstacles to the formation of such a corporation. There is but one objection to the formation of an independent corporation in Kansas. Under the laws of Illinois, a corporation organized thereunder cannot hold stock in another corporation, or control another corporation through the ownership of its stock. The Illinois corporation could not, therefore, legally own or hold the stock of the Kansas corporation. Such own- ership could not be attacked, however, except by the State or by the stockholders of the corporation. There is no legal objection to persons connected with or even owning the entire stock of the Illinois company, owning also the stock of the Kansas company. WHETHER IT IS ADVISABLE FOR AN ILLINOIS CORPORATION ESTABLISHING A BRANCH IN MICHIGAN TO COMPLY WITH THE FOREIGN CORPORATION LAW OF MICHIGAN BATHER THAN DO BUSINESS THROUGH THE MEDIUM OF A PART- NERSHIP. RIGHT OF ILLINOIS CORPORATION TO HOLD STOCK IN OTHER CORPORATIONS. (Illinois Manufacturers' Association, May 27, 1903.) "We are a corporation organized under Illinois laws as wholesale dealers and manufacturers and desire to go into manufacturing business in the State of Michigan all goods put up there to be sold by our Chicago house, deliveries may be made direct from Michigan or goods may be shipped to us in Chicago. No sales to be made by the Mich- igan house. Is it practicable to conduct said man- ufacturing business in Michigan under our corpo- ration name as copartners? What embarrass- 178 ments, complications or annoyances (if any) might arise under the law by such a course? Do you advise rather to comply, as a foreign corporation, with state laws of Michigan? Ours is strictly a close corporation, all the stock being held by its officers, who would comprise the members of the proposed firm. ' ' There is no legal objection to the formation of an actual partnership to be composed of the members of the present corporation for the purpose of transact- ing business in Michigan. There being no objection thereto on the part of, the existing corporation, its name (which does not appear on its face to indicate a corporation) can be legally used to designate the pro- posed partnership in Michigan. If a Michigan corpo- ration is formed, the Illinois corporation, in a strictly legal sense, would have no right as a corporation to own the stock of the Michigan corporation. Under our law a corporation (with certain exceptions not now pertinent) cannot own stock in another corporation. Such ownership, however, can only be attacked by the state, or by a non-consenting stockholder. In the case of private corporations I have never heard of a case where the authorities of this state have attempted to prevent the ownership of stock in another corporation. In several states other than Illinois, their corporations are expressly authorized to hold stock in other corpo- rations. Of course, the members of the partnership would be individually liable, as partners, for the debts of the firm. Whether or not it is advisable to comply with the corporation law of Michigan rather than to do busi- ness through the medium of a partnership, is a ques- tion of business policy and convenience. In either event, it will be necessary to pay taxes on both real and personal property located in Michigan. In case of a compliance with the foreign corporation law of Michigan, the corporation would have to pay one-half mill on each dollar of the proportion of its capital stock represented by the property owned and used and 179 business transacted in Michigan, which cannot be less than $25. Laws of Michigan (Act No. 206), 1901, June 6, 1901. Why not have the Illinois corporation (if its charter covers the subject-matter) do the proposed business in Michigan I That would seem to be the simplest way under the circumstances. RIGHT OF EMPLOYEE TO MAKE DEDUCTIONS FROM THE WAGES OF EMPLOYES ON ACCOUNT OF MISTAKES, ERRORS, ETC. CONSTITUTIONALITY OF LAW PROHIBITING SUCH DEDUCTIONS. (Thayer & Jackson Stationery Co., May 28, 1903.) ''Will you please obtain the opinion of the at- torney of the association on the question whether mistakes, damages and other losses caused by er- rors of employes can be deducted from their pay, when the exact expense of the same is known." The legislature of 1891 passed an Act (Approved May 28, 1891, in force July 1, 1891,) entitled: ''An Act to provide for the payment of wages in lawful money, and to prohibit the Truck Sys- tem, and to prevent deductions from wages, ex- cept for lawful money actually advanced." (Kurd's Rev. Stat., 1901, p. 879, laws of 1891, p. 212.) Sections 1, 2 and 7 of that Act, relating to the so- called " Truck System," were declared unconstitu- tional by the Illinois Supreme Court in Frorer v. Peo- ple, 141 111., 171, s. c., 16 L. E. A., 492. Sections 3, 4 and 5 were, however, not passed upon by the Supreme Court, and as they are separable from that part of the Act declared unconstitutional, they are not affected by the decision. Sections 3, 4 and 5 provide 'Section 3. It shall be unlawful for any per- son, company, corporation or association employ- ing workmen in this State, to make deductions from the wages of his, its or their workmen, ex- 180 cept for lawful money, checks or drafts actually advanced without discount, and except such sums as may be agreed upon between employer and em- ploye which may be deducted for hospital or re- lief fund for sick or injured employes. Section 4. Any deductions made from the wages of any workman of this State, except as provided in Section three (3) of this Act, may be recovered in any appropriate action before any court of com- petent jurisdiction, together with such reasonable attorney fee as the court in its discretion shall think proper, and no offset or counter-claim of any kind shall be allowed in such action or proceeding. Section 5. All attempts to evade or avoid the provisions of this Act, by contract or otherwise, shall be deemed a violation thereof, and for every violation, in addition to the civil remedy pro- vided for in Section four (4) there shall, on con- viction, be a fine imposed of not less than fifty (50) nor more than two hundred (200) dollars for each offense." Section 3, therefore, makes it unlawful for an em- ployer to deduct any sum from wages due, except for money ''actually advanced without discount/' and ex- cept also, such sums "as may be agreed upon between employer and employe, which may be deducted for hospital or relief fund for sick or injured employes." Deductions for any other purpose are made unlawful. The employer who has paid the employe his wages be- fore they are due, is therefore prohibited from making any agreement with such employe for the payment of interest on the amount advanced. The employer is also prohibited from making an agreement with his employes to deduct any sum from his wages no matter for what cause the deduction may be made. If. an employer and employe entered into an agreement, providing that the amount of all damages caused by the wilful or negligent conduct of the em- ploye should be deducted from his wages, such agree- ment would be unlawful under the statute. In my opinion, the law in question, is an unlawful 181 interference with the freedom of contract and is there- fore unconstitutional and void. Comm. v. Perry (Mass.), 14 L. R. A., 325. Section 6 of the law provides : "Nothing in this Act shall be so construed as to include the business of farmers, or farm labor- ers, or servants." This exception in the statute falls within the con- demnation of the United States Supreme Court in Connolly v. Union Sewer Pipe Co., 184 U. S., 540. The State cannot exempt from a statute persons in a sim- ilar situation, as the persons sought to be regulated. The State has the right to classify, but such classifica- tion must rest upon some reasonable difference be- tween the persons or subjects sought to be classified. The classification cannot be arbitrarily made. The law must be general and uniform in its operation, and apply to all who occupy a similar situation. In my opinion, the exemption of farmers, farm laborers and servants from the operation of the law, renders the law unconstitutional and void. Connolly v. Sewer, Pipe Co., 184 U. S., 540. Cotting v. Kansas City Stock Yards Co., 183 U. S., 79. Frorer v. People, 141 111., 171. Millett v. People, 117 111., 294. Braceville Coal Co. v. People, 147 111., 66. State v. Loomis (Mo.), 21 L. E. A., 789. The question must therefore be decided without ref- erence to statute law. The employer has the right to deduct from the wages of the employe in any case where he has a legal claim against the employe, and where such claim would be available by way of set-off, recoupment or counter-claim in a suit by the employe for his wages. The claim, however, must be a legal claim, and one which would form the basis of an in- dependent suit against the employe. The employer has not the right to make arbitrary deductions, nor impose fines or penalties. Whether or not the claim of the employer is avail- able by way of set-off, recoupment or counter-claim, de- 182 pends upon the nature of the claim. If the damages are ' ' liquidated ' ' they can be set-off, even though they arise out of a different transaction than the one in suit. "Liquidated" damages are such as are certain, or which can be made certain by mere calculation, or such as have been agreed upon in advance by the par- ties, and which do not require the intervention of a jury to ascertain. "Unliquidated" damages can be set off or recouped, as the case may be, when the damages arise out of the same transaction. The employer, therefore, has the right to deduct from the wages of the employe the amount of the loss or damage for which the em- ploye is legally liable, whenever such damages are "liquidated," no matter out of what transaction the liability may arise. Where the damages are "un- liquidated," the deduction can only be made where the liability grows out of the subject matter of the employment. If the employer wrongfully deducts any sum from the wages of the employe, he will be liable for attor- ney's fee in a suit for the wages due. (Hurd's Rev. Stat., 1901, pp. 879, 1117.) The question is not asked, and I express no opinion upon the effect in a particular case of the statute of this State (Sec. 14, Chap. 62, Kev. Stat., 1901, Garnish- ment Act), which allows the head of a family an ex- emption of $15.00 per week for wages, where the em- ployer has been garnished. NOTE: The Supreme Court of Illinois on February 17, 1904, in Kellyville Coal Co. v. Harrier, 207 111., 624, declared the sections above referred to unconstitutional. Ed. THE AFFIDAVIT REQUIRED UNDER THE ANTI-TRUST LAW AND THE FORM OF THE SAME. (Illinois Manufacturers' Association, May 29, 1903.) "If a corporation is unable truthfully to make the affidavit called for by the anti-trust laws of this State, or is in doubt as to its ability to make 183 such an affidavit owing to time elapsed since the date specified in the affidavit after which no agree- ment should be made, and the talks, partial agree- ments, arrangements on various matters possibly included in the affidavit that may have taken place and which in the ordinary conduct of business are almost sure to have taken place, should such cor- poration ignore the affidavit entirely, or would you advise that the affidavit be returned with some such notation thereon, as follows : ' = Company respectfully submits that it is in doubt as to its liability to make this affi- davit,' enclosing the filing fee of $1.00. Would this clear the corporation of all liability to pay the fine of $50 per day? Would it place the cor- poration in a weaker position, if attacked! Would it, in your opinion, be likely to cause attack on such corporations ? What course would you advise a corporation so situated to follow?" The Act provides that the officer of the corporation shall make an affidavit that the corporation "has not, since the day of (naming the day upon which this Act takes effect), created, entered into or become a member of, or a party to, and was not, on the day of , nor at any day since that date, and is not now, a member of or a .party to any pool, trust, agreement, combina- tion, confederation or understanding with any other corporation, partnership, individual or any other person or association of persons, to regu- late or fix the price of any article of merchandise or commodity; and that it has not entered into or become a member of or a party to any pool, trust, agreement or contract, combination or con- federation to fix or limit the amount or quantity of any article, commodity or merchandise to be manufactured, mined, produced or sold in this State ; and that it has not issued and does not own any trust certificates, and for any corporation, agent, officer or employe or for the directors or stockholders of any corporation, has not entered 184 into and is not now in any combination, contract or agreement with any person or persons, corpo- ration or corporations, or with any stockholder or director thereof, the purpose and effect of which said combination, contract or agreement would be to place the management or control of such combination or combinations, or the manufactured product thereof, in the hands of any trustee or trustees with the intent to limit or fix the price or lessen the production and sales of any article of commerce, use or consumption, or to prevent, re- strict or diminish the manufacture or output of any such article. ' ' If the corporation has not violated any of the pro- visions of the Act, it can truthfully make the affidavit. If it has violated the Act it can make the affidavit and it will be protected from prosecution as the law pro- vides : "Provided, that no corporation, firm, associa- tion or individual shall be subject to any criminal prosecution by reason of anything truthfully dis- closed by the affidavit required by this Act, or truthfully disclosed in any testimony elicited in the execution thereof." If the corporation is in doubt as to whether or not it has violated the law, it is not bound by the form of the affidavit which the Secretary of State sends to each corporation. It can add to the affidavit a statement that it has entered into a certain arrangement or has made a certain contract, and thus it will be protected from prosecution for the offense disclosed. In my opinion, no good purpose would be subserved by stating that the corporation is in doubt as to its ability to make the affidavit. Such procedure would not be in compliance with the law, and would not pro- tect the corporation against the penalties of the Act. Although the Supreme Court of Illinois has de- clared the law in question constitutional, the matter has not been adjudicated by the United States Su- preme Court. It is expected that in due course the matter will be finally adjudicated there. 185 AS TO WHETHER THE THURINGIA INSURANCE TO THE EF- FECT THAT A LANDLORD CANNOT RECOVER ON A FIRE IN- SURANCE POLICY WHERE HIS TENANT VIOLATES ONE OF ITS PROVISIONS, IS GOOD LAW. (Selz, Schwab & Co., May 29, 1903.) "As insurance man for this firm I write for further information about the Thuringia insurance decision. The opinion submitted by Mr. Levy Mayer seems to be a statement of the fact but offers no opinion as to whether the decision in this case is considered good law, and whether it could not be knocked out." This decision is based upon the theory that where a landlord insures his premises and covenants that there will not be kept on the insured premises any naphtha, benzine or other inflammable product, the landlord is liable for the acts of his tenants or other persons who occupy the premises under his authority. This doctrine is sustained by a great many authori- ties. In Liverpool & London Insurance Co. v. Gunther, 116 IT. S., 113, 128, the United States Supreme Court in passing upon this question said: "A violation of these prohibitions by any one permitted by the assured to occupy the premises, is a violation by the assured himself. The com- pany stipulates that it will not assume the risk arising from the presence of the articles prohib- ited, and if they are brought upon the premises in violation of the policy by one in whose pos- session and control the latter have been placed by the insured, he assumes the risk which the com- pany has refused to accept." See also to the same effect cases cited in Vol. II, Eose's notes to the U. S. Reports, p. 18, and cases cited in Thuringia Ins. Co. v. Norway sz, 104 111. App., 390. In my opinion the question is correctly decided. NOTE: The decision in question was affirmed by the Supreme Court of Illinois. See 204 111., 334. Ed. 186 AS TO WHETHER THE ACTS OF A CO-TENANT IN KEEPING BENZINE ON THE PREMISES, CAN AFFECT THE RIGHT OF THE TENANT TO RECOVER ON HIS INSURANCE POLICY. (Chas. Emmerich & Co., May 29, 1903.) "We note the opinion of Mr. Levy Mayer in ref- erence to the 'Thuringia Insurance Decision,' printed copy of which was recently sent us. Will you kindly advise us if this decision applies also to co-tenants if another tenant in the building violates the provisions of the policy?" I do not fully understand the question. If the in- surance is taken out by a tenant and the policy pro- vides that there will not be kept or allowed upon the insured premises any naphtha or other inflammable product, the insured will not be liable for the acts of a co-tenant who keeps such product in another part of the building occupied by such co-tenant. The Thuringia Insurance Co. decision is based upon the theory that the landlord who insures his premises and covenants that no inflammable product will be kept thereon, is liable for the acts of his tenants who occupy the premises by his permission. The rule can- not be extended to acts of another tenant over whom the insured has no control and who sustains no relation to such tenant. The covenant in the policy will relate only to the premises covered by the policy and occu- pied by the insured or his tenants, and will not, unless so provided in the policy, be extended to other prem- ises in the same or adjoining buildings. NOTE: See note to preceding opinion. Ed. CONSTITUTIONALITY OF THE CHILD LABOR LAW OF ILLINOIS. (Streator Bottle & Glass Company, June 2, 1903.) "We wish to have an opinion on the legality of the child labor law passed at last session of the legislature, known as House Bill No. 634, intro- duced by the committee on labor and industrial 187 affairs March 11, 1903. This is an act to regulate the employment of children in the State of Illinois, and to provide for the enforcement thereof. Sec- tion 10 of this bill affects our business very much. By referring to said bill you will notice it reads as follows : 'No person under the age of 16 years shall be employed, permitted or suffered to work at any gainful occupation more than 48 hours per week, or more than eight hours in any one day, or before the hours of 7 o 'clock in the morning, or after the hours of 7 o 'clock in the evening. ' Under the present law, we are permitted to employ boys over fourteen years of age in our glass factories both day and night. These boys work at the pres- ent time 8| hours per day, and the same at night. The enforcement of this last mentioned law, passed by the legislature, will work great injury to our business, as well as several other manufacturers in the same line in the state of Illinois. We are of the opinion that the portion of the new law, which makes the working hours of boys over 14 and under 16, eight hours per day, and between certain hours, and prevents boys of the same age from working at night, is class legislation, and not constitutional. Will you kindly secure for us an opinion from the Illinois Manufacturers' Association's attorney, covering the inquiry we have made 1 ?" The act was approved May 15, 1903 (in force July 1, 1903), and is entitled: 4 'An Act to regulate the employment of chil- dren in the State of Illinois, and to provide for the enforcement thereof. ' ' Section 1 provides that no child under 14 years of age shall be employed "at any gainful occupation in any theatre ! mercantile establishment, store, office, * * man- ufacturing establishment * * ' factory or work- shop or as a messenger or driver therefor within this state. That no such child shall be employed at any work performed for wages or other com- 188 pensation to whomsoever payable, during any por- tion of any month when the public schools of the town, township, village or city in which he or she resides are in session, nor be employed at any work before the hour of seven o 'clock in the morn- ing or after the hour of six o 'clock in the evening. Provided that no child shall be allowed to work more than eight hours in any one day. ' ' Section 2 provides that a register shall be kept of the name, age and residence of every child between the ages of 14 and 16, and provides that no such child shall be employed unless there is first produced and placed on file an age and school certificate as herein- after provided. Section 3 provides that every employer employing more than five children between the ages of fourteen and sixteen years, shall keep posted in a conspicuous place in every room in which such help is employed, a list containing the name, age and place of residence of such children in such room. Section 4 provides that no such child shall be em- ployed unless there is produced and kept on file an age and school certificate, as hereinafter prescribed, and unless there is kept on file and produced on de- mand of the factory inspectors, a complete and cor- rect list of all minors under the age of sixteen so em- ployed who cannot read at sight and write legibly sim- ple sentences, unless such child is attending night school as hereinafter provided. Section 5 provides that an age and school certificate shall be approved only by the superintendent or by a person authorized by him in writing, or where there is not a superintendent, by a person authorized by the School Board. The superintendent or principal of a parochial school shall also have the right to approve such certificate and shall have the same powers to ad- minister oaths as the superintendent for children at- tending parochial schools. No person shall approve a certificate for a child about to enter his own estab- lishment or a firm where such person is a member, officer or employe. 189 Section 6 provides that a certificate shall not be issued unless satisfactory proof of age is furnished. Section 7 provides that the age and school certificate shall not be approved until there is presented a school attendance certificate, a duplicate of which shall be forwarded to the State Factory Inspector's Office, and the form of which is prescribed in the Act. In the case of a child who is illiterate, the certificate shall state that such child is regularly attending even- ing school. Section 8 provides that no child between the ages of fourteen and sixteen who is illiterate shall be em- ployed while a public evening school is in session. Section 9 prescribes the duties of the state factory inspectors as to the enforcement of the Act. Section 10 provides : " Hours of Labor. No person under the age of sixteen years shall be employed or suffered or per- mitted to work at any gainful occupation more than forty-eight hours in any one week, nor more than eight hours in any one day; or before the hour of seven o'clock in the morning or after the hour of seven o'clock in the evening. Every employer shall post in a conspicuous place in every room where such minors are employed a printed notice, stating the hours required of them each day of the week, the hours of commencing and stopping work and the hours when the time or times allowed for dinner or for other meals be- gins and ends. The printed form of such notice shall be furnished by the state inspector of fac- tories, and the employment of any such minor for longer time in any day so stated shall be deemed a violation of this section. ' ' Section 11 provides : "Employments Forbidden Children Under Sixteen Years of Age. No child under the age of sixteen years shall be employed at sewing belts, or to assist in sewing belts, in any capacity what- ever; nor shall any child adjust any belt to any machinery; they shall not oil or assist in oiling, 190 wiping or cleaning machinery ; they shall not ope- rate or assist in operating circular or band saws, wood-shapers, wool-jointers, planers, sandpaper or wood-polishing machinery, emery or polishing wheels used for polishing metal, wood-turning or boring machinery, stamping machines in sheet metal and tinware manufacturing, stamping ma- chines in washer and nut factories, operating cor- rugating rolls, such as are used in roofing facto- ries, nor shall they be employed in operating any passenger or freight elevators, steam boilers, steam machinery, or other steam generating apparatus, or as pin boys in any bowling alleys ; they shall not operate or assist in operating dough brakes, or cracker machinery of any description; wire or iron straightening machinery; nor shall they operate or assist in operating rolling mill machinery, punch or shears, washing, grinding or mixing mill or calendar rolls in rubber manufac- turing, nor shall they operate or assist in operat- ing laundry machinery; nor shall children be em- ployed in any capacity in preparing any composi- tion in which dangerous or poisonous acids are used, and they shall not be employed in any capac- ity in the manufacture of paints, colors or white lead; nor shall they be employed in any capacity whatever in operating or assisting to operate any passenger or freight elevator; nor shall they be employed in any capacity whatever in the manu- facture of goods for immoral purposes, or any other employment that may be considered danger- ous to their lives or limbs, or where their health may be injured or morals depraved; nor in any theatre, concert hall, or place of amusement where- in intoxicating liquors are sold; nor shall females under sixteen years of age be employed in any capacity where such employment compels them to remain standing constantly." Section 12 provides : "Prima Facie Evidence of a Child's Employ- ment. The presence of any person under the age 191 of sixteen years in any manufacturing establish- ment, factory or workshop, shall constitute prima facie evidence of his or her employment therein." Section 13 provides that it shall be the duty of the State Factory Inspector to enforce the act. Section 14 prescribes a penalty for the offense of em- ployng a child in violation of the act, of a fine of not less than $5 nor more than $25. A failure to produce any age or school certificate or lists required by the act is punishable by a fine of not less than $5 nor more than $50. A false certification is punishable by a fine of not less than $5 nor more than $100. Any person, firm or corporation, whether for him- self or another, who violates or fails to comply with the provisions of the act or who refuses admittance to premises or otherwise obstructs the factory inspectors in the performance of their duties, is subject to a fine of not less than $5 nor more than $100 for each of- fense. The act in question is passed under the police power of the state. The extent of the exercise of that power rests within the wise discretion of the legislative body. Under this power the legislature supervises the peace, good order, health, morals and general welfare of the community, and the courts will not review the legiti- mate exercise of this legislative discretion. In my opinion the courts will hold that the act under consideration tends to promote the health and morals of the community. Laws similar in spirit have been sustained by the courts laws looking to the compul- sory education of children by their parents and to the punishment of parental cruelty or neglect. Of the same nature are laws limiting and regulating the em- ployment of children in factories or workshops. In- cidental to and in virtue of its sovereignty, the State as parens patriae owes a duty to all its citizens, and this duty may be legitimately invoked for the protec- tion of children or any other dependent class. In my opinion there is no undue restraint placed on personal liberty by this law because the law does not transcend the proper exercise of the police power. I 192 do not think that the law can be attacked on the ground that it is in restraint of the right to contract. Similar laws have been held constitutional in other states. People v. McEwen, 141 N. Y. 129 ; s. c., 25 L. B. A., 794. Commonwealth v. Beatty, 15 Pa. Super. Ct., 5. Commonwealth v. Hamilton, 120 Mass., 383. Cooley's Constitutional Limitations, p. 745. The question has not been squarely passed upon by the Supreme Court of Illinois. There is, however, a tacit recognition of the doctrine in some of the cases. In Ritchie v. People, 155 111., 98, where the Supreme Court held the eight-hour law unconstitutional, the court said: "We do not wish to be understood by anything herein said as holding that section five (5) would be invalid if it was limited in its terms to females who are minors." The court quotes with approval from Ex parte Kuback, 85 Cal., 274, where the Supreme Court of Cali- fornia recognized the validity of laws for the pro- tection of females and infants. A careful reading of the Ritchie case will demonstrate that the court there recognizes the principle that a law regulating the em- ployment of minors is a valid exercise of the police power. In view of the express adjudication of the courts of other states and the dicta of our Supreme Court, I am of the opinion that the courts of Illinois will uphold the present law. THE LIABILITY OP A CARRIES FOR LOSSES BY FLOODS AND UPON WHOM THE LOSS FALLS AS BETWEEN CONSIGNOR AND CONSIGNEE. (Selz, Schwab & Co., June 18, 1903.) Dear Sir: I have your communications enclosing correspondence between Selz, Schwab & Co., their cus- tomers and the railroads, growing out of the loss of 193 goods in transit during the recent floods. My opinion is asked as to whether or not the railroad company is liable for the losses caused by the floods, and, if not, whether the consignor or the consignee must stand the loss. Common carriers are insurers of the goods entrusted to their care for purposes of transportation, and they are liable for any loss or damage which hap- pens while the goods are in their custody. Where, however, such loss or damage is caused by the act of God, such as floods, storms, tempests and the like, the carrier is not liable, and the loss must fall upon the owner, and not upon the carrier. The maxim res perit suo domino, applies. (Broom's Legal Max- ims, and cases there cited.) In Coggs v. Bernard, 1 Smith's Leading Cases, (9th Am. Ed.) 354, "act of God" is defined with precision to cover "those losses that are occasioned exclusively by the violence of nature; by that kind of force of the elements, which human ability could not have fore- seen or prevented; such as lightning, tornadoes, sudden squalls of wind, ' ' etc. The courts hold that floods, which no human power could stay, and no foresight or prudence anticipate, is an act of God, which will relieve a carrier who is free from negligence from liability for damages by the floods to goods in his custody. Smith v. W. G. Ry. of Alabama, 11 L. R. A., 619. The carrier is bound to lessen injurious effects of a calamity caused by an act of God, by pursuing a rea- sonable course of conduct towards the property placed under his charge for carriage. He should apply the proper means of preserving from destruction whatever may remain, as in drying, re-packing, repairing and separating the spoiled from the unspoiled. But he would not be justified in forwarding merely for the sake of earning the freight on goods, which plainly are too far damaged to be worth to the owner the cost of further transportation, but the carrier should rather send for instructions, or else sell the goods on the spot for what they will bring ; for he is bound to regard 194 his customer's interest as well as his own in such a calamity. Nor, again, is the carrier bound to sus- pend his journey to the undue prejudice of other ship- pers, in order that injury to the property of one con- signee may be repaired ; for the general welfare of the property in his care must always be considered. Schouler on Bailments and Carriers, Sec. 404. In all cases of loss, the onus probandi is on the car- rier to exempt himself rrom liability; for prima facie the law imposes the obligation of safety upon him. Story on Bailments, Sec. 529, and cases cited. In Nashville, etc., Ry. v. David, 6 Heisk (Tenn.), 261, it was shown that an unprecedented flood had occurred at Chattanooga, on the Tennessee River, the water having risen some fifteen feet above what was known as the highest water mark at the locality made by previous overflows or freshets in the river. It was also shown that the road and its depot were located on ground higher than this water mark. The goods reached Chattanooga before the water had become so high as to interfere with travel on the road; but be- fore they could be forwarded from that place, it rose above the track and at last submerged the track of the road and its depot some ten or twelve feet, whereby the goods were injured. It was held that under these circumstances, if it also appeared that the agents of the road had used such diligence as prudent, skillful men engaged in that kind of business might fairly be expected to use under the like circumstances, to pro- tect and secure the property confided to their care, the carrier ought to be excused. In Read v. Spaulding, 30 N. Y., 930, where it ap- peared also that the damage to the goods had been caused by an extraordinary rise in the Hudson River, it was conceded without argument, and stated as un- questionable law, that such an occurrence would ex- cuse the carrier as the act of God, if it could be shown that no fault or negligence could be imputed to him, which has contributed to the loss. The act of God will not, however, excuse the carrier where the goods are destroyed after he has wrongfully 195 refused to deliver them to the consignee upon pres- entation of the bill of lading. Richmond, etc., R. Co., v. Benson, 12 S. E. (Ga.), 357. Where the destruction is due to the act of God, even where the loss would not have occurred but for the carrier's unreasonable delay, the weight of authority seems to be that the act of God is the proximate cause of the loss, and the carrier escapes liability. Hutchin- son on Carriers, Sec. 193, and cases cited. The United States Supreme Court in Railroad Co. v. Reeves, 10 Wall., 176, has held that in such a case the carrier is not liable. And see Vol. 7, Rose's Notes to U. S. Rep., p. 297. The carrier, therefore, under the authorities, not being liable for losses caused by floods, for the rea- son that floods are considered an act of God, the ques- tion remains, upon whom does the loss fall! The loss falls upon the owner of the goods at the time the loss occurs. Who is the owner depends upon the con- tract between the consignor and the consignee (vendor and vendee) and the facts and circumstances of each case. The general rule is that where a vendor de- livers goods to a carrier by order of the purchaser, the delivery to the carrier is a delivery to the vendee, and the title to the property vests immediately in the consignee. Benjamin on Sales, Sec. 409, and cases cited. Where the vendor is bound to send the goods to the purchaser the rule is well established that delivery to a common carrier, a fortiori to one specially desig- nated by the purchaser, is a delivery to the vendee, the carrier being, in contemplation of law in such cases, the bailee of the person to whom, not by whom, the goods are sent; the latter, when employing the carrier, being regarded as the agent of the former for that purpose. But if the vendor undertakes to make a delivery at a distant place, thus assuming the risks of carriage, the carrier is the vendor 's agent, and the title to the goods remains is the consignor. This may occur where goods are sent "F. 0. B. destination," or sent on approval, 196 or with privilege of examination. The same rule ap- plies if the goods are sent "C. 0. D." Benjamin on Sales, p. 687, although upon this proposition the de- cisions of the courts are not harmonious. If the vendor agrees to deliver the goods at the residence or place of business of the buyer, he incurs loss arising from damages to the goods in the course of transportation. But where there is no positive agreement to that effect, a delivery to the common carrier for transportation to the vendee, whether in accordance with his express or implied instructions, is held to be a delivery to the vendee himself. And delivery at the carrier's wharf or warehouse, to some receiving clerk, would ordinarily be a sufficient de- livery to the carrier, in order to pass title and risk to the vendee. But this is not the case, where the seller determines, or the contract requires him, to make the common carrier his own agent. The common method of reserving title and pos- session after delivery to the carrier, is to have the bill of lading written up in the shipper's name, and the goods deliverable to the shipper's order. When- ever this is done, the common carrier is an agent of the seller, and there is no delivery of possession until the bill of lading has been endorsed and transferred. But in making delivery to a common carrier, in order to throw the risk on the consignee, the con- signor must take every precaution to insure a safe delivery to the consignee. Any mistake in the ad- dress, or in the notice to the carrier of the character of the goods, and the like, whereby loss of, or damage to the goods results, will make the vendor responsible. And any deviation from the express instructions of the consignee, or any change by the consignor in the direction for transportation after the goods have been given to the carrier would operate to retain the pos- session and title in the consignor and prevent the transfer of them to the consignee. Tiedman on Sales, Sec. 95. The title to the goods may pass to the consignee by delivery of the bill of lading even though the title 197 to the goods when shipped was in the consignor. A bill of lading is the representative of the property for which it is given and its delivery is a symbolical de- livery of the goods. The fact that the bill of lading is made ''deliverable to the order of the vendor," when not rebutted by evidence to the contrary, shows an intention by the consignor, to preserve the jus disponendi, and to prevent the title to the property from passing to the consignee. Where a draft for the price of the goods is sent to the consignee for ac- ceptance or payment, together with the bill of lading, the title does not vest in the vendee before acceptance or payment of the draft, and the delivery of the bill of lading, as the case may be. When the vendor deals with the bill of lading only to secure the contract price as e. g. by depositing it with bankers who have discounted the draft, then the property vests in the vendee upon the payment or tender by him of the contract price. Benjamin on Sales, Sec. 457, et seq. The foregoing cases demonstrate that if the loss is caused by the act of God, it must fall upon the per- son who has title to the goods at the time of the loss, and in whom the title is depends upon the contract and the surrounding facts and circumstances of each particular case. If, however, the floods in question were not the proximate cause of the loss, the carrier is liable, and the right of action against him is in the owner. In each particular case, the ownership can be readily de- duced from the principles already given. In support of the above opinion, see the following authorities : Blythe & Lehman v. D. & R. G. R. R., 11 L. R. A., 615 (Colo.), and brief. Wald v. P. C. C. & St. L. R., 60 111. App., 462 ; s. c., 162 111., 545. Nashville R. R. Co. v. David, 6 Heisk (Tehn.), 261. Lang v. Pa. Ry., 154 Pa., 342 ; s. c., 20 L. E. A., 36. 198 Long v. P. R. R., 14 L. E. A., 741 (Pa.). Am. & Eng. Ency. of Law, Vol. 5, p. 234, cit- ing cases. Mich. Cent. R. R. v. Phillip, 60 111., 190. Webster v. Granger, 78 111., 230. Peters v. Elliott, 78 111., 321. Stafford v. Walter, 67 111., 83. Devine v. Edwards, 101 111., 138. Lewis v. Bank, 166 111., 311. 7. Cent. v. tfowfc, 41 111. App., 287. Commercial Bk. v. R. R. Co., 160 111., 401. Thomas v. ^irsJ Na. Bk., 66 Ill.App., 56. Bead v. Spaulding, 30 N. Y., 630. Richmond v. Benson, 12 S. E. Rep., 357 (Ga.). Taylor v. CoZo., Ill Mass., 363. Memphis, etc., R. Co. v. Reeves, 10 Wall., 176. Vol. 7 Rose's Notes to U. S. Reps., p. 297. Vol. 1 Ency. of Law (2nd Ed.), 596. Schouler, Bailments and Carriers, Sec. 404 (2nd Ed.). Benjamin on Sales (3rd Ed.), pp. 305, 328, 687, 457. Tiedeman on Sales (1st Ed.), Sec. 95. Tiffany on Sales (1st Ed.), pp. 181, 195, 61, 104, 211. Brom's Legal Maxims, p. 234. Jones on Bailments (1st Ed.), p. 104. Story on Bailments (6th Ed.), Sec. 529. Hutchinson on Carriers (2nd Ed.), Sec. 178. AS TO WHETHER A NEW AFFIDAVIT WILL BE REQUIRED UNDER THE CHILD LABOR LAW WHICH GOES INTO EFFECT JULY 1, 1903. (Illinois Manufacturers' Association, June 19, 1903.) "If the affidavit required by the present child labor law will be effective under the statute passed by the last legislature, taking effect July 1st, or whether a new affidavit will have to be procured." 199 I have examined "A Bill for an Act to regulate the employment of children in the State of Illinois, and to provide for the enforcement thereof," known as House Bill No. 634, being the bill you refer to as taking effect on July 1st, and also the statute en- titled: "An Act to regulate the employment of chil- dren in the State of Illinois, and to provide for the enforcement thereof," being Section 33 et seq., of Chap. 48 of the Revised Statutes. Under Section 5 of the new law, it is provided that : "An age and school certificate shall be approved only by the Superintendent of Schools, or by a person authorized by him, in writing. Under Section 6 of that Act it is provided that : "An age and school certificate shall not be ap- proved unless satisfactory evidence is furnished by the last school census, the certificate of birth or baptism of such child, the register of birth of such child with a town or city clerk, or by the records of the public or parochial schools that such child is of the age stated in the certificate; Provided, that in cases arising wherein the above proof is not obtainable, the parent or guardian of the child shall make an oath before the Juve- nile or County Court as to the age of such child, and the court may issue to said child an age certificate as sworn to." Under Section 7 of said Act, the form of the ac- knowledgment and certificate is set out in full. Sec- tion 34 of the old act requires that there shall be placed on file: "An affidavit made by the parent or guardian, stating the name, date and place of birth of such child. If such child shall have no parent or guardian, then such affidavit shall be made by the child." The new law, therefore, specifically provides before whom such affidavit should be made (the old law does not) ; the new law further provides that a certificate shall also be appended to the affidavit by the one tak- ing the acknowledgment (the old law does not). The 200 new law also prescribes that before such affidavit is approved, certain evidence must be produced, upon which affidavit and certificate is made (the old law does not). The new law provides (Section 15) that "All other acts and parts of acts in conflict with this act are hereby repealed." I am of the opinion, therefore, for the reasons above indicated, that the affidavits required under the law of 1897 (being the old law above referred to), are not such as are required by the law to take effect July 1. WHETHER ACKNOWLEDGMENT OF SALESMAN'S ORDER CON- STITUTES AN ACCEPTANCE. (Weir & Craig Mfg. Co., July 22, 1903.) "We have Mr. Levy Mayer's opinion under date of May 25th, in regard to the acceptance of a salesman's order constituting a contract. We note that the Senour Mfg. Co. in making their inquiry in regard to this matter, say: 'It seems to us the question to decide here is, does the taking of an order by a traveling salesman, submitting it to the house and the acknowledgment of the receipt of the same by the wholesale house, constitute making a contract? In other words, does the order sent to the wholesale house by the traveling salesman and the acceptance of the same by the wholesale mer- chant constitute a contract, etc.' Is there not a difference between an acknowl- edgment of an order and the acceptance of it ? You will note in the first paragraph of Mr. Mayer's opinion, that he states that the order obtained by a salesman becomes a contract when it is accepted by the seller, but he does not touch on the point as to whether an acknowledgment would make a contract. This is a matter which has given considerable trouble to every merchant, and it would be well 201 if some clear understanding of the subject could be had." To constitute a contract there must be a meeting of minds an offer and an acceptance. What consti- tutes a contract depends upon the circumstances of the particular case. A contract may be expressed or be implied from the circumstances. An acknowledg- ment of an order taken by a traveling salesman may or may not constitute a contract. Much will depend upon the language of the acknowledgment. If the acknowledgment is followed by a silence, this, under certain circumstances might be considered an acceptance of the order. If it is apparent, however, from the acknowledgment that a further communication is to be forthcoming, and the intent not to accept the order at that time appears, the acknowledgment does not complete the contract. The question, as I have said, must depend upon the facts in each particular case. The safe course to pursue is to state in the acknowledgment that it is not an accept- ance. AS TO WHETHER A COMMISSION SALESMAN HAS AUTHORITY TO MAKE CONTRACTS. (Francis Beidler, July 31, 1903.) ' ' I notice your various opinions sent the last few days, one of which my special attention is called to, and that is the obligation of salesmen's contracts. I would like to have the information in addition to that as to what the obligations on such contracts are where made by a salesman doing business for the house alone, but selling on a commission, and where orders are ordinarily recognized." The liability of the house on orders taken by sales- men who work on a commission basis is no different from the liability on orders taken by a traveling sales- man who works for the house alone. If such orders are taken subject to the approval of the house, the contract is complete when accepted by the house. 202 What constitutes an acceptance has already been re- ferred to in my prior opinions. If a salesman takes an order without submitting it to the house, the house is bound by such order when it is within the apparent scope of the salesman's au- thority. If he has actual authority to make contracts the contract is, of course, binding. If similar orders previously taken have been recognized by the house, this is a recognition of such agent's authority which will estop the house from subsequently disputing. But, as I have stated, the house is bound by all contracts made by the salesman within the apparent scope of his authority, even though as a matter of fact he has not actual authority. AS TO WHETHER PARTY RATES CAN BE RESTRICTED TO THEATRICAL PARTIES. (Moline Plow Co., July 22, 1903.) "We had occasion recently to send fifteen of our men to Kansas City to repair the damage caused by flood at that point. When we purchased the tickets we were obliged to pay full round trip rate of $18.50, although at the time we insisted that we should be given the same rate as is au- thorized for theatrical parties of ten or more. In- asmuch as time would not permit taking the mat- ter up with Chicago, we were instructed by the Division Passenger Agent at Davenport to pay the regular fare and send receipt to Chicago for adjustment, provided any could be obtained. We are, however, this morning in receipt of let- ter from L. M. Allen stating that he regrets very much that he is unable to make any refund on these receipts. It is our understanding that the law provides that there shall be no discrimination in either freight or passenger tariffs, and we see no reason why fifteen of our men should be charged in ex- cess of the authorized rate for a theatrical party of ten or more." The Interstate Commerce Act (Sec. 2) prohibits the charge or receipt by a carrier of any greater or less compensation for the transportation of passengers or property than such carrier charges or receives for "a like and contemporaneous service in the transporta- tion of a like kind of traffic under substantially similar circumstances and conditions." It is also provided by Section 3 of the act that it shall be unlawful for any carrier to make or give any undue or unreasonable preference or advantage to any particular person, etc., or to subject any particular person to any undue or unreasonable prejudice or dis- advantage. The language employed in Section 3, de- claring it unlawful to make or give any "undue or unreasonable preference or advantage" to any par- ticular person, etc., or to subject the same to any "un- due or unreasonable prejudice or disadvantage," clear- ly implies that there may be a preference or advantage on the one hand, or a prejudice or disadvantage on the other which is not undue or unreasonable, and, therefore, not in contravention of the law. To be with- in the statute the discrimination must be "unjust" and the preference or prejudice must be "undue" or "un- reasonable." The discrimination which is declared "unjust" is the charging and collecting from any per- son or persons a greater or less compensation for any service rendered in transporting passengers or prop- erty than is charged, collected or received by the car- rier from any other person or persons doing for him or them a like contemporaneous service in the trans- portation of like traffic "under substantially the same circumstances and conditions." When the traffic is not of like kind, or when the service is not l ' alike and con- temporaneous," or when the transportation is not ren- dered "under substantially the same circumstances and conditions," differences in charges do not constitute "unjust discrimination." No reason occurs to me in the nature of their voca- tions, why discrimination should be made in favor of 204 theatrical parties. It seems to me that the trans- portation of your party of ten persons is a like service as the transportation of a theatrical party of the same number. While the right of the carrier to sell ' ' party rate" tickets is recognized and such sale does not con- stitute an unjust discrimination, such tickets must be sold to all who apply for them, or the carrier will be guilty of "unjust discrimination." It is the duty of the carrier to serve all similarly situated upon the same terms and conditions. If, therefore, the carrier offers a "party rate" ticket to theatrical parties of ten or more, I am of the opinion that that rate must be offered to all parties of ten or more. In Larson v. Railway Co., 1 Int. Comm. Rep., 147, it was held that a railroad company could not restrict the sale of mileage tickets to commercial trav- elers. See also the following authorities : Interstate Commerce Com. v. B. & 0. Ry. Co., 43 Fed., 37; aff., 145 U. S., 263. Foster v. Ry. Co., 56 Fed., 434. Wholesale Grocers v. Ry. Co., 1 Int. C. B., 156. Smith v. R. R. Co., 1 Int. C. E., 208. If the carrier exacts a rate from a party of ten in excess of the "party rate," the excess can be recovered back. Such a payment cannot be considered as a vol- untary payment. Suffern v. Indiana, etc., Ry. Co., 7 Int. C. C. Rep., 255. AS TO THE REASONABLENES OF THE RULE ALLOWING 48 HOURS TO LOAD WHERE THE CARS ARE OF LARGE CAPACITY. (Max Levy & Co., July 22, 1903.) "We beg to call your attention to the following and shall be pleased to have you refer the same to the General Counsel of the association for his opinion. Under the rules of the different railroad com- panies, cars loaded or unloaded beyond forty-eight 205 hours are charged $1 per day or fraction thereof after such delay. The maximum capacity of cars at the time the rule was first made by the rail- roads was from 40,000 to 60,000 Ibs. and from that up to 120,000 Ibs. It seems to reason that it takes longer for a consignee or consignor to load or un- load a car holding from 30 to 60 tons than it does to load or unload one from 20 to 30 tons, and as all our commodity is loaded in bulk, and we usually load to the maximum capacity, we cannot see why we should not have longer time to load or unload a car holding in some cases double the quantity. Since the railroads increased the capacity of the cars, and in most cases doubled the same, we think that in justice to the shipper it should increase the time for loading and unloading, in proportion. No doubt a great many members of the association are affected by this rule, as well as we, and if it is within your province, we should be pleased to have the matter taken up." The matter is covered by my opinions of April 12, 1902, to Monmouth Mining & Mfg. Co., and of January 30, 1902, to Foley Mfg. Co. As was there stated, the question can only be determined from all the surround- ing facts and circumstances. As a matter of law, forty-eight hours is not unreasonable. If the rule allows sufficient time to unload in ordinary cases, with- out reference to any rare or exceptional circumstances incident to a particular shipper at some particular time, and without reference to an unfavorable condi- tion of weather, its validity will probably be upheld by the courts. Similar rules have been held by the courts of other states to be reasonable as to time. The fact that the capacity of the cars has been largely increased since the date when the rule was put in operation, would be a strong circumstance in deter- mining the reasonableness of the rule. THE EFFECT OF THE ORDINANCE OF THE CITY OF CHICAGO PROHIBITING THE FORESTALLING OF FUEL, ETC. (Barnhart Bros. & Spindler, July 25, 1903.) "Will you kindly ask your counsel, Mr. Mayer, his interpretation of the section in the recent ordi- nance adopted by the city council, intended to re- strict the coal trust. The ordinance is so loosely drawn that it might be used to make infinite trouble to any man's business, since it makes it a punish- able misdemeanor to say or to do anything that would prevent merchandise of any kind coming into the city of Chicago. We enclose herewith copy of the section of the ordinance referred to." The ordinance is as follows : "Sec. 1. That any person, firm or corporation who shall dissuade any other person, firm or cor- poration from bringing any coal, wood or other fuel, or merchandise into the City of Chicago, or shall practice any device, or combine or conspire with another or others, or commit any act with intent to enhance the price of any coal, wood, or other fuel or merchandise whereby any consumer or purchaser for domestic use in the City of Chi- cago purchasing any of said coal, wood or other fuel or merchandise, shall be compelled to pay a greater price therefore than he otherwise would be compelled to pay, shall be deemed and found guilty of forestalling. Sec. 2. Any person, firm or corporation found guilty of forestalling as defined in Section 1 of this ordinance, shall be liable to a fine in the sum not to exceed $200 for each offense, to be recovered by suit by the City of Chicago in any court of com- petent jurisdiction ; and it shall be separate offense for each and every lot or parcel of said coal, wood, or other fuel or merchandise that any such con- sumer or purchaser for domestic use shall be com- 207 pelled to purchase at a greater price than he other- wise would be compelled to pay. Sec. 3. This ordinance shall be in full force and effect from and after its passage and due pub- lication according to law." The ordinance applies only to such merchandise as is of the same nature as "coal, wood or other fuel," and does not apply to all kinds of merchandise. To constitute the offense of forestalling under the ordi- nance, the acts prohibited must have the effect of compelling any consumer or purchaser of coal, wood or other fuel, or similar substance for domestic use in the City of Chicago, to pay a greater price therefore than he would otherwise be compelled to pay. THE KEDEMPTION OF COUPONS OF INTERCHANGEABLE MILE- AGE TICKETS. (Streator Clay Mfg. Co., July 24, 1903.) "Bef erring to the opinion of Mr. Levy Mayer, General Counsel, in reference to railroad compa- nies' obligation to redeem coupons when the user has not traveled 2,000 miles, given under date of May 26th, 1903, beg to say, that we do not under- stand the opinion covers the question. Railroad companies under the so-called Western Passenger Association issue interchangeable mile- age books, and with each ticket purchased under the contract, issue a coupon which is redeemable, providing the purchaser travels 2,000 miles with- in a specified time. The question we want to raise now is, whether or not the railroad company is liable through its so-called passenger bureau to redeem these cou- pons in the event the purchaser has not traveled 2,000 miles." Possibly I do not understand the facts. I infer that the full rate is paid when the ticket is purchased, and that the redeemable coupon is the means of re- 208 ceiving or evidences the rebate. If my understanding of the facts be correct, then the matter is covered by the prior opinion. The railroad companies are obligated under the stat- ute (Kurd's Rev. Stat. of 1901, Sec. 16, p. 1389) to redeem the interchangeable mileage tickets at a rate equal to the difference between the price paid for the whole ticket and the cost of tickets between the points for which proportion of said ticket was actually used. THE LIABILITY OF AN EMPLOYEE UNDER THE CHILD LABOR LAW WHERE A CHILD IS INJURED BY MACHINERY UPON WHICH HE IS NOT EMPLOYED. (Illinois Malleable Iron Co., July 27, 1903.) 1 1 Concerning the new law regarding child labor ; while we are in sympathy with the law, and did not ask any one to vote against it, yet we would like some information as to the best way of pro- tecting ourselves from legal complications grow- ing out of infringements of the law by children in our employ, who do so contrary to our instruc- tions. For instance, we notice that they must not put on or off belts, and while we shall have the super- intendent and respective foremen instructed on this matter, yet we fear they will do this, be- cause we know it is boy-like to want to do this on any machine they run. If a minor does work contrary to instructions, and an accident should result from it, would we be legally liable 1 ? Also, our wire straightener is a very small af- fair for straightening No. 16 wire, and it is con- sidered one of the easiest jobs ; and while we shall immediately instruct that no child under 16 years shall be employed at it, yet there is a chance of others than the one employed on the machine occasionally getting at it. Never, so far as the writer knows, has there been an accident on the 209 machine, but should an accident occur to a child that has no business running it, would we be liable? We remember one case where we were sued be- cause of a boy getting hurt in our shop, and the injury occurred through his going to a machine not his own, ond running it without permission. Of course he swore that he was hurt on his own machine, and his lawyer foolishly offered to take the jury to the factory and show them the ma- chine he was hurt on. The writer had our at- torney accept the challenge, and the jury found it impossible for him to have been hurt on the machine he was working on. Hence in that case we won, but if it had been a prosecution by the State because of a boy working on a machine that the law said he should not work, and he had done so without orders, would we have been liable?" To constitute a violation of Section 11 of the Child Labor Law, the child must be ''employed" upon the machine which he is forbidden to operate or assist in operating. If he goes outside the scope of his employ- ment or disobeys the instructions of his employer, and meddles with a dangerous machine, the employer, in my opinion, will not be liable to the penalties im- posed by the Child Labor, Law. Whether the employer is liable in damages to the child for an injury caused by such machinery is a different question. If the law in reference to the employment of chil- dren is violated, such violation is not of itself suffi- cient to entitle the person injured to recover. The violation of the law is, however, at least prima facie evidence of negligence where such violation is the natural and proximate cause of the injury. If the child is injured when not "employed" on the ma- chine which causes the injury, no liability is imposed under the Child Labor Law. The liability in such a case must depend upon the general principles of the law relating to negligence. The liability of the em- ployer for negligence depends upon the facts and 210 circumstances of each case. It is in most cases a question of fact for the jury. The law imposes a duty to properly safeguard dangerous appliances so as to avoid injury. If an injury occurs through a breach of this duty, the employer must be held liable. Many other considerations might affect the ques- tions of liability, but, as I have said, the questions most depend upon the facts and circumstances in each case. If, however, a violation of the Child Labor Law is not the proximate and natural cause of the injury, that law has no bearing upon the question of liability. WHETHER THE ILLINOIS CHILD LABOE LAW OF 1903 PRO- HIBITS THE EMPLOYMENT OF MINORS ON ALL STEAM MACHINERY OR ONLY " STEAM GENERATING MA- CHINERY. ' ' (American Can Co., July 24, 1903.) "Again referring to the child labor law which took effect July 1st, in this state, the question has arisen in regard to the paragraph in Section 11, regarding the employment of child labor on machinery, as to what the interpretation of the clause which reads: ' steam boilers, steam ma- chinery, or other steam-generating apparatus/ means. The chief factory inspector has notified our su- perintendent that this means that children should not run any kind of machinery which is driven by steam power. The opinion of the writer in reading the law would be, that this would mean that children should not be employed in operating steam boilers or steam engines, and that it does not refer to belt-driven machinery. We would respectfully ask for an opinion of the attorney of your association on this question, at your earliest convenience." Section 11 of the Child Labor Law provides: 11 EMPLOYMENT FORBIDDEN CHILDREN UNDER 211 SIXTEEN YEARS OF AGE. No child under the age of sixteen shall be employed at sewing belts, or to assist in sewing belts, in any capacity what- ever; nor shall any child adjust any belt to any machinery; they shall not oil or assist in oiling, wiping, or cleaning machinery; they shall not operate or assist in operating circular or band saws, wood-shapers, wool-jointers, planers, sand- paper or wood-polishing, emery or polishing wheels used for polishing metal, wood-turning .or boring machinery, stamping machines in sheet metal and tinware manufacturing, stamping ma- chines in washer and nut factories, operating cor- rugating rolls, such as are used in roofing fac- tories, nor shall they be employed in operating any passenger or freight elevator, steam boiler, steam machinery or other steam generating ap- paratus, or as pin boys in bowling alleys; they shall not operate or assist in operating dough brakes, or cracker machinery of any description; wire or iron straightening machinery; nor shall they operate or assist in operating rolling ma- chinery, punches or shears, washing, grinding or mixing mills or calendar rolls in rubber manufac- turing, nor shall they operate or assist in op- erating laundry machinery; nor shall children be employed in any capacity in preparing any com- position in which dangerous or poisonous acids are used, and they shall not be employed in any capacity in the manufacture of paints, colors or white lead; nor shall they be employed in any capacity whatever in operating or assisting to operate any passenger or freight elevator; nor shall they be employed in any capacity whatever in the manufacture of goods for immoral pur- poses, or any other employment that may be con- sidered dangerous to their lives or limbs, or where their health may be injured or morals depraved; nor in any theatre, concert hall, or place of amuse- ment wherein intoxicating liquors are sold; nor shall females under sixteen years of age be em- 212 ployed in any capacity where such employment compels them to remain standing constantly. ' ' (Sess. Laws of Illinois, 1903, pp. 156-160.) I do not pass upon whether the machinery in ques- tion comes within the meaning of Section 11, except in so far as it may be covered by that clause which reads : "Nor shall they be employed in operating any passenger or freight elevator, steam boiler, steam machinery, or oilier steam-generating apparatus." If the words "steam machinery" be so construed as to include all kinds of machinery driven or operated by steam, it would include every species of machinery. The legislature has, however, in Section 11 of the law, described in detail what classes and kinds of ma- chinery are within the law. If by the words "steam machinery" the legislature intended to include all ma- chinery operated by steam, it would not be necessary to set out in detail the kinds of machinery that would come within the description of the words "steam ma- chinery." This is indicative of the legislative intent. Further light is thrown upon that intent by the words "or other steam-generating apparatus." This clearly shows that the words "steam machinery" mean steam- generating machinery. I am therefore of the opinion that the construction placed upon the laws by the Chief Factory Inspector is erroneous. THE FOREIGN CORPORATION LAW OF TEXAS AND WHETHER THE CARRYING OF A STOCK OF GOODS IN TEXAS IS ' ' DOING BUSINESS" THEREIN. (Illinois Manufacturers' Association, July 27, 1903.) "We are planning to carry a stock of goods at Dallas, Texas, for shipments from that point to our Texas trade, all orders to be sent to us here at our Chicago office and to be subject to our ap- proval here, after which shipments will be made from Dallas. 213 Will you kindly advise us if this constitutes 1 doing business in Texas' in the sense in which the term is used in the Texas Statutes'? We have seen a number of answers sent out by your association to questions somewhat similar to this, but we believe we have not seen an answer that covered just these conditions." I am of the opinion, under the facts stated, the com- pany cannot carry on the contemplated business in Texas without a compliance with the laws of that state governing foreign corporations. Southern Cotton Oil Co. v. Wemple, 44 Fed., 24. People v. Mining Co., 105 N. Y., 76. THE FOREIGN CORPORATION LAW OF TEXAS AND WHAT CON- STITUTES "DOING BUSINESS" THEREIN. (Kellogg Switch Board & Supply Co., Sept. 1, 1903.) "We are in receipt of 'Opinion of Levy Mayer, General Counsel, in reference to the foreign cor- poration law of Texas.' We would like to be advised as to the exact meaning of 'foreign cor- porations doing business in Texas.' We do busi- ness in that state through traveling men and cor- respondence and wish to know if we are liable to taxation, under the circumstances." What constitutes "doing business" depends upon the circumstances of such particular case. If the Kellogg Company does business in Texas solely through the mails or through the medium of traveling salesmen, who take orders subject to the approval of the home office, I am of the opinion that the company is not doing business in Texas and need not comply with the foreign corporation laws. 214 AS TO WHO SUSTAINS THE LOSS ON GOODS LOST OR DAMAGED IN TRANSIT, WHERE THE CONSIGNOR PAYS OR ALLOWS THE FREIGHT AND WHERE THE GOODS ARE SOLD ' i F. O. B. POINT OF SHIPMENT." (Hibbard, Spencer, Bartlett & Co., July 28, 1903.) "Will you kindly secure from the legal repre- sentative of the association an opinion respecting the effect of the use of freight allowance phrases in making quotations as, for instance, 'We quote nails to you at $2.50 rates, freight allowed to your town. We quote nails to you at $2.50 rates, freight prepaid to your town. We quote nails to you at $2.50 rates, F. 0. B. Chicago, freight allowed to your town.' In the event of damage to the goods in transit, upon whom does the loss fall in each case, as- suming the carrier is not liable? Does it fall on the buyer or upon the seller? As regards safe delivery at destination, what responsibility, if any, does the seller assume by prepaying freight to stations where there is no railroad agent or where it is prepaid by him upon request and at the expense of the buyer!" The phrases used in making freight allowance above quoted, are all of the same legal effect, and in absence of other qualifying circumstances, the carrier would be the agent of the consignor. A loss in such a case would fall upon the consignor. The responsibility of the consignor would continue for the same time as the responsibility of the carrier to the consignee would continue that is, until there is an actual or a constructive delivery. What con- stitutes such a delivery depends on the facts in each case. As already indicated, if the freight is prepaid by the consignor expressly at the request and on behalf of and as an agent of the consignee, and in case of loss the loss would be upon the consignee. NOTE: See the later opinion upon this same subject, dated Octo- ber 24, 1903, in answer to the query of American Steel & Wire Co. Ed. 215 LIABILITY OF A CARRIER FOR GOODS DESTROYED BY MOB. ALSO LIABILITY FOR DELAY CAUSED BY MOBS. (Latrobe Steel & Coupler Company, July 22, 1903.) "During the coal riots of last winter there were a number of cases where coal consigned to us was stolen from cars in transit. The railway com- panies, while not disputing the actual shortages in cars when they reached destination, simply dis- claim liability, under the old common law of not being responsible for the act of God or the king's enemies. The railway companies contend that a condition of riot and disorder existed which absolved com- mon carriers from liability, and on this basis have declined to honor our claims. We would very much like to have, if possible, the opinion of Mr. Mayer as to whether the rail- way companies' defense is good law. It is not our desire to get into any legal controversy over the matter, as the amount involved is too small. At the same time, we would like to know whether common carriers can be held for shortages of this kind under the conditions which existed during the latter part of last winter." The carrier is liable as an insurer for all loss or damage to goods in transit not caused by the act of God or the public enemy. "Public enemy" means those with whom the nation is at war and does not include thieves, robbers, rioters or mob. The carrier is liable, therefore, for any destruction of property caused by the violence of a mob. A mob is not con- sidered as a public enemy. Schouler Bailments & Carriers (2nd Ed.), p. 429. Hutchinson on Carriers (2nd Ed.), pp. 226, 227. Railway Co. v. Nevill, 60 Ark., 375. Railway Co. v. Holloivell, 65 Ind., 188. 5 Ency. of Law (2nd Ed.), pp. 235, 236. 216 If, however, a delay is caused by the action of a mob, this will excuse the delay. The liability of a carrier for delay because of strikes, riots or mobs is not as strict as its liability for loss or damage from the same cause. Railway Co. v. Hazen, 84 111., 36. Geismer v. R. R. Co., 102 N. Y., 563. AS TO WHETHER THE PREPAYMENT OF FREIGHT BY THE CONSIGNOR THROWS THE RISKS OF TRANSIT UPON HIM. (Hibbard, Spencer, Bartlett & Co., July 27, 1903.) 11 We would like what we know to be a reliable opinion on the following legal point: We fre- quently ship a carload of goods to a certain point, charge the customer a given price and prepay the freight. The question is, whether by the pre- payment of the freight we virtually deliver the goods at the point of destination, or whether the possession of the goods is with the consignee as soon as we hold the transportation company's re- ceipt for the goods, the same as though we had not paid the freight. Secondly, does this prepayment of the freight or an agreement on our part to pay the freight to the point of destination place the responsibility of the loss in the shipment with the consignor in the same way as if the goods had been shipped F. 0. B. at the point of destination?" The matter is fully covered by my opinion of June 18th, 1903, in answer to the query of Selz, Schwab & Co. (See pp. 4-7 of that opinion.) In the absence of other qualifying circumstances, or an agreement by the company, the prepayment of freight by the con- signor is of the same effect as a shipment F. 0. B. destination, and the carrier is the agent of the con- signor. In such a case, if there is a loss for which the carrier is not liable, the consignor must stand the loss. If by agreement the consignor pays the freight, as the agent of the consignee, the loss will fall upon 217 the latter. The title may also pass to the company, as I stated in the opinion referred to, while the goods are in transit by the delivery of the bill of lading. See authorities cited in my former opinions, and also Schouler's Bailments & Carriers (2nd Ed.), Sees. 565-568. Tiedeman on Sales (1st Ed.), Sec. 85, 95. Tiffany on Sales (1st Ed.), pp. 99-100. Hutchinson on Carriers (2nd Ed.), Sec. 720 et seq. AS TO WHETHER MANUFACTURERS ARE COMPELLED TO PAY A FAQTORY LICENSE FEE OF $1.00 TO THE CITY OF CHICAGO. (C. F. Baum Company, July 28, 1903.) "Some of our friends in the manufacturing business are obliged to take out factory licenses from the City on which the charge is $1.00 and we wish to inquire if it is necessary for us to have this. As yet there has been no factory in- spector at our place, neither have we read of such a law or been informed by you to this ef- fect." I am not advised of the nature of the business of the various concerns who are obliged to take out licenses. There is an ordinance which provides: "Any house, room or other place in which the process of making, altering, repairing or finishing any so-called ready-made coats, vests, trousers, overcoats, or any other sort or description of wear- ing apparel intended for sale, shall be carried on, shall be deemed a workshop, and shall be governed by all ordinances now in force, or which may here- after be passed, relating to workshops." See Sec, 1088 Eev. Code of Chicago of 1897. Section 1091 of the Code provides for a payment of an annual license fee of One Dollar ($1.00) for any such workshop. 218 I am not sufficiently advised as to the nature of the business carried on by the C. F. Baum Company to say whether it is embraced within the language above quoted. THAT A CARRIES MUST DELIVER CARS UPON PRIVATE SIDE TRACKS CONNECTED WITH ITS OWN LINE, AND THAT A CARRIER CANNOT REFUSE TO SWITCH SUCH CARS ON PRI- VATE SIDE TRACKS BECAUSE OF UNPAID DEMURRAGE CHARGES ON OTHER CARS. (Skandia Furniture Company, July 29, 1903.) ' ' It has come to our notice that the four railways entering Eockford have through Mr. Elliott, man- ager of the Illinois Car Service Association, agreed to stop switching car-lot business, that is, they will not deliver any car business to the factory or switch track adjoining factory, unless said factory pays all accrued demurrage and will agree to pay future demurrage without protest. The Car Service Association admit that they cannot legally collect demurrage, but will take the position that they have the right to refuse the switching of cars, that the team track is the ter- minal and that the placing of cars on the team track ends their contract and that merchandise must be carted from the car. Please obtain a ruling from Mr. Mayer on this point, if the switching of cars is merely an accom- modation and if the railway companies have the right to refuse this service, and if any arbitrary rule can be put in force by them and they use this means to gain their end." If the carrier makes an express contract to deliver to the consignee personally or to a particular ware- house or factory it is bound by such a contract and must make the delivery in accordance with the con- tract. Cahn v. M. C. R. R. Co., 71 111., 96. At common law it was the duty of a carrier to make 219 a personal delivery to the consignee, but this rule has been relaxed in regard to railways from necessity. The liability of the carrier is in most cases discharged by a delivery at the warehouse, depot or team track pro- vided by the carrier for the storage of the goods. This rule is based upon the ground that a railway has no means of delivery beyond its own lines. If the car- rier is able to make a delivery to the consignee by means of a spur or switch-track, the necessity of the relaxation of the rule requiring personal delivery no longer exists and in my opinion the carrier is bound to make a personal delivery. Vincent v. C. & A. Rd. Co., 49 111., 33. 5 Ency. of Law (2nd Ed.), p. 216. Coe v. R. R. Co., 3 Fed. Eep., 775. The carrier cannot, however, be compelled to deliver freight beyond its own termini. The place of business of the consignee must be upon the line of the railroad company. Where a side track is erected and owned by the com- pany or the consignee it is considered part of the line of the railroad and the company is obligated to make a personal delivery to the consignee. But where the railroad company can only use the side track by per- mission of one other than the consignee, it need not make a personal delivery as such side track is not a part of its line. To constitute the side track part of the line the railroad company must have the right to use it, and it cannot be compelled to obtain the right, nor is it material that the railroad company has de- livered freight over such side tracks by virtue of spe- cial agreements. People v. C. & A. Rd. Co., 55 111., 95. Vincent v. C. & A. Rd. Co., 49 111., 33. Railway Co. v. People, 56 111., 365. Hoyt v. C. B. & Q. Rd. Co., 93 111., 601. C. & A. Rd. Co., v. Suffern, 129 111., 274. R. R. Co. v. Elevator Co., 153 111., 70. The liability of the carrier to make a personal deliv- ery may also be established by usage or custom. Where the goods are of such a nature that the carrier is not 220 required, in the usual course of business, to remove the freight from the car, as in the case of grain in bulk, coal, lumber and the like, the carrier discharges his duty by delivering the car in a safe and convenient position for unloading at the elevator, warehouse or other place designated in the contract or required in the usual course of business, or, if no place of busi- ness is thus designated or required, on its side track or team track, in the usual and customary place for unloading by consignees. Gr.egg v. Illinois Cen. R. R., 147 111., 550. If, therefore, it has been the well established and generally well known custom and the usual course of business for the carrier to make a personal delivery to the consignee where such consignee can be reached over the line of the railroad, such custom forms a part of the contract of carriage and the railroad company is obligated to make a personal delivery. But to have that effect the custom must be so uniformly acquiesced in by length of time that it must be considered to have entered the minds of the parties and constituted a part of the contract. Calm v. M. C. R. R. Co., 71 111., 96. It is the duty of a carrier to serve all its patrons who are similarly situated, alike and without unjust discrimination. If, then, it makes a personal delivery to one consignee and denies it to another similarly situated it is guilty of unjust discrimination. The carrier cannot impose the condition upon the performance of its legal duty, that the customer pay illegal charges not connected with the service in ques- tion, where it performs the duty to those who agree to pay the illegal charges. It, therefore, cannot insist that the consignee pay theretofore accrued demurrage charges on other shipments as a condition to the mak- ing of a personal delivery. NOTE: See opinion of April 20, 1907, for the Block-Pollack Iron Company as to the right of a railroad to refuse to switch shipments to private tracks on account of unpaid demurrage charges on other shipments, as provided by its car-service or demurrage rules. Ed. 221 LIABILITY OF A FIRM ON ORDERS TAKEN BY ITS SALESMEN WHO ARE WORKING ON A COMMISSION BASIS. (Francis Beidler, July 31, 1903.) ' ' I notice your various opinions sent the last few days, one of which my special attention is called to and that is the obligation of salesmen's contracts. I would like to have the information in addition to that as to what obligations on such contracts are where made by a salesman doing business for the house alone, but selling on commission, and whose orders are ordinarily recognized." The liability of the house on orders taken by sales- men who work on a commission basis is no different from the liability on orders taken by a traveling sales- man who works for the house alone. If such orders are taken subject to the approval of the house, the contract is complete when it is accepted by the house. What constitutes an acceptance has already been re- ferred to in my prior opinions. If a salesman takes an order without submitting it to the house, the house is bound by such order when it is within the apparent scope of the salesman's author- ity. If he has actual authority to make contracts the contract is, of course, binding. If similar orders previ- ously taken have been recognized by the house, this is a recognition of such agent's authority which will estop the house to subsequently dispute it. But, as I have stated, the house is bound by all contracts made by the salesman within the apparent scope of his au- thority even though as a matter of fact he has not actual authority. 222 THAT THE ILLINOIS LAW REQUIRING AN EMPLOYER TO STATE THAT THERE IS A STRIKE AT HIS PLANT WHEN ADVERTIS- ING FOR MEN TO TAKE THE PLACE OF STRIKERS IS UNCON- STITUTIONAL. (Illinois Manufacturers' Assn., August 5, 1903.) ' * We should like to know whether in the opinion of the attorney of the association the act which makes it obligatory on the manufacturer to adver- tise the fact that there is a strike in his works when he has advertised for men to take the place of strikers, is not unconstitutional. It seems to us that there is no value whatever in advertising for men if we are obliged to insert the fact that they are to take the place of strikers, for the reason that it is simply impossible to discuss the merits of the case in such advertisement, and no matter how much justice there may be on our side, the mere fact of having to state there is a strike would intimidate workmen from coming. If this law is unconstitutional, would it not be a good thing for the association to make a test case, as this is a matter which interests every member of the association to a very great degree. ' ' The statute in question is as follows : "That it shall be unlawful for any person, per- sons, company, corporation, society, association or organization of any kind doing business in this state, by himself, themselves, his, its or their agents or attorneys, to induce, influence, persuade or en- gage workmen to change from one place to another in this state, or to bring workmen or any class or calling into this state to work in any of the depart- ments of labor in this state, through or by means of false or deceptive representations, false adver- tising or false pretenses, concerning the kind and character of the work to be done or amount and character of the compensation to be paid for such work, or the sanitary or other conditions of the employment, or as to the existence or non-existence 223 of a strike or other troubles pending between em- ployer and employes, at the time of or prior to such engagement. Failure to state in any adver- tisement, proposal or contract for the employment of workmen that there is a strike, lockout, or other labor troubles at the place of the proposed employ- ment, when in fact such strike, lockout or other labor trouble then actually exists at such place, shall be deemed as false advertisement and mis- representation for the purpose of this act. Sec. 2. Any person, or persons, company, cor- poration, society, association or organization of any kind doing business in this state, as well as his, their or its agents, attorneys, servants or asso- ciates found guilty of violating section 1 of this act, or any part thereof, shall be fined not exceed- ing $2,000 or confined in the County Jail not ex- ceeding one year, or both, where the defendant or defendants is or are a natural person or persons. Sec. 3. Any person or persons who shall in this or another state, hire, aid, abet, or assist in hiring, through agencies or otherwise, persons to guard with arms or deadly weapons of any kind other persons or property in this state, or any per- son or persons who shall come into this state armed with deadly weapons of any kind for any such purpose, without a permit in writing from the Governor of this state, shall be guilty of felony, and on conviction thereof shall be imprisoned in the Penitentiary not less than one year nor more than five years. Provided, that nothing contained in this act shall be construed to interfere with the right of any person, persons or company, corpora- tion, society, association or organization in guard- ing or protecting their private property or private interests as is now provided by law; but this act shall be construed only to apply to cases where workmen are brought into this state or induced to go from one place to another in this state, by false pretenses, false advertisement or deceptive representations, or brought into this state under 224 i arms, or removed from one place to another in this state under arms. Sec. 4. Any workman of this state, or any work- man of another state, who has, or shall be influ- enced, induced or persuaded to engage with any persons mentioned in section 1, of this act, through or by means of any of the things therein pro- hibited, each of such workmen shall have a right of action for recovery of all damages that each such workman has sustained in consequence of the false or deceptive representations, false adver- tising and false pretenses used to induce him to change his place of employment, against any per- son or persons, corporations, companies or asso- ciations, directly or indirectly, causing such dam- ages; and, in addition to all actual damages, such workman may have sustained, shall be entitled to recover such reasonable attorney's fees as the court shall fix, to be taxed as costs in any judgment recovered. ' ' By Article 14 of Amendments of. the Constitution of the United States, a state cannot "deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ' ' Section 2 of Article 2 of the Constitution of Illinois provides that: "No person shall be deprived of life, liberty or property without due process of law. ' ' Does the act under consideration violate the con- stitutional provisions above quoted? If the act can be justified at all, it must be under the police power of the state. In considering the validity of an enactment of a state legislature, under the police power, the question to be determined is whether the regulation or classifi- cation has been designed to subserve some reasonable public purpose, or is a mere device or excuse for an unjust discrimination, or for the oppression of spoli- ation of a particular case. Any regulation of the in- ternal affairs of the state fairly subserving a valid 225 public purpose, and reasonably exercised for the bene- fit of the community at large, is valid, but if it be ar- bitrary, and have no substantial relation to the health, morals, peace or welfare of the community, it will be nullified. (See Guthrie on the Fourteenth Amend- ment, p. 76.) The constitutional liberty of speech and of the press, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity or scandalous character may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of in- dividuals. Cooley Const. Lim., p. 518. Tiedeman Lim. of Police Power, p. 192. If the citizen is free to publish whatever he pleases subject to the above limitations, he is at liberty to omit from his publication whatever he pleases, subject to the same limitations. In Wallace v. Georgia C. & M, Ry. Co. (Ga.), 29 S. E. 579, in passing upon a statute "requiring certain cor- porations to give to their discharged employes or agents the causes of their removal or discharge when discharged or removed," the Supreme Court of Georgia said: "The public, whether as many or one, whether as a multitude or a sovereignty, has no interest to be protected or promoted by a correspondence between the discharged agents or employes and their late employer, designed not for public but for private information as to the reasons for dis- charges, and as to the import and authorship of all complaints or communications which produced or suggested them. A statute which undertakes to make it the duty of incorporated railroad, ex- press and telegraph companies to engage in cor- respondence of this sort with their discharged agents and employes, and which subjects them in each case to a heavy forfeiture, under the name of 226 damages, for failing or refusing to do so, is vio- lative of the general private right of silence en- joyed in this state by all persons, natural or arti- ficial, from time immemorial, and is utterly void, and of no effect. Liberty of speech and writing is secured by the constitution, and incident there- to is the correlative liberty of silence, not less im- portant nor less sacred. Statements or communi- cations, oral or written, wanted for private in- formation, cannot be coerced by mere legislative mandate, at the will of one of the parties and against the will of the other. Compulsory pri- vate discovery, even from corporations, enforced, not by suit or action, but by statutory terror, is not allowable, where rights are under the guar- dianship of due process of law." In Coal Co. v. The People, 147 111., 66, the court said: ' * Property, in its broader sense, is not the phys- ical thing which may be the subject of ownership, but is the right of dominion, possession and power of disposition which may be acquired over it; and the right of property, preserved by the con- stitution, is the right not only to possess and enjoy it, but also to acquire it in any lawful mode, or by following any lawful industrial pursuit which the citizen, in the exercise of the liberty guaranteed, may choose to adopt. Labor is the primary foundation of all wealth. The property which each one has in his own labor is the com- mon heritage and as an incident to the right to acquire other property, the liberty to enter into contracts by which labor may be employed in such way as the laborer shall deem most beneficial, and of others to employ such labor, is necessarily in- cluded in the constitutional guaranty." The vocation of an employer, as well as that of his employe, is property. In the State v. Goodwill, 10 S. E. Rep., 285, 287 (W. Va.), the court said: "It is equally an encroachment both upon the 227 just liberty and rights of the workman and his employer, or those who might be disposed to em- ploy him, for the legislature to interfere with the freedom of contract between them, as such inter- ference hinders the one from working at what he thinks proper, and at the same time prevents the other from employing whom he chooses. A person living under the protection of this government has the right to adopt and follow any lawful industrial pursuit, not injurious to the community, which he may see fit. And, as incident to this, is the right to labor and employ labor; make contracts in re- spect thereto, upon such terms as may be agreed upon by the parties ; to enforce all lawful con- tracts; to sue and give evidence; and to inherit, purchase, lease, sell and convey property of every kind. The enjoyment or deprivation of these rights and privileges constitutes the essential dis- tinction between freedom and slavery; between liberty and oppression." In State v. Haun (Kan.), 47 L. E. A., 369, 375, where the Supreme Court of Kansas passed upon a statute regulating the time and manner of payment to em- ployes, that court said: " * * the legislature * : * places the laborer under guardianship; classifying him in respect to freedom of contract, with the idiot, the lunatic, or the felon in the penitentiary. It has been sought by some judges to justify legislation of this kind upon the theory that in the exercise of the police powers, a limitation necessary for the protection of one class of persons against the persecution of another class may be placed upon freedom of contract. As between persons sui juris, what right has the legislature to assume that one class has the need of protection against another? In this country the employe of to-day may be the employer next year, and laws treating employes as subjects for such protective legisla- tion belittle their intelligence, and reflect upon their standing as free citizens. It is our boast 228 that no class distinctions exist in this country. An interference by the legislature with the free- dom of the citizen in making contracts, denying to a part of the people, possessing sound minds and memory, the right to bargain concerning the equivalent they may desire to receive as compen- sation for their labor, is to create or carve out a class from the body of the people, and place that class within the pale of protective laws which in- vidiously distinguish them from other free citi- zens; thus dividing by arbitrary fiat equally free and intelligent people into distinctive classes or grades, the one marked by law as the object of legislative solicitude, the other not. This dis- crimination has been justified by writers defend- ing the doctrine of paternalism, and by some judges, upon the asserted fact that labor is con- stantly engaged in an unequal contest with capi- tal, and that the former must be re-enforced by the legislative power of the state, to prevent its overthrow in the conflict. Freedom of action- liberty is the corner stone of our governmental fabric. ' In Ruhstrat v. The People, 185 111., at p. 142, the court said: "The legislature has no power, under the guise of police regulations, to arbitrarily invade the per- sonal rights and personal liberty of the individual citizen. Its determination upon this question is not final nor conclusive. If it pass an act osten- sibly in the exercise of the police power, but which in fact interferes unnecessarily with the personal liberty of the citizen, the courts have a right to examine the act and see whether it relates to the object which the exercise of the police power is designed to secure, and whether it is appropriate for the promotion of such objects. When the police power is exerted for the purpose of regu- lating a useful business or occupation and the mode in which that business shall be carried on or advertised, the legislature is not the exclusive 229 judge of what is a reasonable and just restraint upon the constitutional right of the citizen to pur- sue his calling, and to exercise his own judgment as to the manner of conducting it." In Frorer v. The People, 141 111., 171, at p. 185, the Illinois Supreme Court said: ' ' The police power is limited to enactments hav- ing reference to the comfort, the safety or the welfare of society, and under guise of it a person cannot be deprived of a constitutional right. * : Theoretically, there is among our citizens no in- ferior class, other than those degraded by crime or other vicious indulgences of the passions. Those who are entitled to exercise the elective franchise are deemed equals before the law, and it is not admissible to arbitrarily brand, by stat- ute, one class of them, without reference to and wholly irrespective of their actual good or bad behavior (in the statute under discussion without reference to the merit or justice of the labor trouble) as too unscrupulous, and the other class as too imbecile or timid and weak, to exercise that freedom in contracting which is allowed to all others. ' ' To the same effect see, Ritchie v. The People, 155 111., 98, 116. In Matthews v. The People (202 111., 389, 401), the Illinois Supreme Court said: "An employer whose workmen have left him and gone upon a strike, particularly when they have done so without any justifiable cause, is en- titled to contract with other laborers or workmen to fill the places of those who have left him. Any workman seeking work has a right to make a con- tract with such an employer to work for him in the place of any one of the men, who have left him to go out upon a strike. * * * It is now well settled that the privilege of contracting is both a liberty and a property right. Liberty includes the right to make and enforce contracts, because the right to make and enforce contracts is included 230 in the right to acquire property. Labor is prop- erty. To deprive the laborer and the employer of this right to contract with one another is to vio- late Section 2 of Article 2 of the Constitution of Illinois, which provides 'that no person shall be deprived of life, liberty or property without due process of law,' it is equally a violation of the 5th and 14th Amendments of the Constitution of the United States, which provides 'that no person shall be deprived of life, liberty or property without due process of law,' and 'that no state shall deprive any person of life, liberty or prop- erty without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' " To the same effect see : Millett v. People, 117 111., 294. Adams v. Brenan, 177 111., 194. Fiske v. People, 188 111., 206. R. R. Co. v. Jacksonville, 67 111., 37. People v. Warren, 34 N. Y., 942. People v. Gillson, 109 N. Y., 389. In re Jacobs, 98 N. Y., 98. Pumpelly v. Green Bay Co., 13 Wall., 166. Wynehamer v. People, 43 N. Y., 378. Godcharles v. Wigeman, 6 Atl., 354. Powell v. Pennsylvania, 127 U. S., 686. H olden v. Hardy, 169 U. S., 366. Dent v. West Virginia, 129 U. S., 114. Yick Wo v. Hopkins, 118 U. S., 356. Gas Co. v. Light Co., 115 U. S., 650. People v. Rosenhay, 138 N. Y., 410. Colon v. Fisk, 153 N. Y., 188. People v. Marx, 99 N. Y., 377. Lawton v. Steele, 152 U. S., 133. Minnesota v. Barber, 136 U. S., 313. Barbier v. Connelly, 115 U. S., 31. State v. Juloiv, 31 S. W., 781. Coe v. Schultz, 47 Barb., 64. Frisbie v. U. S., 157 U. S., 160. Comm. v. Perry, 155 Mass., 117. 231 In Coe v. Schultz, 47 Barb., 64, in speaking of the constitutional limitations of the police power in creat- ing new offenses, the Court said : ' ' I am not willing to concede that the legislature can create a public nuisance, or a new definition of a public nuisance, unknown to the common law decisions. I am not willing to concede that the legislature can constitutionally declare an act or thing to be a common nuisance, which palpably, according to our present experience or informa- tion, is not and cannot be, under any circum- stances, a common nuisance by the common law definition, or common law decisions. I am not willing to concede that the legislature can consti- tutionally declare or authorize any sanitary com- mission or board to declare the keeping or the use, in any way, of sugar or vinegar, to be a common nuisance, because the one is sweet, and the other sour, or for any other reason. By such an unlim- ited power, it is easy to see that any citizen might be deprived of his property without compensa- tion, and without any colorable pretext that the public good required such deprivation. It is not impossible to conceive that at some future day there might be a legislator thinking the use of water in any way to be a nuisance. ' ' The attempted control by the legislature of labor advertising and labor contracts, is either a legitimate or an arbitrary exercise of the police power. Under the authorities above cited, it is, in my opinion, an arbitrary exercise of the police power and of no ef- fect. The safety, health, morals or welfare of the public in general, are in no way safe-guarded by the enforced insertion of vexatious matter in a labor advertise- ment. Mere harmless and passive inaction is made a substantive crime, and that where there is no rational duty, legal or moral, to make discovery. Silence with respect to matters not necessarily of general interest, is punished with statutory penalties in addition to the manifest inconvenience flowing from a form of adver- 232 tisement that defeats the very purpose of advertis- ing. The last portion of Section 2 of the act declares that to be false advertisement which is palpably not false advertisement: it declared that to be misrepresenta- tion which is palpably not misrepresentation, where there is no misstatement of fact, no coloring of cir- cumstance and no false and fraudulent inducement con- veyed no unfairness attempted and no concealment made of what should properly be disclosed. When the legislature defines an innocent avoidance of any representation to be a misrepresentation, it does a vain act, an act as futile as if it were to fix the hours of sunrise and sunset or to legislate that black is white. In Colder v. Bull (3 Dallas, 386, 388), Judge Chase, as early as the year 1797, said for the U. S. Supreme Court : "The legislature cannot change innocence into guilt or punish innocence as a crime, or violate the right to antecedent lawful private contract, or the right of private property." The vicious portion of the act is the last part of Section One, as follows : " FAILURE TO STATE in any advertisement, pro- posal or contract for the employment of workmen that there is a strike, lockout, or other labor troubles at the place of the proposed employment, when in fact such strike, lockout or other labor trouble then actually exists at such place, shall be deemed as false advertisement and misrepresen- tation for the purposes of this Act." Whosoever is not free to make known his wants with reference to labor, in his own way, so long as his purpose is consistent with the rights of others, is restricted in an essential element of the right to contract and is deprived of liberty and property. The right to advertise for labor is a necessary corollary of the right to employ labor. An arbitrary restriction of this right is a virtual confiscation of property. The portion of the law last cited is in my opinion, uncon- 233 stitutional. It is an arbitrary interference with liberty of contract, and an improper regulation of private business, and I do not believe that the courts will uphold it as a valid exercise of the police power of the state, and I therefore conclude that it is uncon- stitutional. NOTE: A number of prosecutions have been instituted under the above law; thus far (1907), none of them have been successful. Ed. LIABILITY OF A BANK FOE FAILURE TO PROTEST A NOTE SENT TO IT FOR COLLECTION AND FOR FAILURE TO NOTIFY THE PAYEE. (Beacon Falls Rubber Shoe Co., September 5, 1903.) "We should like to have the opinion of your legal department as to the liability of a bank on a note sent to it for collection, which they have failed to protest when payment has been refused, and also failed to notify the payee." It is the duty of a bank to use due diligence in mak- ing protest and giving notice of dishonor in case of non-payment of a note. If the bank has been guilty of negligence in the performance of its duties, the holder of the note is entitled to recover the actual loss occasioned by the improper conduct of the bank. If there is no loss there is no liability. WHETHER THE ADDING OF TURPENTINE TO VARNISH AND MIXING STAINS COMES WITHIN THE PROHIBITION OF THE CHILD LABOR LAW. (Tonk Manufacturing Company, September 2, 1903.) "We quote herein from page 13 of the Illinois Department of Factory Inspection and Laws re- lating thereto : ' They shall not be employed in any capacity in the manufacture of paints, colors or white lead.' "We do not manufacture, but we do add tur- pentine to varnish and we mix stains. Does this 234 i come under the law prohibiting children doing this work?" I am of the opinion that the employment of children in^ the mixing of turpentine and varnish and in the mixing of stains comes within the prohibition of the Child Labor Law. WHETHER A MINOR CAN LEGALLY ASSIGN HIS WAGES. (Chas. Emmerich & Co., September 14, 1903.) "One of our employes, under twenty-one years of age, some time ago purchased a suit of clothes, giving to the seller an assignment of his wages as guaranty of payment, also a letter signed by his father guaranteeing payment. The clothing company has now served notice upon us demand- ing us to withhold all money due the buyer for salary, etc., and stating that they would hold us responsible for the amount. Kindly advise us if we can legally obey the summon. Does the fact that the buyer is under twenty-one years of age invalidate the assign- ment of his wages, and can he legally force us to pay the wages demanded by the clothing con- cern? Will you kindly give this matter your prompt attention so that we may be put to no embarrass- ment by the clothing company?" The services and earnings of a minor child belong to his parents unless the child has been legally emanci- pated. Such emancipation may arise from an ex- press agreement or be implied from the conduct of the parent and the circumstances of the case, or by the marriage of the child with the consent of the par- ents. The minor, unless emancipated, has no right to make any assignment of his wages and the employer cannot be compelled to pay the same to the assignee. 235 THE RESPONSIBILITY OP THE CONSIGNOR WHEN GOODS ARE SHIPPED C. O. D. (Geo. E. Watson Co., September 3, 1903.) "We made a recent shipment to a customer by express C. 0. D. Part of the goods were not de- livered and he asks us to refund the value. The goods were sold f. o. b. Chicago. We would like to know where our responsibility ends. We also frequently ship goods by freight with draft at- tached to bill of lading. The goods are consigned to us and the bill of lading is endorsed to con- signor, which he gets when he pays the draft. Where does our responsibility end in that case! The goods also were sold f. o. b. Chicago. We enclose our customer's letter for further in- formation, and will you kindly request your gen- eral counsel, Mr. Levy Mayer, to pass on this question ? ' ' Inasmuch as the goods were sent C. 0. D. the title remained in the consignor, even though the goods were sold "F. 0. B. Chicago," although upon this proposition the authorities are conflicting. The respon- sibility of the consignor continues, therefore, until the goods are delivered to and accepted by the consignee. The same is true of the goods sent by freight with bill of lading attached to draft. The title remains in the consignor until the payment of the draft and the delivery of the bill of lading. Until this is done the responsibility of the consignor continues. RE-AFFIRMANCE OF OPINION OF SEPTEMBER 14, 1903, AS TO WHO SUSTAINS THE LOSS ON GOODS DAMAGED IN TRANSIT WHERE THE CONSIGNOR PAYS OR ALLOWS THE FREIGHT OR THE GOODS ARE SOLD "p. O. B. POINT OF SHIP- MENT. ' ' (American Steel & Wire Co., October 24, 1903.) "Kef erring to your circular of July 28th, 1903, giving opinion of Mr. Levy Mayer to Hibbard, 236 Spencer, Bartlett & Co. as to who sustains the loss on goods damaged in transit when the con- signor is not liable, beg to say that our counsel, Pam, Calhoun & Glennon, dissents on proposition No. 3 of that opinion." "Proposition No. 3" called for my opinion as to who must bear the loss where goods are lost or dam- aged in transit under a contract, which in the very words of the question propounded to me, is as fol- lows: "We quote nails to you at $2.50 rates F. 0. B. Chicago, freight allowed to your town. ' ' My prior opinion was to the effect that, in the ab- sence of other qualifying circumstances, the carrier was the agent of the consignor, and any loss would fall upon the consignor. That opinion expressly re- ferred to a prior opinion which stated that the pre- payment of freight by a consignor made the carrier his agent. Counsel for the Wire Co. comment upon my opinion by saying that "It is surely incorrect, "and the loss in such a case would fall on the consignee." I reply thus : Whether the title to goods passes upon the delivery to the carrier, is primarily a question of intention to be determined from the contract and from all the facts and circumstances of the case. It is a general rule that a delivery to a carrier, a fortiori to one especially by the purchaser, is a delivery to the vendee, the carrier, being considered as the agent of the vendee. If the vendor undertakes to make delivery at the vendee's residence, or place of business, or at a dis- tant place, he assumes the risk of carriage, and the title to the goods remains in him. These rules, how- ever, are not absolute and may be controlled by other circumstances showing an intention to reserve or to pass the jus disponendi of the goods. "F. 0. B." means only "free on board," i. e., that the consignor will put the goods on the cars free of charge to the consignee, in other words that the consignor will pay the cartage. 237 In Sheffield Furnace Co. v. Hull Coal and Coke Co., (Ala.), 14 So. Kep., 673, the court said: * ' There can be no doubt as to what these words, 'free on board,' mean, in the connection we find from here. Their meaning in contracts of this sort is plain and well understood. They import that the purchaser shall be free from all expense which may have attended the shipment and trans- portation to the point named. Had the provision related to the initial point of the transportation, the buyer would have been entitled to the shipment at that place free from all expense incident to loading the cars, all expense, indeed, incurred in the premises, up to and including the loading of the cars. Then it would have been upon the buyer to pay the freight the cost of transportation to the final destination of the consignment. The provision here having relation to the point of final delivery, it can mean nothing else than that the seller is to pay all costs and charges up to that point, and that the buyer is entitled to re- ceive the consignment free of all such costs and expenses." It is true that in some cases it is held that a deliv- ery F. 0. B. passes title and risk to the consignee, but in my opinion this is merely a reinstatement of the general rule that a delivery to the carrier is a delivery to the consignee. The title would pass even though the term "F. 0. B." was not used. A sale under an F. 0. B. contract prima facie passes title when the goods are put on board the cars, but this is not con- clusive. The effect of the words can be controlled by other circumstances. Undoubtedly the goods would be at the risk of the consignor until placed upon the cars, but it does not necessarily follow that thereafter they would be at the risk of the consignee. In Ogg v. Shuter, L. K. I. C. P. D. 47, plaintiffs entered into a contract to buy certain potatoes to be delivered free on board at Dunkirk, price to be paid in cash against bill of lading, plaintiffs to pay part of the price as earnest money. The Court of Common 238 Pleas held the vendor's intention to reserve title was overridden by the provision in the contract that the potatoes should be delivered "free on board." This decision, however, was reversed in the Court of Ap- peal (1 C. P. D., 47), the court holding that the title did not pass, even though the goods were sold F. 0. B., as there was an apparent intention to reserve title. Again, the words F. 0. B. alone do not necessarily refer to title or to delivery. They refer primarily to the expense of placing the goods on board the cars. It is true that "Delivery F. 0. B." would ordinarily pass the title upon such delivery. But even this would not be conclusive (Ogg v. Shuter, supra). In the case under discussion the goods are sold "$2.50 rates F. 0. B. Chicago." Nothing is said as to delivery. F. 0. B. refers to rates and not to title or to delivery. This is evidenced also by the punctuation. The con- tract meant that the rates or prices which the- con- signor quoted were "F. 0. B. Chicago," that is, they were to be the prices which the goods would cost the consignee at Chicago ; in other words, the goods would be put on board the cars at Chicago at the expense of the consignor. The freight expense thereafter in- curred was to be advanced by the consignee and de- ducted from the purchase price. Neimeyer v. Railroad Co. (Neb.), 40 L. B. A., 534, is squarely in point. There certain lumber was or- dered to be shipped from Waldo, Ark., to Omaha, Neb. The goods were sold "Prices F. 0. B. Omaha, Neb." It was contended that the goods were not delivered until their arrival at Omaha. The court said : "We think the true construction of the contract is the one placed thereon by the district court, and is in line with the explanation of the phrase in the contract under construction made by the first and last of the witnesses just named. The word 'Prices,' which precedes ( f. o. b. Omaha, Ne- braska,' is of importance in the construction of this contract. By that expression Neimeyer & Co. meant that the prices which they had fixed 239 to the lumber sold Simpson & Co. were to be the prices which the lumber should cost Simpson & Co. at Omaha. Not that the delivery of the lum- ber to Simpson & Co. should take place at Omaha, but that the price charged Simpson & Co. by Nei- meyer & Co. for the lumber was to be its price at Omaha. In other words, that Neimeyer & Co. should pay the freight on this lumber from Waldo, Arkansas, to Omaha, Nebraska; or, what is the same thing, that Simpson & Co., or their vendee, Dietz, might pay the freight, and then remit fiie purchase price of the lumber less the freight." The court continues: 1 ' The contract, then, between the parties, as evi- denced by their correspondence, does not provide that the delivery of this lumber should take place at Omaha. To give that construction to the con- tract, the expression, 'Prices f. o. b. Omaha,' would have to be read, * Delivery f. o. b. Omaha.' To give the contract this effect would be to put a violent and unnatural construction upon the lan- guage used." The question must, therefore, be determined by ref- erence to the other provision of the contract, "freight allowed to your town." The allowance of freight by the consignor to be deducted from the purchase price is the same in effect as a pre-payment by the con- signor. Neimeyer v. E. E. Co., 40 L. E. A., 534 (Neb.). Brewing Assn. v. Nipp, 6 Kan. App., 730 ; Suit v. Woodhall, 113 Mass., 391. What is the effect of the prepayment of freight by the consignor! In Devine v. Edwards, 101 111., 138, a seller of milk lived in Dundee, 111., and the purchaser lived at Chi- cago. The seller sued the purchaser to recover for the price of milk which he claimed to have sold and delivered to him. The purchaser interposed a defense based on this state of facts : He claimed that he had been buying milk from the plaintiff for five years; 240 that the cans did not hold what the parties supposed they did, and in consequence he had overpaid the seller. The court refused an instruction as follows : "The jury are instructed, that if they believe, from the evidence, that during the five years im- mediately prior to the commencement of this suit the defendant purchased milk of the plaintiff by the gallon, to be shipped from Dundee to Chicago, and that the plaintiff agreed to pay the freight on such milk, and that nothing was said by either the plaintiff or defendant in regard to the place of delivery, then the law makes Chicago the place of delivery." The Supreme Court held this instruction should have been given, thus ruling in effect that the payment of freight by the seller of the milk made the place, of delivery Chicago. In Brewing Assn. v. Nipp, 6 Kans. App., 730, the Brewing Company sold certain beer to the defendant to be shipped from Missouri to Kansas under a con- tract, which provided that the defendant should pay the freight and charge the amount of the same to the Brewing Company. The court said: "The delivery is ordinarily made to the pur- chaser by a delivery to the carrier. When the purchaser is to pay the freight the carrier is his agent. 'The illegality of the sale of intoxi- cating liquors frequently depends upon the place where the sale is made; this is governed by the place where the sale is completed by delivery. Where the vendor is to and does pay the freight to the place of delivery the place of delivery be- comes the place of sale.' 11 Am. & Eng. Encyc. of Law, 742, and cases there cited. 'If by the terms of the contract the seller is re- quired to send or forward the goods to the buyer, the title and risk remain in the seller until the transportation is at an end, after which time the title is vested in the buyer. Bloyd v. M. <& J. Pol- lock, 27 W. Va., 75; Fry & Hartman v. Lucas, 29 Pa. St., 356; Taylor, v. Cole, 111 Mass., 363, etc. ' 21 Am. & Eng. Encyc. of Law, 477, note. The freight charges were to be paid by Saun- ders in the first instance, but were to be charged to the Brewing Company, and deducted from the contract price of the liquors. Under a contract and transaction quite similar to these, the Su- preme Court of Iowa, in Gipps Brewing Co. v. DeF nance (91 Iowa, 101, 58 N. W. Rep., 1087), held that the sale was completed by the delivery of the liquors at their destination. Following these decisions, which we think are founded upon correct principles, we must hold that the sales under the contract in this case were made in Wichita, Kan. It is immaterial where the agreement to sell was made." In Berger v. State, 50 Ark., 20, the court said : * * By assuming to pay the cost of carriage, with- out any adjustment of the charge between them- selves and the intended buyer, the Lederers (the vendors) manifested the intent to hire the carrier to transport the liquor as their agent, just as they did the man employed to complete the trans- portation for them by delivery at Berger 's store." In Murray v. Nichols Co., 11 N. Y. S., 734, the court said : "The defendant proved that the deliveries were to be made in New York ; that although the goods came from Meriden, Conn., the freight was always charged and paid by the plaintiff (vendor). The risk of transportation was therefore upon him, and he in turn had his remedy for injuries to the goods against his carrier." In Vol. 11 Encyc. of Law (1st Ed.), p. 742, the rule is laid down as follows: "The illegality of the sale of intoxicating liquors frequently depends upon the place where the sale is made; this is governed by the place where the sale is completed by delivery, where the vendor is to and does pay the freight to the 242 place of delivery, the place of delivery becomes the place of sale." In Suit v. Woodhall, 113 Mass., 391, the court held, where goods were shipped from Kentucky to Massa- chusetts, the buyer paying the freight and deducting the same from the purchase price, that the sale took place in Massachusetts, as this was equivalent to an agreement to deliver in Massachusetts. The Supreme Court of this state in effect holds that the payment of freight by a consignor is conclusive evidence of an intention to reserve title. See Nei- meyer v. R. R. Co., 40 L. R. A., 334. I am of the opinion, however, that the better rule is that it is prima facie evidence only. It is, however, a very strong circumstance showing an intention not to pass title. The consignor makes the contract on his own behalf with the carrier. This is in effect an agree- ment to deliver at the place of business of the con- signee. Of course, if the consignor acts as the agent of the consignee, the rule is otherwise. I am of the opinion that the term "F. 0. B." as used in the above quotation refers only to rates and not to delivery, and that the general rule that deliv- ery to the consignee is not applicable for the reason that the consignor pays the freight. I, therefore, without hesitation, reaffirm my prior opinion. AS TO WHAT CONSTITUTES DOING BUSINESS IN MONTANA. (Illinois Manufacturers' Association, October 24, 1903.) "We desire to obtain the opinion of the general counsel as to whether or not the following state- ment of facts would constitute doing business in the State of Montana or whether the transaction would be considered interstate commerce : First. We have traveling salesmen residing in Montana who take orders from customers, which are forwarded to Chicago for approval and ship- ment. 243 Second. It is the custom to ship solid car lots, part of which are on orders received in the usual way and the balance consigned to the order of ourselves to be held there by some customer or transfer company to order on storage, later to be delivered to other customers when sold. In some instances, as a matter of expediency, the salesman assumes authority and delivers the goods to a customer before the order sheet has been stamped or 0. K. 'd at this office. No formal permission has been granted. However one sales- man has been permitted to continue this practice for some time. Without authority from us one salesman has used a rubber stamp in large type as follows: 'Montana Branch, Butte, Mont.' " The taking of orders by traveling salesmen does not constitute doing business in Montana. Nor does the use of the designation "Montana Branch" under the circumstances set forth in the letter, constitute "doing business." I am of the opinion, however, that the method of business transacted by the company as described in paragraph marked second of their letter is doing busi- ness in Montana, and subjects that company to the foreign corporation laws of Montana. The matter is covered by my opinion of this date to Deere & Co. CONSTITUTIONALITY OF THE ACT PROHIBITING THE WITH- HOLDING OF ANY PART OF THE WAGES OF LABORERS, ETC., UNDER THE GUISE OR PRETEXT THAT THEY ARE A GIFT OR GRATUITY, ETC. (Parlin & Orendorff Co., October 24, 1903). "Will you please be kind enough to procure for us an opinion by our able attorney, Mr. Levy Mayer, as to the constitutionality of an act ap- proved May 14, 1903, entitled 'An Act to regulate and enforce the payment of wages due laborers, servants and employes, by corporations doing 244 business in this state,' and on receipt of same, kindly favor us with copy of his opinion and oblige. ' ' Section 1 of the law in question is as follows : "Be it enacted by the People of the State of Illinois represented in the General Assembly: It shall be unlawful for any corporation doing busi- ness within this state to withhold from any of its laborers, servants or employes any part or per cent, of the wages earned by such laborer, servant or employe, beyond the date of the regular payday of said corporation, under the guise or pretext, that the amount of wages so withheld is to be given or presented to such laborer, servant or em- ploye, as a present or gratuity from said corpo- ration at the expiration of any future date, on condition that the services of such labored, servant or employe have been performed to the entire satisfaction of said corporation or upon condition that such laborer, servant or employe shall, unless sooner discharged by said corporation, remain in its employ until the expiration of some future date designated by said corporation, or under any simi- lar pretext or condition, but all such wages shall be paid in full by said corporation on its regular payday, provided, that nothing in this act con- tained shall be held to abridge the right of any corporation not making or requiring contracts of the class specified above to make such contract or arrangement as may be legal, concerning the pay- ment of wages to employes and provided further nothing herein contained shall be construed to af- fect the right of any corporation to contract for the retention of a part of the wages of said la- borer, servants and employes for the purpose of giving said servants, laborers, and employes in- surance, hospital, sick or other similar relief. ' ' The law prohibits only the withholding of wages earned by any laborer, etc., (1) under the guise or pre- text that the wages so withheld are to be given or pre- sented as a present or gratuity, at the expiration of 245 any future date on condition that the services of such laborer have been performed to the entire satisfaction of the corporation, or (2) upon condition that said laborer shall unless sooner discharged remain in the employ of the corpora- tion until the expiration of some future date designated by the corporation, or (3) upon any other similar pretext or condition. To violate the law the corporation must withhold wages earned, under a guise or pretext. If the wages are earned the corporation could not in the absence of the law lawfully withhold them unless it had a set- off or counterclaim in its favor. If wages earned are withheld under a guise or pretext the employer would not have a legal defense to a suit by such employe for the wages. If the wages are not withheld under a guise or pretext the law is not violated. Again, the guise or pretext for withholding must be that the wages are to be given as a present or gratuity. If the money so given is in fact a present or gratuity it is not wages earned. If it is wages earned it is not in fact a present or gratuity. To violate the law the wages must be earned and withheld under the pretext that they are not wages earned but a present or gratu- ity payable on condition. The law is also limited to cases where wages with- held are to be given as a present or gratuity, on con- dition that the employes' services have been performed to the entire satisfaction of the corporation; or upon condition that the laborer shall, unless sooner dis- charged, remain in the employ of the corporation 'until the expiration of a future date designated by the cor- poration ; or upon any other similar condition. If the wages are withheld under a guise or pretext that they are to be given as a present upon the hap- pening of any condition other than those specified, the law does not apply. The act further provides that "nothing in the act contained shall be held to abridge the right of any corporation not making or requiring contracts of the class specified above, to make such contract or arrange- ment as may be legal, concerning the payment of wages to employes * *" The effect of this proviso is merely to state that the corporations not subject to the operation of the law are not prohibited from making any contract, or arrangement concerning the payment of wages as may be legal. Corporations subject to the law are not pro- hibited in section one from making contracts concern- ing the payment of wages. No reference is made in any other portion of that section to the making of such contracts. The act merely prohibits the with- holding of wages earned under certain guises or pre- texts and not the making of contracts concerning the payment of such wages. Section 2 of the act provides : "That all contracts or agreements of the kind and character referred to and described in section 1 of this act, hereafter made by any corporation doing business in this state, are hereby declared to be illegal, against public policy and null and void, and no such agreement of contract shall con- stitute a defense upon the part of any such cor- poration, to any action brought by any such laborer, servant or employe for the recovery of any wages due him, and withheld from him by any such corporation, contrary to the provisions of this act." The remaining sections of the act refer to the pen- alties for violation, etc. No contracts or agreements are "referred to and described in section one of the act." It is a practical impossibility to make a con- tract to withhold "wages earned" under a "guise or pretext" that they are to be given or presented as a "present" or "gratuity" upon the happening of a certain condition. A contract cannot be made by one person. It must be mutual and binding on both par- ties. If a contract is made to withhold certain wages they are not held under a guise or pretext. If money is to be given as a bonus or gratuity upon certain con- ditions it is not withheld, under a "guise or pretext." 247 The making of such contracts is only prohibited by section one by implication. The law is therefore a legislative abortion. It pre- sents a series of contraditions and it is in effect a legal absurdity. It is improbable that a state of facts will arise to which the law can constitutionally apply. A corporation has the right to employ labor and to enter into contracts by which the labor may be em- ployed. Any restriction of this right is a violation of its constitutional privileges. On the other hand, the employe has the right to bestow his labor in the man- ner as to him shall seem most beneficial and included in this right is the liberty to enter into contracts free from legislative restrictions. Employer and employe have the right to enter into a contract, providing that the employe shall receive an additional bonus compensation, payable on a cer- tain condition, such as that the employe shall perform his services to the entire satisfaction of the employer, or that the employe shall remain employed a certain length of time. They could also lawfully agree that a certain amount or per cent, of the wages earned by the employe shall be payable in the future only upon a certain condition, provided that the amount retained does not in fact con- stitute a forfeiture for the breach of a contract. The law, if so construed as to prohibit the making of any contract concerning the mode or time of pay- ing wages, is in my opinion an interference with the liberty of contract, and is unconstitutional and void. THE CONSTITUTIONALITY OF THE FOREIGN CORPORATION LAW OF MASSACHUSETTS WHICH IMPOSES A TAX UPON THE ENTIRE CAPITAL STOCK OF THE FOREIGN CORPORA- TION. (N. K. Fairbank Company, October 24, 1903.) "Foreign corporations doing business in Massa- chusetts. Under chapter 437 of the acts of 1903, 248 being an act relative business corporations, which went into effect August 1st, 1903, certain changes were made in the laws affecting foreign corpora- tions, of which you have perhaps been advised by circulars from the commissioner of corpora- tions, Boston. The new law requires foreign cor- porations, in addition to copies of the by-laws and articles of corporation, to file an annual certificate of condition, very detailed as to assets and liabili- ties. This certificate is to be signed and sworn to by its president, treasurer and majority of its board of directors. There is also assessed upon foreign corporations an excise tax of 1-100 of 1 per cent, of the par value of their authorized stock, from which may be deducted, however, the amount of taxes paid by the corporations to any city or town in the commonwealth during the preceding year. The amount of such tax shall not exceed the sum of $1,000. We have been advised by our counsel that it will be necessary to comply with the requirements of the law as mentioned. Please let us know what other Illinois corporations, doing business in Massachusetts (that is to say, having perma- nent offices and carrying stocks of merchandise there) have decided to do in view of the above law. It seems to us that the tax is unjust because unequal. A corporation, for example, of $5,000,- 000 capital would be taxed $500 though it might employ 5 per cent, of its capital in the State of Massachusetts. Another corporation of the same capital might employ 50 per cent of its capital in Massachusetts but would be also taxed $500. It seems to us that any tax on foreign corporations is unfair that does not have regard to the pro- portion of capital stock employed by such corpo- rations respectively in Massachusetts. We would like to know, therefore, what other corporations have decided to do in this connection, if you are able to inform us." The State of Massachusetts has the right to pro- hibit foreign corporations not engaged in interstate commerce from doing business therein. It has the right to fix the terms upon which it will permit for- eign corporations to enter the state and transact local business there. These terms may be altogether unrea- sonable or even arbitrary, provided they are uniform and apply alike to all foreign corporations of the same class. In my opinion the state has the right to impose a tax upon the whole of the capital stock of a foreign corporation as a condition of its doing business in the state, irrespective of what proportion of the capital of such corporation is represented or employed in the state. I advise, therefore, that all foreign corpora- tions who are doing business in Massachusetts comply with the law. I do not pass upon the question of whether or not the Fairbank Company is doing business in Massa- chusetts. WHETHER THE MAINTENANCE OF A TRANSFER HOUSE IN A FOREIGN STATE SUBJECTS A CORPORATION TO THE FOREIGN CORPORATION LAWS OF THAT STATE. (Deere & Co., October 24, 1903.) "What we would like to know particularly is this: Whether the keeping of goods at transfer points, to be delivered on sales made by traveling salesmen, under contracts made by them, which contracts are made outside of the state, is consid- ered to be doing business in the state. For instance, one of our traveling men visits Youngstown, in Ohio, and makes a contract with the agent there for our goods. He sends that con- tract to us for our signature. We sign the contract and file it away. He orders ten plows on this contract, and we ship these plows from Columbus, Ohio, where a storage company is carrying a quantity of goods for us for that purpose. Would 250 this be considered doing business in that state under its established meaning?" A corporation is "doing business" in a state and is subject to the laws regulating foreign corporations unless its transactions within that state are protected by the commerce clause of the Constitution which gives to Congress the exclusive right to regulate commerce between the states. "Commerce" in a general sense means an inter- change of goods, wares, merchandise or property of any kind between nations or individuals, either by barter or purchase and sale. "Interstate commerce," or commerce among the several states of the United States, is commerce which concerns more states than one. It consists in intercourse and traffic and includes navigation and transportation of persons and prop- erty as well as the purchase, sale and exchange of commodities. Whenever an article of commerce has begun to move from one state to another, the .protection of the Con- stitution against state regulation or taxation attaches. That protection continues throughout the transporta- tion and until the goods have arrived at their destina- tion. As I have stated in my opinion of this date to Montgomery Ward & Co., the commerce clause also protects the sales of the importer in the original pack- age. Where does the protection of the commerce clause cease? In Brown v. Maryland, 12 Wheat., 419, 441, tfre United States Supreme Court, by Chief Justice Mar- shall, answered this question as follows : "It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive char- acter as an import." When does this incorporation take place? In Brown v. Maryland, supra, it is said that domestic and interstate commerce, 251 "though quite distinguishable when they do not approach each other, may yet, like the intervening colors between black and white, approach so nearly as to perplex the understanding as colors per- plex the vision in marking the distinction between them." And in Welton v. Missouri, 91 U. S., 275, Mr. Justice Field, delivering the opinion of the court, said: 4 ' There is a difficulty, it is true, in all cases of this character in drawing the lines precisely where the commercial power of Congress ends and the power of the states begins. ' ' It is, therefore, difficult to determine where the juris- diction of Congress ceases, and the power of the states begins. It is well settled that the sale of the im- ported article destroys its character as an import and mingles the article with the mass of property of the state, so as to subject it to state control. So also an import becomes mingled with the mass when the original package in which it was imported is opened or broken. Whether or not an import can become subject to the jurisdiction of state laws by any other act than the breaking of the original package, or by a sale by the importer, is a more difficult question and one upon which the authorities are in conflict. The question has not yet been squarely decided by the United States Supreme Court. In In re Minor, 82 Fed., 472, it is held that when goods have arrived at their final destination and are exposed for sale or use, they become part of the mass of the property of the state, even though they remain in the original package. In Brown v. Houston, 114 U. S., 622, 623, the Su- preme Court said of a tax imposed upon a certain lot of coal shipped from Pennsylvania and still in the boats in which it was shipped and still owned by the parties in the state from which it is shipped: "It was imposed after the coal had arrived at its destination and was put up for sale. The coal had come to its place of rest, for final disposal or 252 use, and was a commodity in the market of New Orleans. It might continue in that condition for a year or two years, or only for a day. It had become a part of the general mass of property in the state." And in Bobbins v. Shelby Co. Taxing District, 120 U. S., 489, 497, the Supreme Court said : "As soon as the goods are in the State and be- come part of its general mass of property, they will become liable to be taxed in the same manner as other property of similar character, as was dis- tinctly held by this court in the case of Brown v. Houston, 114 U. S., 622. When the goods are sent from one state to another for sale, or, in conse- quence of a sale, they become part of its general property, and amenable to its laws ; provided that no discrimination be made against them as goods from another state, and that they be not taxed by reason of being brought from another state, but only taxed in the usual way as other goods are." See also : 17 Ency. of Law (2nd Ed.), p. 71. Prentice & Egan on Commerce Clause, pp. 64 et seq. American Harrow Co. v. Shaffer, 68 Fed., 750. May v. New Orleans, 178 U. S., 496. Moore v. Bohr, 82 Fed., 19. Coal Co. v. Bates, 156 U. S., 577. Price v. City, 31 S. E., 619 (Ga.). While the question is not entirely free from doubt, I am of the opinion that a corporation which main- tains a "transfer house" in a foreign state, and there keeps a stock of goods which it delivers to its customers upon orders which may thereafter be received is not engaged in interstate commerce, but is doing business in that state and is subject to the foreign corporation laws thereof. 253 WHETHER A FOREIGN CORPORATION CAN BE COMPELLED TO PAY A LICENSE FEE FOR THE SALE OF SEWING MACHINES IN NORTH CAROLINA WHERE THE TITLE TO THE MACHINE DOES NOT PASS UNTIL DELIVERY. (Montgomery Ward & Co., October 26, 1903.) "We would like to know from the Association's counsel whether or not we are legally bound to take out a license to sell sewing machines in North Carolina ; and below we give you the circumstances that the state treasurer of North Carolina relies upon in making his claim that we are amenable to the license laws of his state relative to the sale of sewing machines : On June 16th we made shipment of a sewing machine and consigned the same to Montgomery Ward & Co., at Troy, Montgomery county, North Carolina. We drew on the purchaser of this ma- chine for the purchase price, making the draft payable at the Bank of Montgomery, of Troy, and attached to the draft the bill of lading of the rail- road company, which, upon payment of the draft would be endorsed by the bank to the purchaser. The purchaser upon presenting the bill of lading at the railroad station would then show his title to the sewing machine, and upon payment of the transportation charges on the same from Chicago to Troy would obtain possession; in other words, this method of handling the sale made it C. 0. D. shipment. The consignment arrived at Troy, but was seized by the sheriff of Montgomery county, who claims that we are violating the license laws of his state by failing to take out a sewing machine agent's license before attempting to sell machines in North Carolina, the claim being made by the state's treasurer, who directed the sheriff to seize the machine, that the transaction took place with- in the borders of that state; that is, by consign- ing the goods to ourselves and collecting the money 254 through a local bank and the transferring the bill of lading there, we were conducting the sale within North Carolina, and therefore selling sew- ing machines within that state contrary to its license laws. On the 31st of August the sheriff of Montgomery county sold the machine, under instructions from the state treasurer, and the same was delivered to the highest bidder, as we are informed by the sheriff. The position we take in this case is as follows : The sale was made in Chicago, inasmuch as all our quotations are made delivered at Chicago, or at our warehouse or factories when they are spe- cially stipulated, and the customer pays the trans- portation charges to his station. Under our views, the action of North Carolina authorities is in vio- Does the fact that we consigned the goods to ourselves, drew on the customer through his local lation of the interstate commerce laws, bank, and authorized the bank to consign the bill of lading, bring us within the laws of North Caro- lina so as to compel us to pay license fee? We attach herewith the correspondence between the state authorities and ourselves, and would ask that the same be returned to us. The state treas- urer also refers to a case in point that we would direct the counsel's attention to in the paper attached. Trusting we may have an early reply, as we anticipate more trouble of this sort until the mat- ter is settled one way or the other we are. ' ' The act of the legislature of North Carolina is en- titled "An act to raise revenue." It provides : "Section 32. Taxes in this section shall be im- posed as license tax for the privilege of carrying on the business or doing the act named. Section 51. Every manufacturer of sewing ma- chines and every person or persons or corpora- tion, engaged in the business in the selling the 255 same in this state, shall, before selling or offering for sale any machine, pay to the state treasurer a tax of $350 and obtain a license. ' ' The tax is, therefore, imposed as a license tax upon the business of selling sewing machines. The ques- tion as to the validity of the tax was decided by the Supreme Court of North Carolina in Sims v. Norfolk & W. R. Co., (41 S. E., 673). The Court said: "By the 'facts agreed' in this case, it appears that Sears, Boebuck & Co., of Chicago, have not paid said tax, nor obtained a license, and that prior to this transaction they had made several deliveries at various points in North Carolina on the lines of other interstate railroads running into this state, and that all these shipments, like the one here in question, were made on bills of lading, providing that the sewing machine should not be delivered till it was paid for by the per- son named as consignee. Thus the title could not pass till such payment was made to the common carrier, acting as agent of the shipper. This was an executory contract in Illinois, but there was no sale till the payment was made, and thus the sale was executed in North Carolina and the shippers are liable to the above tax. The title to this machine having remained in the shipper until such payment (Tied, Sales, Sees. 95, 97), the machine was properly levied on before such pay- ment for the license tax due by the shippers (Laws 1901, Ch. 9, Sec. 101, last paragraph of section). The well-known case of O'Neil v. Vermont, 144 IT. S., 324, 12 Sup. Ct., 693, 36 L. Ed., 450, is de- cisive of the point. There, in the shipment of liquor from New York into Vermont C. 0. D. it was held that the completed executory contract was in New York, but the completed sale was in Vermont, as here, Ober v. Smith, 78 N. C., 313, and State v. Groves, 121 N. C., 632, 28 S. E., 262, relied on by defendants were cases of an uncon- ditional delivery to the common carrier and, of course, the title passed to the consignee upon de- 256 livery to the carrier. State v. Wernwag. 116 N. C., 1061, 21 S. E., 683, 28 L. B. A., 297/47 Am. St. Bep., 873, is much like the present case." The Courts relied on O'Neil v. Vermont, 144 U. S., 324. That case related to the C. 0. D. sale of intoxi- cating liquors and was decided subsequent to the pas- sage of the Wilson act, which provides that intoxicat- ing liquors upon their arrival in a state or territory, shall be subject to the operation of the state laws. This rule applies exclusively to intoxicating liquors. The objection that the tax in question was a regu- lation of interstate commerce was not raised nor passed upon by the North Carolina court. I will, passed upon by the North Carolina court. I will, there- fore, confine this opinion to the question of whether or not the law above quoted constitutes a regu- lation of commerce contrary to the Commerce Clause of the Constitution, which gives to "Congress the ex- clusive right of regulation. The decisions of the United States Supreme Court and other courts have been far from uniform. The differences of opinion have not been so much upon fundamental principles as upon the application of these principles to precise cases under particular state statutes. It is, therefore, impossible to lay down an arbitrary rule as to where the line dividing interstate commerce from that which is purely domestic is located. On account of the im- portance of the question, even aside from the par- ticular facts, I have given it careful and extended consideration. Inasmuch as the Supreme Court of the United States is the ultimate authority on ques- tions of this character I have made no reference to the numerous and conflicting state court decisions. The question to be determined is whether or not the protection of the Commerce Clause of the Con- stitution extends to the sale by the importer after the goods have arrived in the state into which they have been transported. In Brown v. Maryland, 12 Wheat., 419, 447, it was stated that the power to regulate commerce could not be stopped at the external boundary of a state, but 257 must enter its interior. The Court held that the right to import included the right to sell, and said : "To what purpose should the power to allow- ing importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an es- sential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then as importation itself. It must be considered as a component part of the right to regulate commerce. Congress has a right, not only to authorize importation, but td authorize the importer to sell." The Court further held that the power of the state to tax commences when the importer has so acted upon it that it has become incorporated and mixed up with the mass of property in the state, which happens when the original package is no longer such in his hands. In Leisy v. Hardin, 135 U. S., 100, it was held that a state statute prohibiting the sale of intoxicating liquors, as applied to a sale by the importer in the original packages, or kegs, unbroken or unopened, of such liquors manufactured in and brought from another state was unconstitutional. To the same effect that the commerce clause pro- tects the sale of an imported article in the original package. See : Schollenberger v. Penn, 171 U. S., 1. Vance v. Vandercook, 170 U. S., 438. Gale v. Finkelstein, 54 S. W., 619 (Tex.). Miller v. Goodman, 40 S. W., 718; 91 Tex., 42. Prentice & Egan on Commerce Clause of Con- stitution, pp. 274, 275, 279. The sale must, however, be made in the original package. Any breaking of such package will cause the property to become incorporated in the mass of property in the state and subject to the state laws. An original package in general terms is defined to be "the unbroken package in the condition in which it is received by the carrier." 258 Prentice & Egan on Commerce Clause, p. 82. And the right of the importer to sell may be exer- cised through the medium of a salesman in the state to where the goods are sent. If the goods are consigned to the order of the con- signor and are delivered by an agent, or are con- signed to such agent, or are delivered to a carrier or express company who collects the charges, this con- stitutes interstate commerce, and the state can not require a license from the vendor or his agent for the privilege of selling or delivering. Brennan v. TitusvUle, 153 U. S., 289. Caldwell v. South Carolina, 187 U. S., 622. The state has the right to impose license taxes upon occupations such as peddlers, auctioneers, etc. In Brown v. Maryland, supra, the Court said : / "Auctioneers are persons licensed by the state, and if the importer chooses to employ them, he can as little object to paying for this service, as for any other for which he may apply to an officer of the state. The right of sale may very well be annexed to importation, without annexing to it, also, the privilege of using the officers licensed by the state to make sales in a peculiar way." In Emert v. Missouri, 156 U. S., 296, the validity of a state law taxing sales of goods by peddlers was assailed. The Court said: "The statute in question is not part of a reve- nue law. It makes no discrimination between residents or products of Missouri and those of other states ; and manifests no intention to inter- fere, in any way, with interstate commerce. Its object, in requiring peddlers to take out and pay for licenses, on demand, to any peace officer, or to any citizen householder of the county, appears to have been to protect the citizens of the state against the cheats and frauds, or even thefts, which, as the experience of ages has shown, are likely to attend itinerant and irresponsible ped- dling from place to place and from door to door." And the statute was upheld. 259 Such statutes, however, must not discriminate against the products of other states. The commerce clause protects property imported from other states against discrimination by reason of its foreign origin, even after it has become incorporated in the general mass of property in the state. Walling v. Michigan, 116 U. S., 446. Schollenberger v. Penn, 171 U. S., 1. Woodruff v. Parham, 8 Wall, 123. Welton v. Missouri, 91 U. S., 275. Ficklen v. Shelby County, 145 U. S., 1. Nor can such occupation tax be based upon the amount of the sales as applied to sales for non-resident principals. Cook v. Penn, 97 U. S., 666. The state, however, can only tax ordinary occupa- tions which are usually subject to tax. It can not tax business occupations where it can not tax the business. Leloup v. Mobile, 127 U. S., 640. Nor can it tax a person or persons representing non- residents solely, in the solicitation of orders, etc. Sockard v. Morgan, 185 U. S., 27. A tax on a vocation is held to be a tax on the ar- ticle. In Brown v. Maryland, supra, where a license on importer was held void, it was argued that the tax was not upon the article, but upon the person and that the state could tax occupations. The court said: "It is impossible to conceal from ourselves, that this is varying the form, without varying the substance. It is treating a prohibition which is general, as if it were confined to a particular mode of doing the forbidden thing. All must perceive that the tax on the sale of the article, imported only for sale, is a tax on the article itself." To the same effect see : Brennan v. Titusville, 153 U. S., 303. Welton v. Missouri, 91 U. S., 275. Leloup v. Mobile, 127 U. S., 640. In Vol. 17, Encyclopedia of Law (2nd Ed.), p. 121, it is said: "A state may impose a uniform tax on all sales 260 made in it, whether such sales be made by one of its own citizens or the citizens of another state, and whether the goods sold are the produce of the state imposing the tax, or of some other state." The editor in support of his text relies on the cases of Woodruff v. Parham, 8 Wall., 123, and Howe v. Gage, 100 U. S., 676. In Woodruff v. Parham, 8 Wall., 123, the city of Mobile, Ala., levied a tax on "sales at auction and sales of merchandise," etc. Woodruff and other auc- tioneers received in the course of their business for themselves or as consignees and agents for others, large amounts of goods and merchandise, the products of states other than Alabama, and sold the same in Mobile to purchasers in the original and unbroken packages. The court said: "The case before is a simple tax on sales of merchandise imposed alike upon all sales made in Mobile, whether the sales be made by a citizen of Alabama or of another state, and whether the goods sold are the produce of that state or some- other. There is no attempt to discriminate in- juriously against the products of other states or the rights of their citizens, and the case is not, therefore, an attempt to fetter commerce among the states, or to deprive the citizens of other- states of any privilege or immunity possessed by citizens of Alabama. But a law having such operations would, in our opinion, be an infringe- ment of the provisions of the Constitution which relate to those subjects, and therefore void." In Machine Co. v. Gage, 100 U. S., 676, a state law imposing an annual license upon all "peddlers" of sewing machines and selling by sample was upheld. Both of these cases can probably be justified under the power of the state to levy a license tax upon voca- tions. And in the later case of Emert v. Missouri, 156 U. S., 296, they are so classified. In 17 Encyclopedia of Law (2nd Ed.), p. 67, it is said: "The selling in one state of goods manufac- 261 tured in another state and shipped into the former state is interstate commerce, so far as the im- porter is concerned, whether the goods are sold before or after they are shipped into the state. A distinction has been drawn, however, between the principal and that of the agent. It is said that while the sale at its destination of an article which has been sent from another state may be regarded as an interstate sale, and one which the importer was entitled to make, yet the services of the individual employed at the place where the article is sold are not so connected with the sub- ject sold as to make the business of the person so employed a portion of interstate commerce. It is difficult to reconcile this distinction, however, with the decisions holding that the right to sell includes the right to sell by an agent." The importer has the right to employ an agent in the state to make his sales if he sells in a peculiar way that is, through the medium of a person such as an itinerant peddler or an auctioneer, whose voca- tion the state has a right to tax or license. The tax- ing or licensing of the vocation will not be consid- ered as an interference with interstate commerce. The state has the right to tax property imported from other states mingled with and forming part of the mass of property therein by a general property tax, provided such tax is laid alike upon all persons and there is no discrimination against the imported goods. Brown v. Houston, 114 U. S., 622. Coe v. Errol, 116 U. S., 517. Leloup v. Mobile, 127 U. S., 640. The only way in which commerce between the states can be legitimately affected by state laws is when, by virtue of its police powers and its jurisdiction over persons and property within its limits, a state pro- vides for the security of the lives, limbs, health and comfort of persons and the protection of property; or when it does those things which may incidentally affect commerce, such as the establishment and regu- 262 lations of highways, canals, railroads, wharves, fer- ries and other commercial facilities; the passage of inspection laws to secure the due quality and measure of products and commodities, and the passage of laws to regulate or restrict the sale of articles deemed in- jurious to the health or morals of the community. Robbins v. Shelby Tax Dis., 120 U. S., 489. Inasmuch as the license tax imposed by the legis- lature of North Carolina is for general revenue pur- poses and there is no provision in the law for any supervision, control or regulation of any business, it can not be justified under the police power. Brennan v. Titusville, 153 U. S., 289. Nor does it purport to be an inspection law, nor one to regulate the sale of injurious articles. In the present case, Montgomery Ward & Co. are not in person engaged in North Carolina "in the busi- ness of selling" sewing machines, nor have they in that state any agent who is so engaged. Therefore the law does not legally reach them. The tax in question can only be considered as a tax on the business of selling sewing machines. The ex- action of a license tax as a condition of doing a par- ticular business is a tax on the occupation. The tax can not be upheld as an occupation tax for the rea- son that Montgomery Ward & Co. do not sell through the medium of any agency which the state has the right to tax, nor is the law one that attempts to regu- late selling agents, etc. The tax can not be justified as a general tax, as it is not levied on the machine in common with all other property, as a part of the common mass of property of the state. As I have heretofore stated, property becomes mingled with the common mass when sold or used within the state. The present tax intercepts the import on its way to be- come so mingled and denies it that privilege without the payment of a license tax. The tax is not one in- directly affecting interstate commerce. It is a di- rect interference with such commerce. The authori- ties are unanimous to effect that interstate commerce can not be taxed in any form. The sale of an im- ported article in the original package is as much in- terstate commerce as the transportation of that ar- ticle. If it be held that the law under consideration applies to the facts in the present case, it is, in my opinion, unconstitutional, notwithstanding the con- trary decision of the Supreme Court of North Caro- lina. NOTE: The United States Supreme Court subsequently held in De- cember, 1903, that a transaction similar to that above stated under the North Carolina law was interstate commerce and not subject to the North Carolina act. Norfolk # W. E. Co. v. Sims, 191 U. S., 441. (Dec. 7, 1903.) See, also, the opinion of Sept. 29, 1905, for the Illinois Sewing Machine Co. relative to a similar Virginia statute and the fol- lowing cases: Caldicell v. North Carolina, 187 U. S., 622; Henderson v. Ortte, 38 So., 440 (La. 1905) ; Commonwealth v. Baldwin., 96 S. W., 914 (Ky. 1906). Ed. THE FOREIGN CORPORATION LAWS OF IOWA, MINNESOTA, WIS- CONSIN AND NORTH DAKOTA, AND AS TO WHETHER THE MAINTENANCE OF A TRANSFER HOUSE OR THE MAKING OF SHIPMENTS FROM OTHER STATES THROUGH THIRD PERSONS CONSTITUTES "DOING BUSINESS." (Kingman Plow Co., October 30, 1903.) I have your favor enclosing communication from Kingman Plow Co. That company asks my opinion as to whether or not it is necessary for it to comply with the foreign corporation laws of the states of Iowa, Minnesota, Wisconsin and North Dakota, and what re- quirements the company must comply with. The com- pany states "The method of carrying on the business in the states of Minnesota, North Dakota and Wisconsin is that our principal office is located at Peoria, where the books and accounts are kept, and to which office all contracts made by the travelers in the above territory are sent. We work the territory by a number of travelers and for convenience for filling orders for local shipments we carry a stock of goods at a transfer house in Minneapolis, which transfer house han- dles the goods under a transfer arrangement ; this transfer company storing the goods and shipping 264 them on orders. The travelers operating in said territory are under the supervision of our repre- sentative, who has office and desk room at the transfer house above mentioned. This representative superintends the traveling men working said territory and the contracts made by the travelers are by them sent to this repre- sentative and if he considers the contracts accept- able he has them forwarded to the home office with his approval and recommendation that they be accepted; but final action on the contract is made at the home office, except it might be in cases where our representative at Minneapolis is posi- tively assured that the parties are good. After the contracts are made if the parties order any addi- tional shipments, such goods, if they are to be shipped out of the transfer stock at Minneapolis, will be forwarded by the transfer agent and on orders from our local representative, but as be- fore stated, all accounts will be kept at Peoria and all billing will be done from the Peoria office. As to the filling of orders will explain that we handle goods made by other factories besides our own and if the order with the customer should be kept for a carload of buggies, say from Cincin- nati, why the shipment would be made from the factory direct to the customer, but the invoice would be made at the Peoria office. If the goods ordered by the customer consist of what we term a 'mixed carload,' they would probably be assem- bled at Peoria or Minneapolis and shipped from one or the other of these points, but the billing in every instance would be from the Peoria office. We may possibly also carry a transfer stock of goods at some points in North Dakota, most likely Fargo, which goods will be handled under instruc- tions from the home office, or from our local repre- sentative in Minneapolis. If you require any further information kindly advise us." The taking of orders by traveling salesmen subject 265 to the approval of the home office in Peoria does not constitute doing business outside of Illinois, and there- fore does not subject the company to the operation of the foreign corporation laws. As this appears from the correspondence to be the only method of transact- ing business pursued by the company in Wisconsin and Iowa, the company need not comply with the laws of those states. Whether or not keeping of a stock of goods at a transfer house, and the filling of orders direct from that house, is doing business is covered by my opinion of this date to Deere & Co. In that opinion I stated that such transactions are "doing business," and sub- ject the corporation to the operation of the foreign corporation laws. Inasmuch as the company has a transfer house at Minneapolis, and intends to establish one in North Dakota, it will be subject to the foreign corporation laws of the states of Minnesota and North Dakota. I do not fully understand the method pursued by the company in filling orders. I take it that upon re- ceipt of an order for goods which are manufactured by other parties, such orders are turned over to such parties in the home state, who fill them direct from their own factories in the home state. If this is cor- rect, this would not constitute doing business in the foreign state. As to the "mixed carloads," I assume that the goods not manufactured by the company are shipped to the point of assembly, from where they are re-shipped. This is not "doing business." Of course, if they are assembled at a "transfer house, ' ' the maintenance of such transfer house would constitute ' ' doing business. ' ' In answer as to what the provision of the laws of Minnesota and North Dakota are, I state them as fol- lows: MINNESOTA. The laws of Minnesota provide : "Section 3429a. Every corporation for pe- cuniary profit, organized in any other state, ter- 266 ritory or country, before it shall be authorized or permitted to transact any business herein, if al- ready established, or to acquire, hold or dispose of property, real, personal or mixed, within this state, or sue or maintain any action at law or otherwise in any of the courts of this state, shall have and maintain a public office or place in this state, for the transaction of its business, and shall appoint an agent, who shall reside in the county in which said public office is located, duly author- ized to accept service of process and upon whom service of process may be had in any action to which said corporation may be a party, and serv- ice upon such agent shall be taken and held as due and personal service upon such corporations. A duly authenticated copy of the appointment of said agent shall be filed in the office of the sec- retary of state, and a certified copy thereof shall be prima facie evidence of the appointment and authority of such agent. (L. 1899, ch. 69, sees. 1, 2; taking effect July 1, 1899.) Section 3429b. Every corporation for pecuniary profit, organized in any other state, territory or country, now or hereafter doing business within this state, shall file in the office of the secretary of state a copy of its charter or certificate or arti- cles of incorporation, duly certified and authenti- cated by the proper authority; and the principal or agent in this state of the said corporation shall make and file with the secretary of this state, with the articles or certificates above provided for, a statement duly sworn to, showing the proportion of the capital stock of the said corporation which is represented by its property located and business transacted in this state; and such corporation shall be required to pay into the state treasury the sum of fifty dollars ($50) for the first fifty thousand dollars ($50,000) or fraction thereof of such proportion of capital stock, and the further sum of five dollars ($5) for every additional ten thousand dollars ($10,000) or fraction thereof of 267 such proportion of capital stock, and no increase of the capital stock of any corporation shall be valid or effectual until such corporation shall have paid into the state treasury the sum of five dollars ($5) for every ten thousand dollars ($10,000) or fraction thereof of such increase of said propor- tion of capital of such corporation. In determining the proportionate share of the capital stock of such corporation upon which it shall pay license fees as aforesaid, the business of said corporation transacted in and out of this state during the years immediately preceding the filing of its articles or certificates as above pro- vided for shall be considered and control. Upon a compliance with the above provisions by the said corporation, the secretary of state shall execute and deliver to said corporation a certificate that said corporation has duly complied with the laws of this state, and is authorized to do business herein, stating the amount of its capital and of the proportion thereof which is represented in this state, and such certificate shall be prima facie evidence that the said corporation is entitled to all the rights and benefits of this act, and of the valid creation and incorporation of such corpora- tion, and such corporation shall enjoy those rights and benefits for the period of thirty years from and after the date of such certificate, unless the charter or corporate existence of such corpora- tion shall sooner expire under its own provisions or those of the state under whose laws it was cre- ated, and the right and privilege of such corpora- tion to so transact business and acquire and hold property in this state, may be renewed for like periods by refiling its articles of incorporation with the secretary of state, and by payment of like fees whenever pursuant to the provisions of this act, its said right and privileges shall have expired. (L. 1899, ch. 69, sec. 3, as amended by L. 1899, ch. 70; taking effect April 7, 1899.) Section 3429c. Every corporation for pecuniary 268 profit, organized in any other state, territory or country now doing business in, or which may here- after do business in this state, which shall neglect or fail to comply with the conditions of this act, shall be subject to a fine of one thousand ($1,000) dollars, to be recovered before any court of com- petent jurisdiction; and it is hereby made the duty of the secretary of state immediately after October first (1st) eighteen hundred and ninety- nine (1899), and as often thereafter as may be advised that corporations are doing business in contravention of this act, to report such fact to the county attorney of the county in which the busi- ness of such corporation is located, and the county attorney shall, as soon thereafter as practicable, institute proceedings to recover the fine herein- before provided for, which fine shall be paid into the state treasury ; and no corporation which shall fail to comply with the provisions of this act can mantain any suit or action, either legal or equit- able, in any of the courts of this state, upon any demand, whether arising out of contract or tort; Provided, that nothing in this act shall be taken or construed as releasing any such corporation from fully complying with any of the provisions of the existing laws of this state; and provided further, that the provisions of this act shall not apply to corporations engaged in an exclusively manufacturing business in this state ; nor to drum- mers or traveling salesmen soliciting business in this state for corporations which are entirely non- resident ; nor to any corporation engaged only in the business of loaning money or investing in se- curities in this state, including all business inci- dentally growing out of the same and the handling of such real estate and other property as may be taken by foreclosure or otherwise in liquidation of such loans or securities ; and provided further, that none of the provisions of this act shall apply to or in any manner affect corporations which may 269 be organized for the purpose of raising and im- proving live stock, cultivating and improving farms, garden or horticultural lands, growing sugar beets, or any corporation founded for the purpose of canning fruits and vegetables. Pro- vided, that this act shall not apply to any foreign corporation heretofore duly licensed or authorized to transact business in this state and which has heretofore paid to the state treasurer the fees on capital stock required of domestic corporations under section 3391 of the compiled statutes of 1894, or any corporation whose sole business in this state is the transportation of freight or pas- sengers, or both freight and passengers by water. (L. 1899, ch. 69, sec. 4; taking effect July 1, 1899.) Section 3429d. That chapter 332 of the general laws of the state of Minnesota for the year of 1895, entitled 'An act to provide for the appoint- ment, by corporations created or organized under the laws of another state, of agents to receive service of summons', be and the same is hereby repealed. (L. 1899, ch. 69, sec. 5; taking effect July 1, 1899.) Section 3429e. The transfer agent in this state of any foreign or domestic corporation, whether such agent shall be a corporation or a natural per- son, shall be at all times during the usual hour of transacting business, exhibit to any stockholder of such corporation, when required by him, the transfer book and a list of the stockholders there- of if in their power to do so, and for every viola- tion of the provisions of this section such agent, or any officer or clerk of such agent, shall forfeit the sum of two hundred and fifty dollars ($250), to be recovered by the person to whom such re- fusal was made." Sections 5200 and 5204 provide for the service of process on foreign corporations. Sections 5890 and 5891 provide: "Section 5890. A foreign corporation may 270 prosecute in the courts of this state, in the same manner as corporations created under the laws thereof. (G. S. 1878, ch. 76, sec. 5555.) Section 5891. A foreign corporation cannot maintain an action in this state upon an obligation or liability arising out of, or in consideration of, an act which is contrary to the law or policy of the state, or which is hereby forbidden in respect to corporations or associations therein whose gen- eral business is similar to that of such foreign corporation. (G. S. 1878, ch. 76, sec. 3; Kelley's Statutes, sec. 5556.)" NORTH DAKOTA. The laws of North Dakota provide : "Section 136. No foreign corporation shall do business in this state without having one or more places of business and an authorized agent or agents in the same, upon whom process may be served. Section 3261. No foreign corporation, associa- tion or joint stock company except an insurance company, shall transact any business within this state, or acquire, hold or dispose of property, real or personal, within this state, until such corpora- tion shall have filed in the office of the secretary of state a duly authenticated copy of its charter or articles of incorporation and shall have com- plied with the provisions of this chapter; Pro- vided, that the provisions of this chapter shall not apply to corporations created for religious or charitable purpose solely. Section 3262. Such charter or articles of in- corporation shall be recorded in a book to be kept by the secretary of this state for that purpose. Section 3263. Such corporations, association or joint stock company, shall by a duly executed in- strument, filed in the office of the secretary of state, constitute and appoint the secretary of state and his successors, its true and lawful attorney, 271 upon whom all process in any action or proceed- ing against it may be served and therein shall agree that any process which may be served upon its said attorney, shall be of the same force and validity as if served upon it personally in this state, and that such appointment shall continue in force irrevocable so long as any liability of the corporation, association, or joint stock company, remains outstanding in this state. Service upon such attorney shall be deemed sufficient service upon the corporation, association or joint stock company. Whenever any process against any for- eign corporation, association or joint stock com- pany, doing business in this state, shall be served upon the secretary of state, he shall forthwith mail a copy of such process, postage prepaid, and di- rected to such corporation, association or joint stock company at its principal place of business, or if it is a corporation, association or joint stock company of a foreign country, to its resident man- ager in the United States, or to such other person as may have been previously designated by it, by written notice filed in the office o'f the secretary of state. As a condition valid and effectual serv- ice, the plaintiff shall pay to the secretary of state, at the time of the service, the sum of two dollars, which the plaintiff shall recover as taxable costs, if he prevails in his action. The secretary of state shall keep a record of all such processes which shall show the time and hour of service. Section 3264. Any failure to comply with the provisions of the last three sections, and with sec- tion 3116 of this code, shall render each and every officer, agent and stockholder of any corporation, association or joint stock company, failing to com- ply herewith, jointly and severally liable on any and all contracts of such corporation, association or joint stock company made within this state during the time such corporation, association, or joint stock company is so in default. Section 3265. Every contract made by or on 272 behalf of any corporation, association or joint stock company, doing business in this state, with- out first having complied with the provisions of sections 3261 and 3263, if other than an insurance company, shall be wholly void on behalf of such corporation, association or joint stock company and its assigns, but any contract so made in vio- lation of the provisions of this section may be en- forced against such corporation, association or joint stock company." NOTE: As to whether the maintenance of a "transfer-house" con- stitutes "doing business" by a foreign corporation, see opinion of July 13, 1907, for the Kingman Plow Co. and also the cases of Sock Island Plow Co. v. Peterson, 93 Minn., 356, 101 N. W., 616, and Thomas Mfg. Co. v. Knapp, 112 N. W., 989 (Minn., July 5, 1907). Ed. WHAT CONSTITUTES A VALID AND ENFORCEABLE GUARANTY OF AN ACCOUNT. (Beacon Falls Rubber Shoe Co., October 30, 1903.) "We would like to have counsel's opinion as to whether or not the following letter from a sec- ond party can be construed as a guarantee of an account due us by a third party, and whether in the subsequent insolvency of the third party, we have any recourse against the second party. ' In regard to account, will say that you need not worry about this. It may be possible that I will take the stock and close it out for him. He is not insolvent but has simply got overstocked, and will be a little slow in pay- ing up, but I will see that you are paid. ' We do not know whether the contingent cir- cumstances would have any influence on the case, but will state them. When we first opened the account with the third party our orders came through the second party, and the goods were billed to him, but shipped di- rect to the third party, and all bills contracted in the name of the second party were paid promptly. Subsequently the third party began ordering 273 goods direct, and we billed the goods di- rect. The third party did not take care of his accounts as promptly as we expected, and we crowded him for the money. He evidently in- formed the second party of this, as the above letter came unsolicited, and was not in answer to any communication of ours, we having had no corre- spondence with him in reference to the third party's accounts. The second party was a large customer of ours, and we naturally respected his wishes, feeling that from our previous experience he was un- doubtedly familiar with the financial condition of the third party, and was interested to such an ex- tent that he did not care to have us crowd the third party at that time. When the third party went into bankruptcy it was discovered that the second party was his largest creditor. ' ' It is necessary to the validity of a guaranty that there should be a consideration therefor, unless the guaranty is under seal. Where the guaranty is col- lateral to the principal contract, but is made at the same time there need not be any consideration other than that moving between the creditor and the original debtor under the principal contract. Where, however, the guaranty is made subsequent to the creation of the debt and was not the inducement to it, the consideration of the original debt will not sup- port it. There must be a new and further considera- tion, such as an extension of the time payment, a for- bearance to sue, etc. In the present case the guaranty was executed after the credit had been given. A new consideration was, therefore, necessary. It does not appear that the guar- anty was given in consideration of any promise by the creditor to forbear to sue. The fact that there was an actual forbearance is not sufficient unless there was also an actual agreement to forbear. Again there is no request by the guarantor that the creditor refrain from suing. If all of the facts have been given me and if my 274 interpretation of the question is in accord with the facts, then I am of the opinion that the guaranty is un- enforceable. WHETHER THE STATE OF IOWA HAS THE RIGHT TO TAX PRI- VATE CARS OF A FOREIGN CORPORATION USED EXCLUSIVELY IN HAULING ITS OWN PRODUCT. (Kingman Plow Company, October 30, 1903.) "Enclosed we hand you a letter and blank re- port from the executive council of Iowa. We de- sire to have your opinion whether or not this law applies to concerns like ours, that may own a few private cars. In further explanation will say that we are the owners of nine freight cars which were purchased by us for the purpose of using in our business, but being handled by the railroad com- panies, we cannot prevent them when in their hands to use them at times for carrying freight other than their own; and when they do so, they make a report of the use of such cars, and pay us for such use. If you need any further information to for- mulate a decision as to whether we are to comply with the law and make such report, kindly advise. You will understand that these cars are held by us the same as any other person's property, and we may pay taxes on such property in our own company. We have had similar blanks from a number of the northwestern states who seem to want us to hold these cars for taxation, and that we are liable in each state in which these may hap- pen to travel, and it will be quite a burden for us to own freight cars." The act in question (Chapter 62, Acts Twenty-ninth General Assembly, approved April 12, 1902) is en- titled: "An act defining and providing for the taxation of freight line and equipment companies." Section 1 provides : 275 "FREIGHT LINE AND EQUIPMENT COMPANIES. Ev- ery company engaged in the business of operating cars, not otherwise listed for taxation or taxed in Iowa, for the transportation of freight whether such car be owned by such company, or any other person or company, over any railway line or lines, in whole or in part within this state, such line or lines, not being owned, leased or operated by such company, whether such cars be termed box, flat, coal, ore, tank, stock, gondola, furniture or refrig- erator cars, or by some other name, shall be deemed to be a freight line company. Every company en- gaged in the business of furnishing or leasing cars of whatsoever kind or description of any rail- way line or lines, wholly or partially within this state, such line or lines not being owned, leased, or operated by such company, and such cars not being otherwise listed for taxation in Iowa shall be deemed to be an equipment company." Sections 2 and 3 provide for verified statements. Clause 6 of Section 2 provides that the company shall make a report as follows: "The aggregate number of miles traveled by its cars during the preceding calendar year while said cars were used in transporting freight either to points in this state or between a point within this state and a point without this state; but not including the mileage in this state or elsewhere, of its cars, while the said cars are used in transport- ing freight not consigned either to or from some point within this state." Section 4 provides : "Upon the meeting of the executive council on the second Monday of July in each year, it shall value and assess as the property of said company within this state, the cars of the said company necessary, under the circumstances ordinarily at- tending the use of such cars, for the mileage to be reported under paragraph six of the preceding section of this act, after examining such state- ments and after ascertaining the actual value of 276 said property of such company therefrom, and from such other information as it may have or obtain. For that purpose the executive council may require such company by its agents or offi- cers, to appear before said council with such books, papers, or additional statements as the council may require, and may compel the attend- ance of witnesses in case said council shall deem it necessary to enable it to ascertain the actual value of such property. From the entire actual value of the property within the state so ascer- tained, there shall be deducted by the said council the actual value of all cars locally assessed, and one-fourth of the residue of such actual value so ascertained, shall be by the executive council as- sessed to said company." I assume that the company merely owns the cars in question, that they are not owned through the medium of an independent company, that the company does not operate the cars in any way that it does not use them for the transportation of freight other than the shipment by it (except where the railroad company uses the cars without the company's knowledge or consent) that it does not use the cars except as a re- ceptacle for goods which it ships, that the cars are handled by the railroad company, and that the plow company does not furnish or lease such cars to others. I assume also that the cars are used by the company for the shipment of its own products from points out- side of Iowa to points in Iowa. I am of the opinion that the plow company is not a company "engaged in the business of operating cars * for the transportation of freight over any railway line or lines," and that it is not a company % " engaged in the business of furnish- ing or leasing cars * * * to be used in the operation of any railway line or lines" and therefore the plow company does not, in my opinion, come with- in the letter of the law. If my assumption as to the facts is correct, the plow company is engaged in interstate commerce. It 277 is beyond the power of a state to levy a tax which is in substance and effect a direct tax on interstate commerce, but this does not deprive the state of the power to levy a property tax upon property employed in interstate commerce having a situs within their jurisdiction. If a corporation owning rolling stock does business in states other than the state of its in- corporation, and uses such rolling stock in the state where it does such business, the situs of such property will be in the state where it is so used, and such state may levy a tax on the average amount of the rolling stock thus used, even though the incorporation is en- gaged in interstate commerce. Under the facts stated in its present inquiry and those referred to in my opinion to the Plow Company of this date, it appears that the Plow Company ships its own goods to Iowa in its own cars, and the cars, when emptied, are returned to the place of shipment outside Iowa, and are not used in any other way (ex- cept as set forth in the letter of the Plow Company) ; the Plow Company does no business of any kind in Iowa, except as aforesaid, and I am, therefore, of the opinion that the situs of such cars is outside of Iowa, and the act under consideration cannot constitutionally apply to the Plow Company, because of its business being exclusively interstate commerce. See my opin- ion to Illinois Zinc Company of July 24, 1901. WHETHER A CARRIER IS LIABLE FOR GOODS DELAYED IN TRANSIT ON THE LINES OF A CONNECTING CARRIER. (Austin Manufacturing Company, October 30, 1903.) "Here is the proposition: Our customer in Texas orders a carload of goods to be shipped over a road designated by him. We ignored the routing instructions and gave the shipment to a Chicago road, which we will term X, from which road we get a clear bill of lading, with no stipu- lation on our part or on their part, as to what connection they shall turn the shipment over to to 278 carry it from the end of their line to its destina- tion. The X road turns the cars over to the Y road at St. Louis three days after they receive it, and for several weeks thereafter neither we nor our customer were able to learn anything about the car, although frequent tracers were sent out after it. After waiting five weeks the custo- mer notifies us that he will not receive the goods when they do arrive and fills his requirements elsewhere. At the end of seven weeks, or, to be precise, fifty-two days after the Y road received the ship- ment at St. Louis, it delivers it at destination, where our customer refuses to accept it. As we ignored the customer's routing instructions, we can not compel him to take the goods. Now, the point is, have we not recourse against the railway for the unreasonable time consumed by it in transporting this shipment, on account of which we have lost the sale ! We ' prepaid the freight on the car to the Texas point, amounting to $264.00; the return freight will be the same, so we are out the profit on the sale and $528.00 in freight. Is anyone responsible to us, in whole or in part, for this loss! If so, to what extent, and is our legal claim against the X road or Y road? We should like to see this question passed upon by the able attorney of our association and feel sure that it will bring out points of interest to all our members." The question as to the liability of a carrier of goods for damages caused by delay in transit is covered by my opinion to the Association under date of October 28, 1902, in answer to the query of F. T. Bentley, chairman of the Traffic Committee. If the delay occurs on the initial carrier's own line, such carrier can not escape liability because the goods are to pass over other lines. If the delay occurs on the line of a connecting carrier, such carrier is liable. Whether the initial carrier is liable for a delay oc- curring on the line of a connecting or intermediate 279 . carrier presents a more difficult question, and one upon which the authorities are not in unison. Of course, the initial carrier may contract specially for a through liability. The courts of Illinois have adopted the rule that the initial carrier by receiving goods for transportation to a point beyond its own line over con- necting lines and issuing a through bill of lading is responsible for the safe and prompt carriage of the goods over the entire route. 7. C. R. R. v. Frankenberg, 54 111., 88. I. C. R. R. v. Copeland, 24 111., 332. 7. C. R. R. v. Johnson, 43 111., 389. 6 Ency. of Law (2nd Ed.), pp. 611-12. The carrier may, however, by special contract with the shipper, and not by general notice, limit its lia- bility to such damage or loss as may occur on its own line of carriage. If the shipper takes a receipt for his goods, or bill of lading from the carrier, contain- ing conditions limiting the liability of the carrier in such way as it is competent for him to do with knowl- edge on the part of the shipper of such conditions con- tained in such receipt or bill of lading, it becomes his contract as fully as if he had signed it. 7. C. R. R. Co. v. Frankenberg, supra. 6 Ency. of Law (2nd Ed.), p. 639. And if the shipper assent to the restriction of lia- bility, he is bound thereby. Where there is a delay for which the carrier is li- able, the ordinary measures of damages is the differ- ence between the market value of the property at the time and place at which the delivery should have been made and the value when delivery was actually made, whether the difference in value was a result of a de- cline in the market or of damage to the goods suffered in consequence of the delayed delivery. Interest should be added, and the freight charges to the place of de- livery if unpaid, should be deducted. There may be circumstances under which this rule of damages may be inequitable, as, for instance, if the carrier has undertaken to carry within a certain time or for a given purpose. Where the owner of the 280 goods has made a sale of them, provided they are de- livered in a certain time, and the carrier, being in- formed of the fact, undertook to carry and deliver them within that time, the carrier is liable for what- ever the owner had lost for the failure to deliver in time, and this would be the difference between the con- tract price and the market price of the goods when delivered. As I am not familiar with all the circumstances of the case as to the nature of the goods, the contract under which the goods were sold, the contract with the carrier, and whether or not there was a market for the goods at the destination, and whether the goods have since been sold, I can express no opinion on the measure of damages applicable to the facts of the present case. WHETHER BOOK ACCOUNTS CONSTITUTE CAPITAL EM- PLOYED*' WITHIN THE MEANING OF THE BONUS ACT OF PENNSYLVANIA. (Oliver Typewriter Co., October 30th, 1903.) " Referring to the opinion of Mr. Levy Mayer, under date of October 7th, 1901, concerning the constitutionality of the so-called 'Hosack' taxa- tion or bonus act of Pennsylvania, will you kindly inform us whether it would be proper to eliminate book acounts in making up statement of the amount of capital employed in that state under the terms of that act. We have been advised that such accounts are exempt. It is also our desire to know whether a foreign corporation doing business in Pennsylvania is liable for any other taxes levied in that state, and if so, the basis of same." The meaning of the phrase "capital actually em- ployed wholly within the state of Pennsylvania ' ' is set forth in my opinion to the Oliver Co. under the date of January 15, 1902. The law provides that the tax shall be paid by the corporation upon "the amount 281 of their capital actually employed or to be employed wholly within the state of Pennsylvania. ' ' While book accounts probably come within the meaning of the term "capital" they are not in my opinion "capital actually employed" in Pennsylvania within the mean- ing of the act. As I am not advised as to what dis- position is made of the proceeds of the book accounts when collected, I can express no opinion upon whether or not they come within the meaning of the term "to be employed." The other provisions of the Pennsylvania law regu- lating foreign corporations are set out in an opinion to the Sanford Mfg. Co. under date of July 20, 1901. The only other taxes for which a corporation is liable are the general property taxes levied alike upon all property located in Pennsylvania, whether owned by residents or non-residents. AS TO WHAT TAXES FOREIGN CORPORATIONS ARE SUBJECT TO IN PENNSYLVANIA. (Oliver Typewriter Co., November 21, 1903.) "Kef erring to your favor of the 31st ult, we acknowledge receipt of copy of the communica- tion received by you from Mr. Levy Mayer in re- ply to our recent inquiry. May we trouble you further to find out whether an annual tax of five mills on the amount of cap- ital stock reported as being actually employed in that state, should be considered as being the general property taxes referred to in Mr. Mayer's opinion. Your further report on this point will be ap- preciated." The annual tax of the five mills on the amount of capital stock actually employed in the state of Penn- sylvania, is in the nature of a license tax, imposed as a condition precedent to the transaction of business in that state by a foreign corporation. The state is not excluded, by the imposition of this tax, from levy- 282 ing an additional tax upon the property of the cor- poration having a situs within the state. The com- pany is therefore subject, in addition to the license tax, to the payment of a property tax upon its prop- erty situate in Pennsylvania to the same extent as all other property situate in that state. MEANING OF THE CHICAGO ORDINANCE REQUIRING A LI- CENSED ENGINEER TO BE IN CONSTANT ATTENDANCE AND AS TO WHETHER THE CITY CAN REQUIRE A LICENSED EN- GINEER IN A BUILDING IP IT IS SUPPLIED WITH STEAM FROM A NEIGHBORING PLANT. (Illinois Maintenance Company, October 30, 1903.) "As a member of your association we would like to ask whether there is any law in the city of Chicago requiring us to have a licensed en- gineer in charge in a building to which we sup- ply steam at a pressure of 60 pounds through a pipe line from a boiler plant in another building across the street, the boiler plant in the building in question being entirely shut down and there being no tank or boiler in said building under the pressure; neither is there anv steam engine, the only steam used in this building being used for heating, cooking and house pump purposes. We should also like to ask for an interpreta- tion of the following extract from paragraph 1932 of chapter 64 of the revised code of the city of Chicago, which reads: 1 It shall be the duty of the board of examiners to see that each boiler plant, in the city of Chi- cago, shall have a licensed engineer, or boiler or water tender, or both, as provided therein, in charge at all times when working under pressure. ' Does the above mean that such licensed engineer shall be in personal attendance constantly, or does it mean that there shall be one such licensed engineer in charge and responsible for the condi- tion of the plant, but not necessarily in constant 283 personal attendance during all hours that the plant is in operation? The latter interpretation is the common prac- tice in Chicago." The chapter of the Code of Chicago relating to the licensing of engineers is entitled " Stationary En- gineers" (Chap. 64). Section 1 (1923) provides for the appointment of a board of examiners "consisting of three practical engineers, who shall be competent judges of the con- struction of steam boilers and engines/' for the pur- pose of examining applicants for licenses for engineers and boilers or water tenders. Section 2 (1924) refers to engineers and persons having charge of steam boilers. Section 4 (1926) provides that an applicant for an engineer's license "must be a machinist or engineer, having at least two years' practice in the management, operation or construction of steam engines and boilers/' .and that "an applicant for a boiler tender's license must be a person who has a thorough knowledge of the construction, management and operation of steam boilers." Section 9 (1931) provides: "No steam engine or boiler subject to the pro- visions of this shapter shall be used, managed or operated in the city of Chicago, except by an en- gineer or boiler or water tender as provided here- in, and who shall have been duly licensed as pro- vided herein, and who shall have and exhibit a certificate thereof. ' ' The remainder of the section provides penalties for violation. The act of the Legislature of Illinois empowering the city to regulate steam boilers provides : "That the city council in cities, and the presi- dent and board of trustees in towns and villages, shall have power to adopt ordinances within their respective limits, to provide for the examination, 284 licensing and regulations of persons having charge of steam boilers under steam pressure, exhausting through an engine, to fix the amount, terms and manner of issuing and revoking li- censes to such persons; to provide that it shall not be unlawful for any person to exercise, with- in the limits of the respective cities, towns and villages which may adopt such ordinances, the business of operating steam boilers, under steam pressure, exhausting through an engine, without a license; and to provide that any person violat- ing the provisions of such ordinances shall be li- able to a penalty for each breach thereof. ' ' I am of the opinion, therefore, that the ordinance does not require the company to have a licensed en- gineer under the circumstances set forth in its com- munication. Section 10 (1932) provides: "It shall be the duty of the board of examiners to see that each boiler plant in the city of Chi- cago shall have a licensed engineer, or boiler or water tender, or both, as provided herein, in charge at all times when working under pressure, whose certificate or qualification shall be dis- played in a conspicuous place in the engine or boiler room, and each engineer and boiler tender shall devote his entire time while boilers are work- ing under pressure to the duties of the plant under his charge." Section 5 (1927) provides for the revocation of the license of the engineer "for an absence from his post of duty." I am of the opinion, therefore, that inasmuch as the ordinance provides that the engineer, while the boilers are working under pressure, "shall be in charge at all times," and that he shall "devote his entire time" and that his license shall be revoked "for an absence from his post of duty," that he must be in constant and personal attendance. 285 EIGHT OF COMMON CARRIER TO BREAK OPEN PACKAGES FOB THE PURPOSE OF INSPECTING GOODS TO ASCERTAIN IF THEY HAVE BEEN PROPERLY CLASSIFIED. (Montgomery Ward & Co., November 4, 1903.) "We, among other shippers of Chicago, have the following difficulty to contend with among the railroads centering in Chicago, and with their lines : Boxes and cases containing merchandise that we deliver to the railroad companies at their freight houses are being daily broken into by in- spectors for the purpose of seeing for the rail- road company's satisfaction if the contents have been given the proper freight classification. We always deliver the goods to the railroad com- pany's freight house with a prepaid freight re- ceipt on which the goods appear properly classi- fied, but this fact is overlooked, apparently, by the railroad company accepting the consignment, and their own inspection is devised to see if we have classified the goods correctly, and to see that no goods are allowed to go through on the wrong classification or a lower rating. In making these inspections the railroad com- pany's inspectors invariably disturb the contents of boxes and cases, in many instances loosening the packing so that the fragile articles are broken while in transit, and, again, goods have been ab- stracted, that our customers have complained about, and which have been checked by our inspectors and packers as being among the goods shipped; for instance, an empty shoe box was received by our customer packed in with a lot of other goods, and our in- spector and /packer had both checked the article 'in' with tile other goods, a thing hardly any sane man would do if he had but an empty shoe box in his hand and an invoice calling for a pair of shoes before him. 286 We question the right of the railroad companies to open these boxes and cases except in front of either the shipper or consignee, and it is to ob- tain an opinion regarding the legality of the rail- road companies' position in this regard that we write you ; for if they are doing this without right we wish to be one among others to take steps to stop the practice; as it costs us considerably an- nually in the way of duplicating broken and miss- ing articles that can be accounted for in no other way than by attributing them to careless or dis- honest inspectors hired by the railroad com- panies. ' ' The carrier has no right, nor is it his duty to de- mand of the shipper information as to the character or quality of the goods, or the contents of packages, of- fered for shipment, as a condition of his accepting them. There is an exception in the case of the shipment of dangerous articles, such as explosives. The car- rier may refuse to receive packages offered to him un- less the shipper will inform him of their contents, whenever there is good ground for believing that they contain anything of a dangerous character. But it is only where from the suspicious appearance of the package or other circumstances tending to excite sus- picion, the carrier believes the goods are of a danger- ous character that the carrier is authorized to require a knowledge of the contents of packages offered, as a condition of receiving them for carriage. Hutchinson on Carrier, Sec. 439. Crouch v. Railway Co., 23 L. J. C. P. (U. S.) 73. State v. Goss, 59 Vt., 266. The Nitro Glycerine Case, 15 Wall., 524. Baldwin v. S. S. Co., 74 N. Y., 125. Dinsmore v. R. R. Co., 3 Fed., 593. The carrier, therefore, not being authorized to in- spect the goods before shipment or delivery, a fortiori, he cannot break open the package after its receipt for the purpose of inspecting the goods, un- 287 less there is an agreement permitting the carrier to do so. The carrier, however, has the right to make inquiry as to the value of the goods shipped for the purpose of fixing the amount of his charge for the carriage and of ascertaining the amount of his responsibility which he is to assume, and the degree of the care he will be required to exercise in respect to them. I am not unmindful of the provision (Section 10) of the interstate commerce Act, which provides thus : "Any .person and any officer or agent of any corporation or company who shall deliver prop- erty for transportation to any common carrier, subject to the provision of this act, or for whom as consignor or consignee any such carrier shall transport property, who shall knowingly and will- fully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of weight or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor, and shall, upon conviction thereof in any court of the United States of com- petent jurisdictoin within the district in which such offense was committed, be subject for each offense to a fine of not exceeding five thousand dollars or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court. ' ' I do not express any opinion as to the right of the United States to break open the cases for the pur- pose of discovering evidence of a violation of the statute. In the absence of a controlling decision to the contrary, I am of the opinion that the act does not give the carrier the right to break open packages. 288 THE ILLINOIS STATUTE REQUIRING A SUIT TO BE COM- MENCED WITHIN ONE YEAR WHERE DEATH HAS BEEN CAUSED BY WRONGFUL ACT, NEGLECT OR DEFAULT. (Mt. Vernon Car Manufacturing Company, November 21, 1903.) "I would like to ask when the law went into effect making it necessary for injured employees to begin suit within one year from the date of injury. If you can give me this information, also a copy of the law, I will thank you for the favor. ' ' Section 1, Chapter 70, Hurd's Bevised Statutes of 1901 (p. 1002), provides: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party in- jured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwith- standing the death of the person injured, and al- though death shall have been caused under such circumstances as amount in law to felony." Section 2 of the act was amended May 13, 1903 (in force July 1, 1903), so as to read as follows: "Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive bene- fit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law. In relation to the distribution of personal property left by persons dying intestate, and in every such action the jury may give such damages as they shall deem a fair and just compensation with ref- erence to the pecuniary injuries resulting from such death to the wife and next of kin of such de- 289 ceased person not exceeding the sum of ten thou- sand dollars: Provided, that every such action shall be commenced within one year after the death of such person. Provided, further, that no action shall be brought or prosecuted in this state to recover damages for a death occurring outside of this state, and that the increase from five thou- sand to ten thousand dollars in the amount there- by authorized to be recovered shall apply only in cases when death hereafter occurs." It will be seen, therefore, that the limitation of one year only applies to actions for causing death. The limitation of two years for personal injuries is still in force. WHETHER THE INSTALLATION OF APPARATUS AS INCIDENTAL TO THE SALE OF THE SAME CONSTITUTES DOING BUSI- NESS WITHIN THE MEANING OF THE FOREIGN CORPORA- TION LAW OF INDIANA. (American Foundry and Furnace Company, Novem- ber 21, 1903.) "It seems that whether or not w'e should com- ply with the Indiana foreign corporation law 1901 as amended March 9, 1901, depends entirely upon particular circumstances of our business transac- tions in that state. We therefore submit our method of operating in the state of Indiana. We are engaged in the manufacture and sale of heating, ventilating and sanitary apparatus for public buildings. In Toledo, Ohio, we have a sales agent who has his office in that city. The Indiana territory is operated from that point. Our To- ledo representative visits different cities in Indi- ana and obtains contracts for furnishing and in- stalling in public school buildings heating, venti- lating and sanitary apparatus. This apparatus is generally so installed in the building as to be- come a part of it. We furnish from our Bloom- ington (111.) office practically all of the material 290 which is used, and superintendents are sent to the town where order is taken, work completed and paid for. We have no agents with headquar- ters in Indiana, and do no business in that state except as above described. We would be pleased to have you advise us through your legal depart- ment or otherwise whether or not the above trans- action would require us to comply with the Indi- ana statute above mentioned." I assume that all the material sold is shipped from without the state of Indiana. I assume also that the erection and installation of the apparatus is not the principal business of the company, but it is merely incidental to the contract of sale. The transactions are close to the border line which separate interstate commerce from that which is intra state or domestic. Of course, a merely isolated or single transaction does not constitute doing business. I am inclined to the opinion, however, although the question is not free from doubt, that the business transacted by the com- pany in Indiana is interstate commerce, and does not subject the company to the operation of the foreign corporation laws. Milan Mill & Mfg. Co. v. Gorton (Term.), 26 L. E. A., 135. Caldwell v. No. Carolina, 187 U. S., 622. NOTE: See also the opinion of March 11, 1904, in answer to the query of Barnard & Leas Mfg. Co. Ed. LIABILITY OF THE HIREE OF A TEAM FOR INJURIES CAUSED BY THE DRIVER OF SUCH TEAM. (S. A. Maxwell & Co., November 24, 1903.) * ' The Company in which we have taken out our general liability policy call our attention to the fact that this policy does not cover the operation of teams. The following is an extract from their letter : 'Where the team and driver is delivered to the hirer by the contractor, the driver and the team 291 to be under his direction and control for his sole use in his business, the hirer incurs the same lia- bility as if the team and driver were his prop- erty and employe. This is well established law. ' The largest part of our teaming is done under contract at so much per ton, then we have for city deliveries a wagon and driver for which we pay so much per day. While the teaming com- pany have sent us for some time the same driver, we, however, do not insist upon their doing so. We would like to have the opinion of Mr. Levy Mayer if under the existing conditions w T e are li- able for any injuries that either the driver of the city wagon may sustain while hauling our goods or the drivers for the wagons hauling our out- going freight for which we pay so much per ton. ' ' In Pioneer Construction Co. v. Hansen, 176 111., 100, the court said (p. 108) : "He is the master who has the choice, control and direction of the servants. The master re- mains liable to strangers for the negligence of his servants, unless he abandons their control to the hirer. Control of servants does not exist, un- less the hirer has the right to discharge them and employ others in their places. The doctrine of respondeat superior is applicable where the per- son sought to be charged has the right to control the action of the person committing the injury. It follows that the right to control the negligent servant is the test, by which it is to be determined whether the relation of master and servants ex- ists ; and, inasmuch as the right to control involves the power to discharge, the relation of master and servant will not exist, unless the power to dis- charge exists." In N. 0., B. R. V., etc., v. Norwood, 62 Miss., 565, the court said (p. 569) : "In the application of these supposed tests to particular cases, great confusion and conflict of authority has arisen, but amid it all there seems to be a class of cases in which there has been uni- 292 formity of decision, and to this class the case be- fore us is obviously assignable. The cases re- ferred to are those in which a person hires the personal property of another and that other sup- plies, also under the contract of hiring the servant who is charged with the general management and control of the property, in which cases, though the hirer acquires to a limited degree a dominion over the servant, with a right to superintend and direct his conduct, he still in legal contemplation continues the servant of the owner, who is re- sponsible for his negligence, though it occurs in the performance of that work which he does for the hirer and in which the hirer alone is inter- ested. As where one hires horses and a driver from a jobman to draw his carriage, the owner and not the hirer is liable for negligence of the driver. Dean v. Braithwaite, 5 Esp., 35 ; Samuel v. Wright, Ib., 262 ; Laugher v. Pointer, 5 B. & C., 311; Quarman v. Burnett, 6 Mee & W., 499. Or where one sends his team, wagon and driver to work for a neighbor. Michael v. Stanton, 10 N. Y., 462. Or where a vessel and crew are chartered by the day or for a voyage, the crew are the serv- ants of the owner, even though as a part of the contract the hirer is to pay the owner the wages of the crew. Daly ell v. Tyrer, EL Bl. & EL, 899; Fenton v. Dublin Packing Co., 8 A. & E., 835." In Quinn v. Electric Co., 46 Fed., 505, the plaintiff was injured by a horse and truck driven by one Murphy. Under a contract the defendant furnished to the Western Electric Co. a horse, truck and driver daily to do its trucking work at a specified price, the defendant selecting the team and driver which were to be at the disposition of the Western Electric Co., in whose service the team and driver were at the time of injury. The court said (p. 507) : 1 i Under these circumstances, although the West- ern Electric Company was the primary employer for whom the service which Murphy was engaged in was being rendered, the defendant was 293 Murphy's immediate superior. It had hired him, and could discharge or retain him, and thus had the selection and control of the means of accomp- lishing the object of the contract which had been made between the Western Electric Company and itself. The defendant was not the servant or agent of the Western Electric Company, but was an in- dependent contractor; hence those employed by the defendant to do the work contracted for were its servants, and not those of the Western Electric Company. (Citing cases.) The rule of the respondeat superior rests on the power which the superior has a right to ex- ercise, and which, for the protection of third per- sons, is bound to exercise over the acts of his sub- ordinates. It does not apply to cases where the power of control does not exist, and the power does not exist when the primary employer has no voice in the selection or retention of the subordi- nate." In 1 Shearman & Eedfield on Negligence (5th Ed.), Sec. 162, the doctrine is summoned up as follows : "The master who hires out one of his servants to work for another person is liable to the hirer for such servant's negligence in the work and this even though the particular servant was selected by the hirer himself, and unless master abandons the entire control of his servants to the hirer he remains liable to strangers for their negligence. The hirer cannot properly be said to have control of the servants, unless he has the right to dis- charge them and employ others in their places in case of their misconduct or incapacity ; that being the only practical means by which free servants can be controlled. If, therefore, the hirer has no power, he is not responsible to any one for the faults of the servants. If the hirer is vested for the time with exclusive control with the right to discharge the servants and to employ others, he alone is responsible for their defaults. Where a person hires the personal property of another, 294 who supplies, under the contract a servant charged with the general management and control of the property, although the hirer acquires to a limited degree, a dominion over the servant, with a right to superintend and direct his conduct, the latter still continues the servant of the owner who is re- sponsible for his negligence, though it occurs in the performance of work in which the hirer alone is interested." To the same effect see: Consolidated Fireworks Co. v. Koehl, 190 111., 145. Laugher v. Pointer, 5 Barn. & C., 560. Quarman v. Burnett, 6 Mees. & W., 497. Jones v. Mayor, 14 Q. B. Div., 890. Michael v. Stanton, 3 Hun., 462. Fenton v. Steam Packet Co., 8 Adol. E., 835. Dalyell v. Tyrer, 28 L. J. Q. B., 52. Coyl v. Pierrepont, 37 Hun., 379. Under the facts set forth in the letter of the Max- well Company (the hirer) there is no liability on the part of the hirer for injuries caused by the operation of the teams hired by it. There can be no liability unless the drivers can be considered as the servants of the hirer. The drivers are not selected by the hirer, nor has he the right to discharge them. These elements are essential to the existence of the relationship of master and servant and unless that relationship exists, persons injured by the operation of teams under the circumstances hereinbe- fore referred to, must look to the contractor who em- ploys the driver and not the hirer. It is true the hirer acquires to a limited degree the right to control the driver, but the latter is still the servant of the owner. To hold the hirer liable the contractor must abandon the entire control of his servants to the hirer, so that they become in effect his servants. 295 THE VALIDITY OF AN EMPLOYMENT CONTRACT AND THE CONSTITUTIONALITY OF THE ILLINOIS STATUTE OF 1903 REGULATING THE PAYMENT OF WAGES BY CORPORATIONS. (Dillon-Griswold Wire Co., November 24, 1903.) "Herewith enclosed is a copy of a form of agreement which this company has been for years requiring its employes to sign before entering into service. The binding force of the agreement in several, if not all parts, has frequently been called into question. We would like to have you refer the form of agreement to Mr. Levy Mayer, general counsel, as to whether the same is legal and can be enforced by us. It is said that a portion at least of the contract is in conflict with a law passed by the last Illinois legislature, which took effect July 1, 1903, subjecting the employer to a fine of $200 if he should attempt to retain any portion of the employe's wages on account of the employe leaving without notice. If this is the case, we fail to see how the employer is going to be protected against labor tramps who are con- stantly going about seeking a few days ' work with- out any intention of rendering permanent serv- ice. ' ' The agreement enclosed is as follows: "!N CONSIDERATION of the Dillon-Griswold Wire Company having employed me to work for it at Sterling, 111., at the rate of wages set opposite my name hereto by me subscribed on the terms here- inafter stated, I hereby agree to work for said company, according to its rules and regulations, for one month or more, for such rate of wages, and that I will not assign my wages or quit such employment without giving said company two weeks ' previous notice. And for the consideration aforesaid, I further agree that if I fail to keep this agreement, or am discharged from such employ- ment for cause, I shall receive but four-fifths of the wages which would otherwise be due to me, it be- 296 ing stipulated and agreed that in such case one- fifth of such wages then due, according to the said rate, is but reasonable damage to said company, to be retained by it. And for the consideration aforesaid, I further agree, that if I shall violate this agreement, or any of the rules or regulations of said company, such violation shall be lawful cause for my discharge and I may be discharged from such employment for such lawful cause and without notice. "This agreement is a several contract between myself and said company, although other names are subscribed hereto above or below my name; and the same has been explained to, and is fully understood by me. ' * It is further agreed that I do not belong to any labor association or union, and that I will not join the same without giving this company ten days' notice. "And for the consideration aforesaid, I further agree to the company's regular semi-monthly pay days. ' ' There are two questions involved one as to the con- stitutionality of the act of the Legislature of Illinois, May 14, 1903, regulating the payment by corporations of wages of their employes. As I stated in an opinion of very recent date to Parlin & Orendorff Co. that act can not legally or constitutionally apply to a contract entered into between employer and employe, which pro- vides for the withholding of the wages of employes for a fixed period to be paid in the future to such employes^ provided certain conditions are complied with. In other words, adult employers and employes have the legal right to contract for the sale and purchase of ser- vices or labor, the same as they have with reference to the sale or purchase of merchandise or other property. Labor, as I have often said in opinions to the Associa- tion, is property, and is so regarded by the courts when applying to labor the constitutional limitations which restrict legislative power. If, therefore, it be at- tempted to apply the act of May 14, 1903, to the given 297 case, the courts will, in my opinion, hold it unconsti- tutional. . The other and more serious question involved is this is the agreement under consideration a contract that is to say, an agreement legally binding on both parties! It is patent that the parties to the agreement intend to make a legally binding contract. The diffi- culty, however, that presents itself is the doubt as to whether the contract is mutual. If it is not mutual and is binding only on one party, no action can be maintained on it for its breach by either party. A careful examination of the agreement leaves serious uncertainty as to whether the Dillon-Griswold Wire Company binds itself to do anything. True, it recites that "in consideration of the Dillon-Griswold Wire Company having employed me to work for it," etc. There is, however, in the agreement no positive undertaking on the part of the wire company to em- ploy. It has been frequently decided by the courts that unless there is a promise by the employer to em- ploye, the promises of the employe will be without cor- responding obligations on the part of the employer, and will not be binding. In an opinion which I gave on May 14, 1903, to the Kinley Manufacturing Company the question involved covered an agreement which read this way : "In con- sideration of my receiving employment by E. E. Wag- ner Manufacturing Company and in further consider- ation of the fact that it takes a full weeks' time after employment to work for the company to advantage I hereby agree," etc. My opinion on that agreement was that it was unilateral and therefore not binding on either party to it. The language of the Wire Company agreement is in some respects much stronger than is the language of the Kinley Manufacturing Company agreement. I can see forcible arguments that can be advanced in support of the proposition that the courts would read mutuality into the Wire Company agreement. In view, however, of the decision of the Supreme Court in Vogel v. Pekoe, 157 111., 339, I am inclined to the opin- 298 ion (particularly on account of the existing tendency of the courts against agreements of the kind in ques- tion) that the agreement under consideration will prob- ably be held unilateral and therefore not binding. I would advise that it be so changed as to make it mutual. Practically all of the questions propounded by the Wire Company, with the exception of that as to the constitutionality of the act of May 14, 1903, are cov- ered by my opinion of May 14, 1903, to the Kinley Manufacturing Company, to which I refer for a further statement of my views. LIABILITY OF A CARRIER FOR GOODS FROZEN IN TRANSIT WHEN DELIVERY IS DELAYED. (Ernest Tosetti Brewing Company, January 22, 1904.) "Will you kindly favor us with the opinion of Attorney Levy Mayer regarding the contention of the Chicago Junction Railway Company in re- sponse to a claim made by us for beer frozen while in transit, as follows: "On Friday, the llth inst., at 4:30 o'clock, we shipped a car of bottled beer to LaGrange, 111. The Chicago Junction Eailway Company, not possessing any refrigerator cars, we were com- pelled to ship in an ordinary box car, in conse- quence a salamander was placed in the car and the car thoroughly heated, before leaving. In ad- dition to this, the cases of beer were well covered with shavings. These precautions would have been sufficient to prevent freezing almost under the most severe cold weather provided the car had been delivered at the proper time. However, in- stead of the car arriving at its destination upon the following morning (Saturday) which is the usual or schedule time of arrival, it did not arrive until Sunday afternoon at 2:30 o'clock. The car was immediately unloaded and a part of the con- tents were found frozen. ; 299 "On Saturday morning, we received word from our LaGrange branch that the car had not arrived. We investigated the matter and found that the car was still in the C. J. yards and had not left the evening previous as was customary. We there- fore called up Mr. O'Brien, the assistant super- intendent, on the telephone and informed him of the situation. He stated that the car would be sent on at once; however, it did not arrive until the following afternoon, as stated above. "We, on the 15th inst., filed a claim with the railroad company for damages amounting to $166.60, and in reply to same received from the railroad company the following : " 'Replying to your letter of the 15th inst. and returning your bill for $166.60 covering alleged loss of beer contained in C. J. car 1078 by frost, I have to advise that this company will not as- sume responsibility for loss or damages to freight by freezing when it is loaded in box cars and your claim is respectfully declined ? ' " You state in reference to the manner of packing : "These precautions would have been sufficient to pre- vent freezing almost under the most severe weather provided the car had been delivered at the proper time." I assume this to be true, and that the railroad company had notice of and acquesced in the precau- tions taken. The carrier is an insurer against all loss except that caused by the act of God, or the public enemy. C. SN. W. R. R. v. Sawer, 69 111., 285. Where perishable merchandise is exposed to varia- tions of temperature the consequent injury is not at- tributable to the act of God. Where a carrier accepts goods with a full knowl- edge that they are expected to be delivered by a cer- tain time, he assumes the liability for delivering them in time, or showing that he used every reasonable ef- fort to make the delivery. Where he expressly agrees to deliver them by a specified time, not even unavoid- able accident will excuse the delay. 300 C. & A. R. R. Co. v. Thrapp, 5 111. App., 502. R. I. & Peoria R. R. Co. v. Porter, 36 111. App., 590. I. C. R. R. Co. v. Waters, 41 111., 73. But personal neglect, or misconduct of the shipper, will excuse the carrier from liability for delay. /. C. R. R. Co. v. McClellan, 54 111., 58. Notwithstanding a provision in a bill of lading that the carrier shall not be responsible for "damage to perishable property of any kind, occasioned by delays from any cause," the carrier becomes liable for delay as the result of actual negligence. Wabash R. R. Co. v. Jaggerman, 115 111., 406. However, proof of delay merely is not sufficient to show negligence on the part of the carrier. If all the facts have been submitted to me, it is my opinion that the facts justify a suit and that the case, if properly presented, will result favorably to the Tosetti Brewing Company. LIABILITY FOB CANCELLING AN ORDER FOR GOODS AFTER IT HAS BEEN ACCEPTED AND THE MEASURE OF DAMAGES IN RESPECT THERETO. (Sturges & Burri Manufacturing Company, January 22, 1904.) "A commission salesman of ours sold to a firm in Canada, two cars of scaleboards, for shipment four months hence. The buyers gave a written order specifying price, terms, quantity and dates of shipment. The order was mailed to us and upon receipt we promptly acknowledged it and sent it forward to the factory who makes these boards, we taking their output. "As soon as the factory received the order for the two cars they purchased the raw material from which to make them. A month later we received a letter from the purchasers, reading as follows: 11 'Some weeks ago we ordered through your agent two cars of scaleboards. We have made 301 Bother arrangements for same, so you will cancel our order. Yours respectfully, (Signed) * ' "We have since learned that the reason for can- celling was due to their having received a lower price from another maker, after the order had been placed with us, and while we have expressed a willingness, without prejudice to our rights, un- der the contract, to meet the price, they still re- fuse to allow us to furnish the goods, on the ground that they have made other arrangements. "The salesman, who travels on commission, takes the stand that he spent his money in secur- ing the business, and is entitled to the commis- sion. On the other hand the scaleboard factory, with whom we placed the order, contends that they have purchased the logs from which to make these and they naturally expect us to take them, and what we wish to know is, can we legally compel them (the purchasers) to carry out the terms of the contract that is, accept the two cars and pay for them!" I reply as follows: (a) Your contract with the Canadian firm is valid, and you have an action at law for their breach of it. The measure of damages is the difference between the contract price and the cost of supplying them with the scaleboards. Roehm v. Horst, 178 U. S., 1, 21. Hinckley v. Pittsburg Steel Co., 121 U. S., 265, 276. (b) The question of commission to your salesman is governed by your contract with him. On the facts given he is entitled to his commission. (c) You are liable to the scaleboard factory in dam- ages for a breach of your contract with them. The measure 'of damages is the same as already given. 302 LIABILITY TINDER THE NEW YORK STATUTE PROHIBITING THE USE OF THE NAME, PHOTOGRAPH OR PICTURE OF ANY PERSON FOR ADVERTISING PURPOSES WITHOUT THE CONSENT OF SUCH PERSON, AND AS TO WHETHER AN ACTION CAN BE SUSTAINED IN ILLINOIS. (Osgood Company, January 22, 1904.) "Enclosed we hand you a copy of one of the laws of the State of New York entitled 'An act to pre- vent the unauthorized use of the name or picture of any person for the purpose of trade. ' "We would like to have Mr. Mayer's opinion in regard to the liability under this law for using faces from copyrighted photographs if the matter is printed and circulated from the State of Illi- nois. In other words, if a mail order house should issue a catalog using photograph faces circulat- ing same from the State of Illinois, would they be liable for damages under this law?" The law in question provides : "AN ACT TO PREVENT THE UNAUTHORIZED USE OF THE NAME OR PICTURE OF ANY PERSON FOR THE PURPOSE OF TRADE. "Section 1. A person, firm, or corporation that uses for advertising purposes, or for the purpose of trade, the name, portrait or picture of any liv- ing person without having first obtained the writ- ten consent of such person, or if a minor, of his or her parent or guardian, is guilty of a mis- demeanor. "2. Any person whose name, portrait is used within this State for advertising purposes or for the purpose of trade without the written consent first obtained as above provided, may maintain an equitable action in the Supreme Court of this State against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use, and if the defendant shall 303 have knowingly used such person's name, picture or portrait in such manner as is forbidden or de- clared to be unlawful by this act, the jury, in its discretion, may award exemplary damages. "3. This act shall take effect September 1st, nineteen hundred and three. ' ' The questions asked are as interesting as they are difficult of solution. My opinion is as follows: I. Section 1, which makes the alleged wrongdoer guilty of a misdemeanor, is not enforcible in Illinois. One State can not enforce the criminal or penal laws of another. Such laws have no extraterritorial force. Rorer on Interstate Law, 2nd Ed., 308. The Antelope, 10 Wheaton (U. S.), 66, 123. Wisconsin v. Insurance Co., 127 U. S., 290. Indiana v. Oil Co., 85 Fed., 873. Attrill v. Huntington, 146 U. S., 657. 12 Am. St. Rep., 351, note. II. An injunction cannot be maintained in Illinois to enforce the New York statute. The specific remedy provided by the law will not be applied to Illinois. It is a principle well recognized that laws have no ex- tra-territorial force. Their authority is limited to the territorial jurisdiction of the State that enacts them. C. & E. I. R. R. Vo. v. Rouse, 178 111., 132, 137. Rorer on Interstate Law, 2nd Ed., 226, 227. Pennoyer v. Neff, 95 U. S., 714. Blanchard v. Russell, 13 Mass., 1. Cleveland, etc., R. R. v. Penn, 15 Wall., 300. Hill v. Wright (Mass.). State v. Bunce, 65 Mo., 349. III. The law is violated if any person uses the name, portrait or picture of any living person for ad- vertising purposes or for the purposes of trade, with- out having first obtained the written consent of such person. It is not necessary that the law be knowingly violated, but if it is, exemplary damages may be awarded. In determining whether or not the acts set forth in the letter of the Osgood Company are a violation of the law under consideration, I assume that the com- 304 pany has used the name, portrait or picture of another for advertising purposes, or for the purpose of trade, without the written consent of such person, and that the question to be determined is whether or not the printing in and circulation from this State of a cata- logue containing such name or portrait is a violation of the law. I presume the catalogues are sent by mail to various persons in New York. The law provides that the name or portrait must be "used within" the State of New York, and that any person may recover damages for injuries sustained by reason of "such use." Is the name or portrait "used within" the State of New York? "Use" is denned in the Century Dictionary as "the act of employing anything, or the state of being em- ployed ; employment ; application ; conversion to a pur- pose, especially a profitable purpose." "To employ for the attainment of some purpose or end ; avail one 's self of." I am of the opinion that the circulation of catalogues from this State, as above set forth, is a violation in New York of the law in question. The question remains, therefore, whether or not the courts of Illinois will enforce the specific remedy of the statute of New York. The courts of one State will not, as already stated, enforce the penal or criminal laws of another State. Is the present law penal in its nature? Penal laws are those which impose punishment for an offense committed against the State. The test whether a law is penal is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual. Crimes and offenses against the laws of any State can only be prosecuted by the sovereign authorities of that State. Section 1 of the law in question is clearly criminal. A penal law may also be remedial or may be penal in one part and remedial in another. Sutherland on Statutory Construction, Sec. 208. Bell v. Farrell, 176 111., 489, 496. Section 2 of the law under consideration is intended to extend a remedy for a civil injury, and not to pun- 305 ish a wrong to the public. It is not, therefore, of a penal nature, even though the wrongs committed also constitute a misdemeanor under Section 1. There is no statute similar to the New York statute in force in this State. In order to maintain an action for an injury to the person committed in another State, some courts have held that the wrong must be one which would be actionable also in the State where the suit is brought, as well as in the State where the injury is committed. Huntington v. Attrill, 146 U. S., 657, 670, and cases cited. But the weight of authority is to the effect that the courts of a State have jurisdiction by comity of a right of action given by a statute of another State for a tort or a civil injury of a transitory nature, committed in such State, even though at common law no such right of action existed, and even though there is no similar statute in the State, where the action is instituted. Personal injuries are of a transitory nature as dis- tinguisjied from crimes and offenses and actions re- lating to land, and sequuntur forum rei. This doctrine has recently been followed by the Supreme Court of Illinois : C. & E. I. R. R. Co. v. Rouse, 178 111., 132. See also : Hanna v. Grand Trunk, 41 111. App., 116. Eights of action based upon a statute of a foreign State will not, however, be enforced here if against good morals, public policy, natural justice, or the gen- eral interest of the citizens of the State. C. & E. I. R. R. Co. v. Rouse, supra. There is nothing in the enforcement of the present law against good morals, public policy, natural jus- tice, or the general interest of the citizens of this State, and in my opinion an action for damages will probably be sustained in this State for a violation of the New York statute. 306 THE LIABILITY OF A TRANSPORTATION COMPANY FOR GOODS DESTROYED IN WAREHOUSE AFTER ARRIVAL AT DESTINA- TION. (D. B. Scully Syrup Company, January 22, 1904.) "As members of your association we would ask you to kindly obtain Mr. Levy Mayer's opinion as to the liability of a transportation company un- der the following circumstances : Supposing that we ship a pooled car of goods to any stated point, consigned to our agent at that point; these goods are unloaded at destination by the transportation company into their warehouse or docks ; and this warehouse or dock is destroyed by fire before the various consignees have had any chance to remove the goods, is not the transporta- tion company liable to us for the full invoice price of the same? It is customary on the arrival of goods at any point for all transportation com- panies to send out notices to the consignees, giv- ing them from twenty-four to forty-eight hours in which to remove the goods. As we understand it, until the expiration of the twenty-four or forty- eight hours mentioned above, the transportation company is responsible for goods in their care, just as much as a storage warehouse would be." The matter is covered by my opinion to the associa- tion under date of December 30, 1902, in answer to the query of Roos Manufacturing Company. Under the circumstances set forth in the company's letter, the transportation company's liability as a carrier ceased under the law of this State upon the storage of the goods in a safe and suitable warehouse. The rule is different, however, in some other jurisdictions. The fact that the railway company may give notice to the consignee does not change their liability. After the placing of the goods in the warehouse, the liability is the same as that of a "storage warehouse," but a warehouseman is bound only to use reasonable care and diligence for the preservation of the property. If 307 the goods were stored in a suitable warehouse, and the carrier used reasonable care and diligence, it is without liability under the above-stated facts. NOTE: See opinion of Nov. 26, 1907, collating the law of all the states upon when a carrier's liability ceases and that of warehousemen begins upon arrival of goods at destination. Ed. LIABILITY OF CONSIGNEE FOE FREIGHT WHERE SALE IS MADE F. O. B. SHIPPING POINT AND RIGHT OF CONSIGNEE TO DISCOUNT ON AMOUNT OF FREIGHT ADVANCED. (W. 0. King & Co., January 22, 1904.) 1 i We would like to have Mr. Levy Mayer 's opin- ion on the following matters: First We sold a cargo of lumber free over vessel rail at shipping port in Michigan and agreed to freight it on our boat at a certain freight rate which was agreed upon. When the boat arrived the captain called at our customer's office for his freight, which was refused, and he was referred to us for the freight, our customer claiming that it was our duty to de- liver the lumber to his dock and pay the freight charges. Second In buying goods delivered f. o. b. des- tination, where a discount is allowed on the pur- chase price, and where the consignee pays the freight and charges to the shipper, would the con- signee be entitled to a discount on the freight; in other words, cash discount on the face of an in- voice?" 1. In answer to the first question, it was the custom- er's duty to pay the freight; f. o. b. a particular place means that the goods will be delivered free of expense to the consignee up to that place, and that thereafter the freight charges and expenses of carriage are chargeable to the consignee. 2. I do not quite understand this question. It is asked whether or not the consignee is "entitled" to a discount on the freight. The question must be decided 308 by the contract between the parties. If the discount is to be allowed on the "purchase price," and the freight is included in the "purchase price," then the discount should be deducted from the "purchase price" of the merchandise before the amount of the freight is credited on the "purchase price." If the discount is allowed on the "invoice," and the amount of the freight is not included in the "invoice," then the discount must be allowed only on the amount of the invoice. THE LEGALITY OF A BOYCOTT BY A LABOR UNION DIRECTED AGAINST THE SPECIFIC GOODS OF A PARTICULAR FIRM, AND THE REMEDY THEREFOR. (Rueckheim Bros. & Eckstein, January 23, 1904.) "It has come to our notice that handbills are be- ing circulated by the United Order of Box Makers and Sawyers of America calling attention to union labor to demand the union label on all folding boxes used for Cracker Jack, candy, shoes, hats, drugs, neckwear, etc. We feel very much interested in this matter for the reason that we are the sole manufacturers of 'Cracker Jack' and the name 'Cracker Jack' for confections is our exclusive property. We wish to inquire whether it could not be considered as an illegal act in calling attention specifically to Cracker Jack. Is this not a distinct boycott on our company? These handbills are being circu- lated in large numbers and we fear that unless the same is soon suppressed this act will be very in- jurious to our business." The hand bill in question is as follows : United Order of Box Makers and Sawyers of America. Union made and paper "The Attention of UNION LABOR is called to the above label of the Registered 309 UNITED ORDER OF PAPER BOX MAKERS. DEMAND THE ABOVE LABEL. On all Folding Boxes, Cracker Jack, Candy, Shoes, Hats, Drugs, Neckwear and on all Paper Boxes when you purchase goods." The principles governing the legality of the action of labor unions and the rights of employers and em- ployes with respect thereto, are fully discussed in my prior opinions to the association, under date of April 12, 1902 ; May 13, 1903, and August 5, 1903. It is unnecessary to further discuss those principles. The question now to be determined is as to the ap- plicability of the principles to the present case. I understand that the company does not manufacture its own boxes, but that it purchases the same from dif- ferent manufacturers, both union and non-union. In no case, however, is the label of the Boxmakers ' Union placed upon the "Cracker Jack" boxes. Does the circulation of the label in question consti- tute a conspiracy or boycott? A "boycott" is an or- ganized attempt to coerce a person or party into com- pliance with some demand, by combining to abstain, and compel others to abstain, from having any business or social relations with him or them. It is an organ- ized persecution of a person or company, as a means of coercion, or intimidation, or of retaliation for some act, or refusal to act in a particular way. It is a com- bination of many to cause loss to one person by coerc- ing others against their will to withdraw from him their beneficial business intercourse through threats that unless those others do so the many will cause sim- ilar loss to them. On the subject in general see : Beck v. Union, 42 L. R. A., 407 (Mich.). Casey v. Union, 12 L. R. A., 193 ; 45 Fed., 135, and cases cited. The Illinois statute provides (Sec. 46, ch., 38, S. & C. Rev. Stat.) : "If any two or more persons conspire or agree together, or the officers or executive committee of any society or organization or corporation shall 310 issue or utter any circular or edict as the action of or instruction to its members, or any other per- sons, societies, organizations or corporations for the purpose of establishing a so-called boycott or blacklist, or shall post or distribute any writ- ten or printed notice in any places, with the fraud- ulent or malicious intent wrongfully and wick- edly to injure the person, character, business or employment or property of another * * or to commit any felony, they shall be deemed guilty of a conspiracy; * * * ." Every person has the right to refuse to trade with any particular person or class of persons, even though such refusal be based on mere whim or caprice. A number of persons cannot, however, agree together that they will not deal with a particular person, or class of persons, unless such agreement is in further- ance of a legal right. The authorities upon this ques- tion are referred to in my prior opinions. It is also illegal for any association of persons to combine together with the purpose of compelling an- other to accede to the demands of the association, by means of coercion, intimidation, or threats of violence. This coercion may be exercised directly upon the per- son intended to be injured, or upon third persons, to compel such third persons to inflict injuries by with- drawal of business relations, etc. In the present case, the circular referred to is in effect a request to union labor to refuse to purchase the Cracker Jack unless the union label is on the box. The circular refers spe- cifically to the goods of a particular company, and " Cracker Jack" is not used in a general sense, the same as is candy, etc. If the circular is directed against any particular person, or any particular goods, it is, in my opinion, illegal. The law is elastic. It keeps abreast of the times. It is broad enough to meet changing condition. Though I can find no precedent that fits the present facts, I am however, inclined to the opinion that there is a good fighting chance of securing relief by a proper 311 court proceeding, particularly if suit can be instituted in the Federal Court. Whether suit can be begun in the Federal Courts will probably depend, under the present facts, upon the citizenship of the parties. THE FOREIGN CORPORATION LAW OF MISSOURI AND THE EFFECT OF COMPLIANCE SUBSEQUENT TO THE INSTITU- TION OF SUIT. (Ernst Tosetti Brewing Co., February 5, 1904.) I have your favor enclosing copy of letter from the Ernst Tosetti Brewing Co., in which my opinion is asked upon the effect of that company's failure to comply with the foreign corporation law of Missouri. The company states : "We formerly had a branch in Kansas City, Mo., which we disposed of about a year ago. We have had a large number of claims against per- sons in the city for goods delivered and have had to resort to the court for the collection of same. We have just ascertained that a number of our debtors have refused to honor the accounts, mak ing a claim that we have not complied with the laws of Missouri in the transaction of our busi- ness in that state. As near as we can ascertain we are not positive as to whether the laws of the state have been complied with in the direction of filing a statement to the state authorities, relative to our incorporation, etc., and we would like you to inform us if in the event this is so if this would invalidate our claim against our several debtors." I assume, therefore, that the law in question has not been complied with. I have examined the foreign cor- poration laws of Missouri. They are too lengthy to set out here. The Act of April 21, 1891, as amended March 11, 1895, provides that: "No foreign corporation * * * which shall 312 fail to comply with this act (An Act imposing conditions upon foreign corporations) can main- tain any suit or action * * * in any of the courts of this state." The company, unless it complies with the law, can not maintain any action in Missouri. There is but one possible loophole of escape. That is for the company to now comply with the law be- fore further prosecuting the suits pending in Missouri. In Carson-Rand Co. v. Stern, 129 Mo., 381, the plain- tiff, a foreign corporation, brought an action to re- cover upon certain notes. The corporation complied with the law after the institution of the suit, but be- fore the filing of any motion, answer of plea by the defendants. The court held that the action could be maintained. The Court of Appeals, in Eberhardt v. Robertson, 78 Mo. App., 404, decided the contrary of this propo- sition, saying the question was not really before the Supreme Court in the former case. In the later case of Chicago Mill & Lumber Co. v. Sims, 74 S. W., 128, decided April 28, 1903, the Court of Appeals followed the Carson-Band case and held that the failure to comply with the law did not render the contracts of the corporation void, but only sus- pended the remedy thereon. In that case, however, the law was complied with before the institution of the suit, but after the making of the contract. The court, however, construes the holding of the Supreme Court in the Carson-Rand case to be, that a subse- quent compliance at any time after suit is instituted, will enable the corporation to maintain the suit. The case, however, was certified to the Supreme Court for decision. That decision has not yet been announced as far as I can discover. The Supreme Court, in my opinion, will probably adhere to its former opinion and will hold that a compliance with the law at any time will enable the corporation to maintain the suit. If the amounts at stake are sufficient to justify it, I think it advisable that the law be immediately com- 313 plied with. Your Missouri representative will advise you what steps are necessary to comply with the law. NOTE: See the recent cases of Tri-State, etc., v. Forest Park High- lands, 192 Mo., 404; Chicago Mill fy Lumber Co. v. Sims, 197 Mo., 507, and Eoeder v. Bobertson, 100 S. W. (Mo. 1907), 1086, upon the effect of subsequent compliance with the Missouri foreign corporation law. Ed. LIABILITY OF CAEEIER FOR TRANSFERRING FREIGHT CON- SIGNED TO A POINT NOT ON ITS OWN LINES, TO ANOTHER CARRIER, IN VIOLATION OF THE SHIPPER'S INSTRUCTIONS. (Edward Eose & Co., February 6, 1904.) Dear Sir: I have your favor enclosing communica- tion from Edward Kose & Co. That company states: "We beg to ask advice from the Hon. Levy Mayer, counsel for the Illinois Manufacturers' Assn., as to the legality of coercing a common car- rier to indemnify a loss incurred through the neg- ligence of said carrier in not complying with the following instructions, having the carrier's official signature in acknowledgment of same : 'Dear Sir: You will please take notice and in- struct your billing clerks to return to us all pack- ages that can not be routed over your lines, as we desire no local transfers made. Should you ac- cept or deliver any of our freight to another com- pany, we will hold you liable. Yours very truly,' We also beg to cite the case at issue over which the controversy arose. At a certain date we made a shipment to a concern, but through an error on the part of our Shipping Clerk the package was misdirected and given to the carrier who could have handled this package in the event that it had been addressed correctly, but inasmuch as the ad- dress given was not a common point of the receiv- ing carrier, they could not route it, but deliberately ignored our instructions, effected a local transfer to another carrier over whose lines this misdi- rected package could be routed, thereby causing 314 a great delay and inconveniences to both custo- mer and ourselves, and after any amount of trac- ing and corresponding, finally the package was located but the consignee refused to accept goods on account of delay. We look therefore to the carrier, whose receipt we hold, to re-imburse our loss sustained. His worthy opinion in this matter will oblige," etc. The exact question, so far as I am advised, has not been passed upon by the courts. The carrier has the right to accept freight for points beyond or not upon its own line. If it accepts this freight, the liability of a carrier, as an insurer, attaches to the shipment. In the absence of a special contract, therefore, the car- rier can transfer freight to other or connecting lines. In the present case the package was misdirected through the mistake of the shipper. The carrier had the right to assume that the package was correctly ad- dressed. The delivery of the package to the car- rier, the package being addressed to a point not on the line of the carrier, was at least an implied direction to the carrier to ship to the address indicated, even though that address was on a connecting line. I as- sume that a way-bill or railroad receipt or bill of lad- ing is, in every instance, issued by the carrier. The contract of shipment, therefore, was entered into be- tween the shipper and the carrier for the transporta- tion of goods to a point not on the line of railway of the carrier. The carrier, therefore, had the right to transfer the shipment to a carrier whose lines did reach the point of destination. The shipper seeks here .to hold the carrier liable because the carrier has made such a transfer in viola- tion of a previous letter of instructions to the shipper. The shipper is seeking, by means of a letter, to qualify his future dealings with the carrier, the terms of which letter are not consented to by the carrier. He is thus, in effect, without the consent of the carrier, attempt- ing to make the letter a part of and a limitation upon the subsequent contract, when such letter is at vari- 315 ance with the express terms of the contract. If the shipper wishes to restrict the terms of the contract of shipment and impose upon the carrier the duty of returning goods which have been delivered to it for shipment, because the place of destination is not on the line of the carrier, then such restriction should accompany each delivery so as to be part of the par- ticular contract of shipment, and no bill of lading should be accepted. The liability of the carrier for delay is covered in my opinion of October 28, 1902, in answer to the query of F. T. Bentley, Chairman of the Traffic Committee. The liability of the initial carrier for delay occurring on connecting lines, is covered in my opinion of Octo- ber 30, 1903, in answer to the query of the Austin Mfg. Co. NOTE: See the opinion of November 7, 1906, for the John E. Burns Lumber Company as to the right of a carrier to control the routing of shipments; and also the cases therein cited of So. Pac. Co. v. Interstate Commerce Com'n., 200 TL S., 536 (1906); L. $ N. B. Co. v. West Coast Naval Stores Co., 198 U. S., 483; A., T. $ S. F. B. Co. \. D. $ N. 0. B. Co., 110 U. S., 667, 680 ; Post v. So. B. Co., 103 Tenn., 184, 52 S. W., 301; Lowe v. Seaboard Air Line B. Co., 63 S. C., 248, 41 S. E., 297. Ed. CONSTITUTIONALITY OF THE FOREIGN CORPOEATION LAW OF NEW YORK. (Oliver Typewriter Co., February 8, 1904.) "Will you kindly find out for us from the at- torneys of your association whether the laws of the state of New York in connection with foreign corporations doing business in that state, have been declared constitutional, so far as the follow- ing items of taxation are concerned, viz. : For license for the privilege of exercising its corporate franchises or carrying on business based on the amount of capital stock employed in New York state, per chapter 558, Laws of 1901, Sec- tion 181, tax 1^4 mills (.00125). For tax or franchise or business based on value of capital stock employed in New York state, per 316 chapter 908, Laws of 1906, Section 181, and acts amendatory thereof, for the year ending Oct. 31st, tax V/ 2 mills (.0015). If we remember correctly, one of the statutes was under consideration in the Courts, about a year ago; just what the result was, however, we do not know." "Laws of 1906" referred to in paragraph 3 of the above communication probably refers to Laws of 1896. The law passed in 1901 (Section 181, Chap. 558) is an amendment to the law passed in 1896 (Chap. 908). The two laws referred to in the letter of the Oliver Typewriter Company, are therefore one and the same. The law as amended provides : "Every foreign corporation, except banking corporations, fire, marine, casualty and life in- surance companies, co-operative fraternal insur- ance companies and building and loan associations, authorized to do business under the general cor- poration law, shall pay to the state treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercis- ing its corporate franchises or carrying on its business in such corporate or organized capacity in this state, to be computed on the basis of the capital stock employed by it within this state, dur- ing the first year of carrying on its business .in this state; and if any year thereafter any such corporation shall employ an increased amount of its capital stock within this state, the same license fee shall be due and payable upon any such increase. The tax imposed by this section on a corporation not heretofore subject to its pro- visions shall be paid on the first day of Decem- ber, nineteen hundred and one, to be composed upon the basis of the amount of capital stock em- ployed by it within the state during the year pre- ceding such date, unless on such date such cor- poration shall not have employed capital within the state for a period of thirteen months in which case it shall be paid within the time otherwise 317 provided by this section. No action shall be main- tained or recovery had in any of the courts in this state by such foreign corporation without obtain- ing a receipt for the license fee hereby imposed within thirteen months after beginning such busi- ness within the state, or if at the time this sec- tion takes effect such corporation has been en- gaged in business within this state for more than twelve months, without obtaining such receipt within thirty days after such tax is due. ' ' The statute has been in effect upheld in Dunbarton Co. v. Greenwich Co., 83 N. Y. Sup., 1054. In my opinion the statute is constitutional. THE EFFECT OF IMPROPER SERVICE OF PROCESS UPON COR- PORATIONS IN THE STATE OF TEXAS. (Western Cottage Piano and Organ Company, Feb- ruary 8, 1904.) "We would be pleased to have counsel for your Association advise us in the following matter: Through alleged misconduct of a former sales- man and collector, acting for our company in the state of Texas, we are being subjected to a series of very annoying lawsuits instituted in the state courts of Texas. In order to get service upon our company, plain- tiffs have served citations and copy of petition on our collector, who is not a proper agent under the statute, upon whom service may be had, but our local attorney advises us that his motion to quash service operates as our appearance to the next term of court, and that the Supreme Court of Texas has held that upon motion to set aside or enjoin the enforcement of a judgment, void or irregular by reason of improper service, the op- posite party may, upon cross-bill, relitigate his original cause of action. According to these hold- ings we are compelled to litigate in the state courts of Texas. The amount sought to be recov- 318 ered not being $2,000 in any one case, the action is not removable to the Federal Courts. The question now is, are we compelled to try cases in Texas courts by the fiction of serving citation on an improper person? Could we, by any method, force trial in a Federal Court? Col- lection of an execution could be had by garnish- ment proceedings on customers with whom we do business in Texas, and it would not be necessary to sue us here upon a foreign judgment to make amount of a judgment obtained in Texas." The holdings of the Texas courts to the effect that a motion to set aside a judgment rendered upon ir- regular service constitutes an appearance are based upon statutory provisions peculiar tp the state of Texas. Aetna Life Ins. Co. v. Hanna, 17 S. W., 35. Railway Co. v. WUtley, 13 S. W., 853. York v. State, 11 S. W., 869. The validity of these statutory provisions has been passed upon by the United States Supreme Court, and that court has held that they do not contravene the provisions of the Federal Constitution. York v. Texas, 137 U. S., 15. Kauffman v. Wootters, 138 U. S., 285. The Supreme Court also held that these provisions are not applicable to actions in the federal courts. Southern Pacific Co. v. Dentpn, 146 U. S., 202. Under these circumstances no relief can be had in the federal courts where the amount in dispute is less than $2,000. The Supreme Court of the United States said in York v. Texas, supra: "The state has full power over remedies and procedure in its own courts and can make any order it please in respect thereto," etc. And again: "If the defendant had taken no notice of this suit, and judgment had been formally entered upon such insufficient service, and under process thereon his property, real or personal, had been 319 seized or threatened with seizure, he could by original action have enjoined the process and pro- tected the possession of this property. If the judgment had been pleaded as defensive to any action brought by him, he would have been free to deny its validity. There is nothing in the opinion of the Supreme Court or in any of the statutes of the state, of which we have been ad- vised, gainsaying this right." I do not pass upon the question of the validity of the service upon the company, as I have not before me a copy of the return upon the summons. Where there is a total lack of service the judgment is void, but if the service is merely irregular or de- fective, and actually gives the defendant notice of the proceedings, it is only voidable. .Of course, if the judgment is void it can not be sued on in another state, nor made the subject of garnishment proceedings. WHETHER A MINOR MAY INSTITUTE LEGAL PROCEEDINGS WITHIN TWO YEARS AFTER ATTAINING HIS MAJORITY FOR DAMAGES ON ACCOUNT OF INJURIES. (Rosenow & Co., February 8, 1904.) "We have the opinion of Mr. Levy Mayer, Chi- cago, Nov. 21, 1923, regarding damage suit for injured of the communication of the Mount Ver- non Car Manufacturing Co. before us. We would like to ask if same answer applies to minors. We understand that the injured, if a minor, has the right to sue until he is of age." The law (Section 1, Chap. 70, Kurd's Rev. Stat. of 1901, p. 1002 ; Sec. 2, Act of May 13, 1903, Laws 1903, p. 217) providing for a recovery when the death of a person is caused by the wrongful act, neglect or de- fault of another, makes no exception in favor of a minor. The limitation of one year applies to all per- sons, including minors, where death is the cause of action. Section 14 of the Limitation Law (Kurd's Rev. 320 Stat., p. 1163) provides that actions for damages for injuries to the person shall be commenced within two years after the cause of action accrued. Section 21 of the same law provides : "If the person entitled to bring an action, men- tioned in the nine preceding sections, is, at the time the cause of action accrued, within the age of twenty-one years, or if a female, within the age of eighteen years, or insane, or imprisoned on a criminal charge, he or she may bring the action within two years after the disability is removed." The injured minor under that section is entitled, therefore, to bring suit at any time within two years after he or she attains his or her majority. THE MECHANICS' LIEN LAW OF ILLINOIS. (Kaestner & Co., February 8, 1904.) "Is there such a thing as protection under our present Mechanics' Lien Laws, and what is need- ful to protect lien rights? This question will no doubt interest many of our members, and there seems to be a difference of opinion among attor- neys as to whether a lien can be enforced, etc." The legislature of Illinois on May 18, 1903, passed an entirely new law covering the subject of mechanics' liens. (Session Laws, 1903, pp. 130, 145.) The pro- visions of that law are too lengthy to be set out here. They cover sixteen printed pages. If the statute is complied with there is no reason why a lien can not be enforced. What constitutes a sufficient compliance is a question which must be decided upon the facts in each case. AS TO WHAT CONSTITUTES " STEAM PRESSURE" UNDER SEC- TION 10 OP THE ORDINANCE FOR THE EXAMINATION AND LICENSING OF ENGINEERS IN CHICAGO. (Illinois Maintenance Co., February 8, 1904.) "We should like to have your legal opinion as to what constitutes 'Steam Pressure' under Section 321 10 of an 'Ordinance for the examination and li- cense of engineers in charge of steam machinery and steam boilers in the city of Chicago,' passed April 3rd, 1890. In this connection kindly note the wording of Section 12 of this ordinance, in which boilers op- erating at 10 Ibs. pressure or under are exempt from the provisions of the Ordinance. Are we safe in concluding that a boiler which operates part of the time at 60 Ibs. and part of the time at 10 Ibs. or under, does not need the con- stant supervision of a licensed engineer, boiler or water tender, during such times as it is operat- ing at the lower pressure!" Section 10 of the ordinance provides as follows : "It shall be the duty of the board of examiners to see that each boiler plant in the city of Chi- cago shall have a licensed engineer, or boiler or water tender, or both, as provided herein, in charge at all times when working under pressure, whose certificate of qualification shall be displayed in a conspicuous place in the engine or boiler room, and each engineer and boiler tender shall devote his entire time, while boilers are working under pressure, to the duties of the plant under his charge." " Under pressure" means while the boilers are in operation that is, while the boilers are being devoted to the operation of the motive power in connection with which they were installed. In my opinion it does not include the casual keeping up of steam at low pressure, as, for example, when the fires are banked during the night or at other times when the plant is not in opera- tion. Section 12 provides as follows: "Engineers in charge of locomotives shall be exempt from the provisions of this chapter, and all boilers used for heating private dwellings, hot houses, conservatories and other boilers carrying not more than ten pounds pressure of steam per square inch and the persons operating them shall 322 be exempt from the provisions of this chapter. The police are instructed to report all infractions of this chapter coming to their notice." This section provides that certain specified boilers shall be exempt from the operation of the law. A boiler plant can not be subject to this law at one time and not at another. If a boiler is under sixty pounds' pressure at one time and under ten pounds' pressure at another, it is within the provisions of Section 10 of the law, and must have a licensed engineer in con- stant attendance when the boiler is under pressure as provided in Section 10. WHETHER A PURCHASER CAN ACCEPT ONE PORTION OF AN ORDER OF GOODS AND REJECT THE BALANCE, AND WHETHER PRINTED CONDITIONS ON AN ORDER ARE BIND- ING. (Racine-Sattley Company, February 8, 1904.) "We submit the following statement of facts and interrogatories to you and ask you to kindly obtain from our able counsel, Mr. Levy Mayer, his opinion and answers : Facts: The R-S Co., as buyers and using printed form attached, purchased of - certain hickory buggy rims of a specified grade. The car, when received, was inspected, that part accepted being consumed and balance rejected. Seller was duly notified of inspection and disposi- tion of that part rejected was requested. Seller demanded acceptance or the rejection of entire car, which demand buyer refused. Seller now claims full payment for car and refuses to accept legal tender for that part accepted; also to give any disposition of part rejected. Is the buyer bound to accept or reject all of any shipment, or may he reject that part alone which does not fulfill specifications ? If so, please suggest proper wording to fully protect buyer, as intended and outlined above. 323 Again, are these printed conditions, in the event that order is accepted as printed and written, bind- ing against buyer and seller, if contradictory as regards established custom used in buying, sell- ing and inspecting such commodities!" The printed form contains the following conditions: "Material shall be equal to highest grade here- tofore supplied equal to the highest standard of its kind, and at all times satisfactory to buyer as to quality, style, finish and workmanship, and sub- ject to buyer's inspection and acceptance at its works at Springfield, 111. Rejected material shall be held subject to seller's order and risk. No charge for packages or drayage will be allowed." If the contract is an entire one, the buyer must ac- cept or reject the whole. He can not accept one part and reject another. If the contract is severable, then acceptance of one part does not obligate the buyer to accept the balance. If the purchase in question was of a designated quantity, deliverable at one time, the contract would be an entire one. All of the facts are not before me, but from those submitted to me the present contract would appear to be entire. If so, then the buyer was obligated to accept or reject the entire carload. He could not accept part and reject the balance unless the terms of the contract so permitted. 24 Encyc. of Law (2nd Ed.), p. 1092. Williams v. Leslie, 66 111. App., 246. Wolf v. Dietzsch, 75 111., 205. Harzfield v. Converse, 105 111., 534. It is a general rule that when there is an acceptance by the buyer, it is binding and conclusive upon him in the absence of fraud or deceit. If there is a warranty, the buyer may ordinarily re- coup the amount of his damage in an action by the seller for the purchase price. Whether or not there is a warranty in the present case depends upon a va- riety of circumstances with which I am not familiar, as, whether or not the goods were ordered by descrip- tion or by sample, whether they were manufactured 324 or were to be manufactured, whether the defects in the goods were obvious or latent, and how and where the goods were ordered. The question must be decided from all the facts and circumstances. I have outlined above the general principles applicable to the case. The printed conditions in the order are binding upon the seller if accepted by him. The contract is, however, somewhat informal and is susceptible of im- provement, and could be worded so as to make every purchase severable as to the part accepted and part rejected. If the conditions of the contract are contrary to an established custom, the contract controls. A custom is of no effect where the subject-matter is expressly cov- ered by the contract. WHETHER A FOREIGN CORPORATION IS OBLIGATED TO PRO- CURE A WHOLESALE MERCANTILE LICENSE TAX UNDER THE LAWS OF PENNSYLVANIA. (Geo. D. Whitcomb Company, February 8, 1904.) "We enclose form i Return for wholesale mer- cantile license tax,' which was delivered to our office in Pittsburgh to be filled out. We have no capital employed in that state except the office fixtures and furniture, amounting to about $200. The office is used for headquarters for our trav- eling salesmen to conduct their correspondence and it therefore occurred to us that we are not subject to any taxation in Pennsylvania. Our goods are all manufactured in Chicago and ship- ments are made direct from here to consumers. We will appreciate it very much if you will ad- vise us what action should be taken in the matter. ' ' The "Return for Wholesale Mercantile License Tax" is made out in accordance with the provision of an act of the Legislature of Pennsylvania, passed May 2, 1899 (Session Laws, 1899, p. 184). That law provides : 325 "Each wholesale vendor of or wholesale dealer in goods, wares and merchandise shall pay an an- nual mercantile license tax of three dollars, and also persons engaged shall pay one-half mill ad- ditional on each dollar of the whole volume, gross, of business transacted annually. Each dealer in or vendor of goods, wares or merchandise at any exchange or board of trade shall pay a mercantile license tax of twenty-five cents on each thousand dollars' worth, gross, of goods so sold. Section 2. And it is provided that all persons who shall sell to dealers in or vendors of goods, wares and merchandise, and to no other person or persons, shall be taken under the provisions of this act to be wholesalers ; and all other vendors of or dealers in goods, wares and merchandise shall be retailers, and shall pay an annual license tax as provided in this act for retailers." Whether or not the company is subject to the pro- visions of the law depends upon the method pursued by the company in carrying on its business in Penn- sylvania. If the company maintains an office in Pennsylvaia as headquarters exclusively for its traveling salesmen who take orders that are subject to the company's ap- proval at the home office in Chicago, from which place all orders are filled, then I am of the opinion that the company is engaged in interstate commerce and need not, therefore, comply with the law in question. WHETHER A FOREIGN CORPORATION HAVING COMPLIED WITH THE FERTILIZER CONTROL LAW OF PENNSYLVANIA IS COM- PELLED TO COMPLY WITH THE " BONUS " ACT. (Darling & Co., February 8, 1904.) "We have a salesman traveling western Penn- sylvania who works on commission, appointing local agents to sell our fertilizers. The enclosed form of contract is used in appointing said agents. We have complied with the Fertilizer Control Law 326 of Pennsylvania by paying the stipulated amount per brand to sell our fertilizers, and a few days ago received a bonus report and capital stock re- port to fill out. Kindly advise us whether or not it is necessary that we fill out said reports under the circum- stances. ' ' I assume, from a reading of the enclosed contract, that goods are consigned by the company to its local agents in Pennsylvania, who sell the same upon a com- mission basis. The contract expressly provides that the title to the goods so consigned shall remain in the company. The question of whether or not the method of doing business pursued by the company subjects it to the operation of the foreign corporation laws of Penn- sylvania is covered by my opinion to the Association under date of July 19, 1901, in answer to the query of Darling & Co. The provisions of the " bonus" act of Pennsylvania are set out in my opinion to the Association under date of October 7, 1901, and are further referred to in my opinions of January 15, 1902, and October 30, 1903. I am of the opinion that to the extent that the com- pany has capital "actually employed or to be em- ployed" wholly within Pennsylvania it is liable for the tax. It is immaterial that the company has already complied with the so-called fertilizer control law of the State of Pennsylvania. THE EFFECT OF THE NEW UNIFOEM BILL OF LADING PRO- POSED BY THE RAILROAD COMPANIES, AND THE RIGHT OF THE RAILROAD- COMPANIES TO ADOPT SUCH BILL OF LADING. (111. Mfrs. Assn., February 13, 1904.) Dear Sir : I have your favor enclosing communica- tion from F. T. Bentley, Chairman of the Traffic Com- mittee, which communication is as follows : "Referring to the copy of the new proposed uniform bill of lading to be put in effect April 1, 327 1904, you will note that this bill of lading to be complete should carry the signature of the agent as many as three times and demands that the shipper shall sign it, with the evident intention of making a special contract for each shipment. The burden of conditions as shown on the back seems to be burdensome and inequitable. The attached circular also demands that all bills of lading shall be of a uniform size, which would be a hardship, as different lines of business demand different shapes and forms of receipts. Under the circum- stances the traffic committee feels that it would be advisable to submit this bill of lading to Mr. Mayer for an opinion as to whether it can be en- forced by the railroad companies as it stands in regard to state and interstate commerce business. If his opinion is against the use of it, we feel that a circular letter should be sent to the various mem- bers of the association, so that if they desire they may not feel compelled to agree to the burdens imposed by this document." I have examined the proposed uniform bill of lading. Eleven different conditions limiting or affecting the liability of the carrier are printed on the back of the bill of lading, and made a part of it. To these condi- tions the following most important note is appended: "NOTE Unless otherwise provided in the classi- fication, property will be carried at the tariff rates, if shipped subject to the conditions of the Uniform Bill of Lading. If the shipper elects not to accept the said tariff rates and conditions, he should so notify the Agent of the receiving carrier at the time his property is offered for shipment, and if he does not give such notice it will be understood that he desires his property carried subject to the Uniform Bill of Lading conditions, in order to secure the re- duced class rates thereon. Property carried not subject to the conditions of the Uniform Bill of Lading will be at the carrier's liability, limited only as provided by Common Law and by Laws 328 of the United States and of the several States, in so far as they apply. Property thus carried will be charged twenty per cent, higher (subject to minimum increase of one cent per one hundred pounds) than if shipped subject to the conditions of the Uniform Bill of Lading, and the cost of Marine Insurance will be added over any part of the route that may be by water. ' ' The situation thus presented is extremely important, and affects all shippers alike in this country. I. There is no rule of law, in the absence of ex- press statute, which requires a railroad to give a bill of lading for goods delivered to it for transportation (Johnson v. Stoddard, 100 Mass., 306), unless a long established custom has grown into a legal duty. The carrier has the right to adopt such regulations as to the issuance of its bills of lading as it may see fit, pro- vided such regulations are reasonable. I do not believe that there is anything unreasonable in the requirement that bills of lading be of uniform size and that three copies of the same be signed. II. The uniform bill of lading, however, attempts to greatly limit the carrier's liability at common law. The liability of the carrier at common law is ordinarily that of an insurer against all losses or damage not arising from the act of God, the public enemy, the act of public authority, the act of the shipper and the inherent nature of the goods shipped (Hutchinson on Carriers, Sec. 170a). Sec. 33, of Chap. 114, of the Railroad Act of Illinois, provides as follows: That whenever any property is received by any railroad corporation to be transported from one place to another, within or without this state, it shall not be lawful for such corporation to limit its common law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation ex- pressed in the receipt given for the safe delivery of such property." See also : 329 i Sec. 1, Chap. 27, Vol. 1, S. & C. Eev. Stat., p. 899. This statute does not in terms prohibit a common carrier from limiting its common law liability by spe- cial contract. In many respects a carrier may, by express contract, limit its strict common law liability. It may by special contract limit its liability to such loss or damages as may occur on its own line of car- riage, or against loss by fire without its fault or against other loss not attributable to its negligence or that of its servants. But a common carrier cannot, even by express contract, exempt itself from liability for gross negligence or wilful misconduct or misfeasance com- mitted by itself or its servants or employes. Railway Co. v. Chapman, 133 111., 96, and cases cited. C. & N. W. Ry. Co. v. Calumet Stock Farm Co., 194 111., 9. Arnold v. I. C. R. R. Co., 83 111., 273. Brown v. Railroad Co., 36 111. App., 140. The conditions of the uniform bill of lading, there- fore, even if otherwise valid and even if accepted by the shipper, will not abrogate the liability of the car- rier for gross negligence or wilful misfeasance. III. The shipper is not, however, obligated to ac- cept the uniform bill of lading. He is entitled to have his goods carried under the strict common law liability of a carrier. The carrier can, as already indicated, by special contract, limit its common law liability. Where the carrier has two rates for carrying goods, one, if carried under a special contract at reduced rates, and the other, a higher rate if carried under the common law liability, the shipper must have real freedom of choice in making his selection. If the carrier affords the shipper no opportunity to contract for the trans- portation of freight under its common law liability as an insurer, but receives it under a restricted liability, a contract containing such restriction is void. The fact that such contract was knowingly entered into by a shipper and without demand for a different contract, makes no difference. 330 And if the carrier accepts freight without notifying the shipper of a provision in the shipping contract limiting the carrier's liability, in consequence of a re- duced rate, or that he can pay a higher rate with un- limited liability, such provision limiting the carrier's liability will not be enforced. Railway Co. v. Brown, 152 111., 439. IV. To uphold a special contract restricting liabil- ity of the carrier, there must be some consideration therefor moving to the shipper. A common carrier is bound by law to carry without any contract limit- ing its liability. If the compensation of the carrier is fixed by law, a contract to carry for the legal rate would not be a sufficient consideration for a reduction of the carrier's liability. But if the rate is not fixed by law, and the parties are left free to make their own contracts, some courts have held that the law will pre- sume that the carrier, in fixing the rate, has made an allowance for the restriction of its common law liability. Hutchinson on Carriers, Sec. 278 (2d Ed.). Rubens v. Steamship Co., 20 N. Y. S., 481. Brown v. R. R. Co., 36 111. App., 140. Many courts have held that if in fact there was no special consideration or reduced rate, this may be shown and the restriction will be inoperative. 5 Ency. of Law (2d Ed.), pp. 298-299. R. R. Co. v. McCarty, 82 Tex., 608. Cross v. Graves, 4 Tex. App., 100. McFadden v. R. R. Co., 92 Mo., 343. R. R. Co. v. Cravens, 57 Ark., 112. R. R. Co. v. Spawn, 57 Ark., 127. V. The act of Illinois of May 2, 1875 (Laws of 1873, p. 135), 3 S. & C. Eev. Stat. of 111., pp. 3309-3316, pro- hibits unjust discrimination and provides that a rail- road company shall not charge for the transportation of freight for any distance the same or greater amount of compensation than is charged for the transportation in the same direction of the same quantity of freight of the same class over a greater distance. 331 The act also provides that the railroad and ware- house commissioners shall make a schedule of reason- able and maximum rates for the transportation of freight. The provisions of the Interstate Commerce Act and the recent Elkins law are set forth in my opinion of May 25, 1903, in answer to the query of Hibbard, Spencer, Bartlett & Co. That act, among other things, provides that every carrier shall print and file sched- ules of its rates, and prohibits such carrier from charging different rates from those published in the schedules. The Elkins law provides that the rates published and filed shall conclusively be presumed to be the legal rates. The rates in the published tariffs, filed with the In- terstate Commerce Commission, are therefore the legal rates on all interstate shipments. The rates fixed by the Railroad Commission of Illinois are the legal rates for shipments which are intra-state. VI. The uniform bill of lading provides that "property will be carried at the tariff rates, if shipped subject to the conditions of the uniform bill of lading." and that property, shipped under carrier's (common law) liability, will be charged twenty per cent, higher. If, therefore, the "tariff" rates refer to the regular published rates and that goods shipped under car- rier's liability are in fact charged 20 per cent, higher, I am of the opinion that the restriction of liability is without consideration and inoperative. If, however, the rate charged where the carrier has unrestricted liability is the regular rate, and the rate for limited liability is in fact twenty per cent, less than the regu- lar rate, then the proposed restrictions may be valid. The shipper, however, is entitled to freedom of choice, as heretofore referred to, and if this is not given him, the restriction may not be operative. If the tariff rates on interstate shipments are published with the Commission, the court cannot presume that the carrier 332 gave a reduced rate in consideration of a restricted liability. As the court said in Wehman v. Railway Co. (Minn.), 59 N. W. Eep., p. 547: "But in such a case as this, any abatement of rates is forbidden by act of congress, and there- fore none can be presumed. The tariff of joint rates in the case makes no mention of any limita- tion of liability. They are taken, therefore, as rates established for carriage with full common carrier's liability; and under the act of congress no abatement could be 'made to support a contract for a limited liability. The clause is void for want of a consideration to support it." VII. I assume that the carrier has not two pub- lished rates, one with and the other without carrier's liability. If two such rates do in fact exist and the shipper is given real freedom of choice, the shipper has no cause of complaint if he accepts a reduced rate in consideration of a restrictive liability. This accept- ance may be evidenced by an express assent or by the signing by the shipper of the bill of lading. I do not pass upon the binding effect of any particu- lar condition in the uniform bill of lading. The above remarks apply to limitations of the common law liabil- ity of the carrier. There are stipulations in the uni- form bill of lading which do not actually limit the com- mon law liability of the carrier, such as a limitation of liability to losses occurring on the carrier's own lines, etc. Such stipulations are valid, whether any special consideration moving from the carrier is shown or not. NOTE: The above opinion resulted in a complaint and hearing be- fore the Interstate Commerce Commission, and as a result of the hear- ing a committee of the carriers and shippers was appointed to agree upon a new Uniform Bill of Lading. This committee arrived at an agreement in 1907, and on July 8, 1907, the Interstate Commerce Com- mission promulgated an order for all the railroads in the country to show cause why the bill of lading agreed upon by the shippers and carriers should not be adopted by all the railroads in the country. The matter is still pending at this date (Dec., 1907) before the Commission. Ed. 333 WHETHER INSTALLATION OF MACHINERY IN WISCONSIN BY AN ILLINOIS CORPORATION CONSTITUTES DOING BUSINESS. RIGHT TO RECOVER ON A QUANTUM MERUIT WHEN TRANSAC- TION IS COVERED BY AN EXPRESS CONTRACT. (Barnard & Leas Mfg. Co., March 11, 1904.) "We enclose you a copy of a contract with Mr. , Crivitz, Marinette County, Wis., taken by our agents, - - of Minneapolis, Minn., but accepted and approved by us at Moline, 111. The machinery was all shipped from Moline, and upon his failure to pay as per terms of con- tract, we placed the same in the hands of Messrs. , attorneys at Marinette, Wis., Who filed a mechanic's lien. Our rights in this matter have been contested by the Austrian con- sul at Milwaukee on account of our not having filed necessary papers as a foreign corporation in the state of Wisconsin, we claiming that in view of the contract having been approved and accepted at Moline, 111., and the machinery having been shipped from Moline, 111., and some of it from Minneapolis, Minn., that it was interstate business. In the opinion of our attorneys, the weak part of the contract is that in the contract we, the first party, agree to do the millwright work or the work of installing the machinery. We would like to have the opinion of Mr. Levy Mayer, attorney for the Illinois Manufacturers' Association, upon these points as quickly as pos- sible. A settlement has been offered, which is not satisfactory to us, as it will entail considerable loss should we accept it. Our attorneys write us as follows: 'What bothers us most is the provision in the contract that we shall furnish the labor at Crivitz to put the machinery under the contract for $4,700. This might be held to be a contract to transact business within the State, and if so, it might be 334 argued that the contract is indivisible. The propo- sition, however, does not strike us as a fair con- struction of the contract. The contract reads, that the Barnard & Leas Manufacturing Company are to furnish on cars at Moline, a soft wheat flour mill, consisting of the following machinery, which is enumerated. We could change our complaint and sue on what is called a quantum meruit, that is, on an implied contract to pay us for the value of the machinery.' Kindly give the matter your prompt attention and greatly oblige, as we wish to accept or reject the proposition and will be largely guided by Mr. Mayer's opinion in the matter." The portion of the contract material to the present question is as follows: "The first party (B. & L. Mfg. Co.) to furnish the necessary labor to build the following bins and hoppers : * * All millwright work and labor necessary to place the foregoing list of machines and connections (except as specified) in complete order ready for operation, to be furnished by the party of the first part. The first party shall also, if necessary, send an experienced miller to superintend the starting of said mill when completed, or as soon thereafter as possible, at no dollars per day, and traveling and living expenses from Moline to said mill and return, including his living expenses while on this contract. Said wages and expenses to be paid promptly by the second party in cash on demand." Leaving out the above quoted provisions of the contract, the transaction in question is an interstate transaction and does not subject the company to the operation of the foreign corporation laws. Under these provisions of the contract the company, in effect, agrees to install and connect in Wisconsin the mill which it sells to the second party. The transactions in question are very close to the borderline which sepa- rates interstate commerce from that which is intra- 335 state or domestic. Of course if the transaction is merely a single or isolated one, it does not constitute "doing business." Cooper Mfg. Co. v. Ferguson, 113 U. S., 727. But assuming that the transaction is not an isolated one, I am inclined to the opinion that the installation, etc., of the mill in question in Wisconsin, is merely in- cidental to the principal business of the company and does not take away from the company the protection of the commerce clause of the Constitution. See: Milan Mitt & Mfg. Co. v. Gorton (Tenn.), 26 L. E. A., 135. Caldwell v. North Carolina, 187 U. S., 622. As to the suggestion of the Wisconsin attorney that the complaint be amended so as to recover on a quan- tum meruit, that is, on an implied contract for the value of the machinery, this cannot be done. The only claim the company has is on the contract. Where a suit is brought upon a quantum meruit, the defendant can defend by showing an express contract. In other words there cannot be an implied and an express con- tract covering the same transaction. White v. Lueps, 55 Wis., 222. Holmes v. Stummel, 24 111., 370. Walker v. Brown, 28 111., 378. Compton v. Payne, 69 111., 354. Mead v. Degolger, 16 Wend., 637. NOTE: See also the opinion of November 21, 1903, in answer to the query of American Foundry & Furnace Co. Eid. LIABILITY OF A EAILROAD COMPANY WHEN GOODS AKE DE- LIVERED AT A NON-AGENCY STATION. (J. C. Grant Chemical Company, March 11, 1904.) "Does the fact that a railroad unloads a ship- ment on the platform of a prepay station, that is, a non-agency station where no agent is stationed to receive the goods, constitute a delivery of the goods to the consignee and relieve the railroad 336 from all liability as to safe delivery of these goods to the consignee. We made a shipment to a prepay station, pre- paying the freight, but the consignees did not re- ceive the goods, and the railroad declines to en- tertain our claim, as they say their records show that the goods were unloaded on the platform by the conductor and this constituted delivery. Have we any recourse?" The rule of the common law in respect to ordinary carriers by land (that they must make delivery to the consignee at his ordinary place of business or at his home) is, as a matter of necessity, so far relaxed that a delivery at the warehouse or depot of the railroad company, provided for the storage of goods, is suf^ ficient; and they may then hold them as warehouse- men, discharged of their more strict liability as car- riers, until they are applied for by the consignee. Eorer on Bailroads, p. 1232. In Schumacher v. C. & N. W. R.R. Co., 207 111., 199, the court, quoting from a prior Illinois decision, says: "In Gregg v. Illinois Central Railroad Company the action was for damage to grain by water, which has been stored by the railroad company in a warehouse in Augusta, Gra. The grain was not received promptly upon arrival at its destination and was stored, and while in storage was injured by a flood. In speaking of the duty of the com- pany with reference to such freight, this court said (p. 560) : 'The railroad company was not required to keep the corn in its cars on track indefinitely, and although the consignee was in default in not receiving the freight after reasonable time and opportunity has been afforded in which to take it, the carrier could not abandon it, but was required to exercise ordinary and reasonable care for its preservation as warehouseman. In the exercise of such care it might leave it in the cars, store it in its own warehouse, assuming the liability of bailee or warehouseman therefor, or it might, with the exercise of like degree of care in selecting a re- 337 sponsible and safe depository, store the grain in an elevator or warehouse at the expense and risk of the owner.' " In the absence, however, of circumstances such as are pointed out in the opinion of the court quoted be- low, there is a reasonable basis to justify the institu- tion of suit with good prospect of recovery. In McMasters v. P. R., 69 Pa., 374, McMasters, the consignee, sought to recover the value of a barrel of sugar, which was unloaded from a local freight train on the platform of a minor station where the company had no agent. The defense was that the local freight train stopped at all the stations on the road, and at the one in question, at which the business was not of sufficient importance to warrant the erection of ware- houses, or to have freight agents ; that there was a no- torious custom, which had been acquiesced in by all persons in the neighborhood receiving freight, to de- liver goods at the station without storing them; and that plaintiff had been in the habit of receiving goods in this way for a long time and was aware of the cus- tom and acquiesced in it. The court held that a custom may control the general law of liability of carriers if reasonable, continued and acquiesced in by all acting within its operations, and that where it is so known and practiced by the community, it is the law of the particular business in which it exists and the parties are presumed to have contracted with respect to it. The custom relied upon was held to be a good custom. At page 380 the court said: "In all cases where this (usage and course of business modifying liabilities of carriers) is relied upon by the carrier the custom or usage must be clearly proved and that the employer knew it, or is presumed to know it, by reason of its generality in the neighborhood where it is claimed to exist. * * * The case below was well ruled. Both points, the delivery of the sugar and the custom were found on proper instructions, in favor of the defendant. ' ' Ordinarily delivery on a station platform is not a 338 sufficient delivery to the consignee, yet under special circumstances and under a well-proved custom such 'delivery might be held valid. NOTE: See the opinion of July 20, 1906, for the Illinois Sewing Machine Co. upon the liability of a railroad for goods delivered at a "prepay station," citing the following cases upon the question: Allam v. Penn. B. Co., 183 Pa., 174, 38 Atl., 709 (1897) ; Hill v. 8t. L. S. W. Ey. Co., 67 Ark., 402, 55 S. W. 216 (1900) ; S. $ N. A. B. Co. v. Wood, 66 Ala., 168; Wells v. Wilmington, $c., B. Co., 51 N. C., 47; L. ^ N. B. Co. v. Gilmer, 89 Ala., 534, 7 So., 654; McMasters \. Penn. B. Co., 69 Pa., 374. Ed. LEGALITY OF A CONTRACT OF CONDITIONAL SALE RESERVING TITLE IN THE VENDOR. (Gregory Electric Company, March 11, 1904.) "We enclose herewith a copy of one of our reg- ular contracts which you will observe is practically the standard contract now used by the majority of engine and dynamo builders, the same being a conditional contract. Kindly refer this contract to your legal department and advise us whether you consider this contract, properly signed and executed, acknowledged and recorded, would be a good contract against third parties. Or, in other words, would we have protection against other creditors if selling a machine on this contract. The clause we particularly desire information about is clause 21, where we state in this contract that after being signed, this contract is to be con- strued, accepted and completed in Illinois. We are aware that in Illinois such a contract is no protection against other creditors; also in Louisi- ana. A special form of contract must be used, stating that the contract was completed in Louisi- ana : otherwise there is no protection against other creditors. Would you consider that clause 21 invalidates the contract in any way? In our business we em- ploy no traveling salesmen; all orders are sent to our office here at Chicago direct by our cus- tomers, by mail, or are placed here in the house, and you will note all contracts are subject to ap- proval by an executive of this company, here at Chicago. We think a large number of your members have this question of the validity of a contract coming up at all times, and think the matter of common interest to us all. If you agree with us, kindly let us have your opinion." The contract referred to is a contract of bargain and sale. Clause 13 provides as follows: "The title to the apparatus shall not pass from the Gregory Electric Company until all payments hereunder (including deferred payments and any notes or renewals thereof, if any) shall have been fully made in cash; and the purchaser agrees to execute, or cause to be executed, acknowledge and deliver to the Gregory Electric Company all legal instruments necessary and appropriate to pre- serve the title of the Gregory Electric Company therein. ' ' Clause 21 provides as follows : "The foregoing proposal is subject to the ap- proval of an executive officer of the Gregory Elec- tric Company, and shall not be binding upon the Gregory Electric Company until so approved, nor unless accepted by the purchaser within twenty days from the date hereof, and after being signed by both parties and approved by an executive officer of the Gregory Electric Company this agreement shall become and is hereby declared to be a contract to be construed as accepted and com- pleted in Illinois." In Illinois the contract in question constitutes a "conditional sale." Such a sale is valid as between the parties to it in every State in the Union. As against third parties the rule is variant in the different States. In this State if a person agrees to sell to an- other a chattel on the condition that the price should be paid within a certain time, retaining the title in himself in the meantime, and the chattel is delivered to the vendee so as to clothe him with an apparent 340 ownership, a bona fide purchaser from the vendee, or an execution or attachment creditor of the vendee, is entitled to protection as against the claim of the orig- inal vendor. Gilbert v. National Cash Register Co., 176 111., 288, and cases cited. Harkness v. Russell, 118 U. S., 678. Hervey v. Rhode Island Loc. Wks., 93 U. S., 664. Dooley v. Pease, 180 U. S., 126. Murch v. Wright, 46 111., 487. In re Alexander Rodgers, 125 Fed., 169. There is no mode under our law, except by chattel mortgage, duly acknowledged and recorded, by which the owner of personal property retaining its possession can give another a lien on it, that can be enforced against creditors and subsequent purchasers; nor will the recording of a contract of condition sale, under the Chattel Mortgage Act, give it the effect of a chat- tel mortgage. (Cases cited, supra.) The only safe course to pursue is to procure the execution of a chattel mortgage in each case. In many States the rule is the same as in Illinois. In other States actual notice of the contract on the part of the attaching or execution creditors will be binding, even though the contract is not recorded, and in other States the contract is binding on the creditor though it is not recorded and even though the creditor has no notice. Clause 21 of the contract under consideration is valid and binding. This clause has the effect of making the contract an Illinois contract to be construed in accord- ance with the laws of Illinois. But the rights of attach- ing or execution creditors, or subsequent purchasers, must be determined by the law of the State where the property is situated, irrespective of where the owner is domiciled or where the contract was made. There- fore, though the present contract is an Illinois con- tract, the question of priority as between the original vendor and the creditors of the vendee must be de- 341 termined by the law of the State where the property is situated and the proceedings are had. Green v. Van Buskirk, 5 Wall., 307. Hervey v. E. I. Loco Wks., 93 U. S., 664. Dooley v. Pease, 180 U. S., 126. In re Rodgers, 125 Fed., 169. I am therefore of the opinion that the contract in question is a valid and binding contract between the parties. Whether or not it is valid as against subse- quent purchasers or execution or attaching creditors, must be determined by the law of the State where the property is located. As I have stated, it is not valid in Illinois. NOTE: See the opinion of April 20, 1907, for the Comptograph Company collating the requirements of the laws of all the states upon the subject of conditional sales. Ed. AS TO WHAT CONSTITUTES INFRINGEMENT OF A TRADE-MARK AND WHO IS LIABLE THEREFOR. (J. E. Tilt Shoe Company, March 11, 1904.) "We send our salesmen out and obtain orders. After these orders are received, we make and ship the shoes at the time designated in the order, and we make these shoes and stamp them or print them as the buyer dictates, and in many cases they have instructed us to put on their shoes the name Regent. In such cases we have ordered from a Boston firm strapping with this name Eegent, and also have instructed our box makers to put the name Regent on the end of the cartons. Will you please advise us what is our position! Are we liable in carrying out the instructions from our customers?" Three things are requisite to the acquisition of a title to a trade-mark; first, the person desiring to ac- quire title must adopt some mark not in use to dis- tinguish goods of the same class or kind already on the market belonging to another trade; second, he must apply his mark to some article of traffic, and 342 third, he must put his article, marked with his mark, on the market. Schneider v. Williams, 44 N. J. Eq., 391. Assuming that the trade-mark in question is a valid trade-mark, it protects a property right. The cus- tomer cannot violate it himself and his order to the manufacturer is no authority for its infringement by the latter. The right to a trade-mark is a property right, for the violation of which damages may be recovered in an action at law, and the continued violation be restrained in equity. U. 8. v. Steffens (Trade-mark Cases), 100 U. S., 82, 92. Positive proof of fraudulent intent is not required to give a right to an injunction, where the proof of infringement is clear. McLean v. Fleming, 96 U. S., 245, 253. Injunction may be granted even though defendant was ignorant that the devices or symbols were the property of another. Davis v. Kendall, 2 B. I., 566, 568. In Millington v. Fox, 3 My. & Cr., 338, where an in- junction was granted, the court said : ' * It is positively denied by the answer, and there is no evidence to show that the defendants were even aware of the existence of the plaintiffs, as a company manufacturing steel. * * * In short, it does not appear to me that there was any fraud- ulent intention in the use of the marks. That cir- cumstance, however, does not deprive the plain- tiffs of their right to the exclusive use of these names." In Cartier v. Carlile, 31 Beav., 292, where an injunc- tion was granted for an infringement of a trade-mark, the court said: * ' I am of opinion that the liability to account for the profits is incident to the injunction, and that the fact of the defendant not knowing to whom the trade-mark he copies belongs, does not in the slightest degree affect the right of the owner to an 343 injunction, and to an account of the profits, as soon as he ascertains that it is imitated and used. ' ' In Barnett v. Leuchars, 13 L. T. N. S., 495, plaintiff and defendant made similar fireworks. At the request of his customer and without making any false repre- sentations, defendant placed his fireworks in old boxes bearing the plaintiff's labels. An injunction was granted and the court said: ''According to the principle which governs these cases, an owner has an exclusive right to a trade- mark or label and that right is to be regarded as his property." In Tonge v. Ward, 21 L. T. N. S., 480, plaintiffs and defendants were both manufacturers; plaintiffs marked their goods with the name ' ' Tonge 's " ; de- fendant, in obedience to an order from a customer, affixed to goods made by defendant tickets with the name "Tung's"; injunction was granted for infringe- ment. In Rose v. Loftus, 47 L. J. Ch., 576, plaintiff and de- fendant were manufacturers of lime juice. Defendant at a customer's request, filled some of plaintiff's spe- cially molded bottles bearing plaintiff's name and mark, with defendant's product. He washed off the labels of plaintiff and replaced them with his own. Held, that defendant acted wrongfully but injunction did not issue on defendant executing bond not to repeat the act. In the Collins Co. v. Walker, 7 W. B., 222, the plain- tiffs were American manufacturers of edge tools, which they stamped with the words "Collins & Co., Hartford Cast Steel, Warranted"; the defendant, in accordance with a customer's orders, made knives and stamped them with the plaintiff's mark. The defendant acted in ignorance of the plaintiff's existence. Injunction was nevertheless granted. In Dixon v. Fawcus, 3 Ell., 537, "A" and "B" were manufacturers. In accordance unth a customer's order, "A" manufactured firebricks marked with the trade- mark of " B. " The latter brought a bill for an account- ing and an injunction against "A," who compromised 344 with him at considerable expense. "A" then brought an action at law against the customer for the loss which his order had occasioned. In this second suit it was held that "A" was justified in compromising the earlier litigation with the other manufacturer, although innocent of intentional fraud since that would have been no defense in equity and that "A" was entitled to recover from the customer. The New York Court of Appeals in Colman v. Crump, 70 N. Y., 573, said where the defendant, who was a label printer, sold labels bearing an imitation, that it was not necessary to establish a guilty knowl- edge or fraudulent intent on the part of the wrong- doer. It is sufficient that the proprietary right of the party and its actual infringement are shown. See Brown on Trade-Marks, p. 64, wherein is cited a case where the French courts went so far as to hold a printer criminally liable who executed imitations on the order of a third party. Printing and selling labels in imitation of a trade- mark, with the purpose of enabling the parties to whom the labels are sold to palm off their goods upon the public as the goods of the owner of the trade-mark is a violation of the rights of such owner. DeKuyper v. Witteman, 23 Fed., 871. An injunction to restrain the infringement of a trade- mark will not be refused because defendants bought boxes with infringing labels on them without knowing of the infringement. Cuervo v. Landauer, 63 Fed., 1003. The use by a manufacturer of imitative labels and devices, in connection with an inferior article, which is sold to retailers at a reduced price, with the purpose and result of enabling them to sell it to customers as the goods of another will be enjoined. Garrett v. Garrett & Co., 78 Fed., 472. It is no sound objection to the granting of a pre- liminary injunction that defendants are sellers only, and not manufacturers. Hansen v. Siegel & Cooper, 106 Fed., 690. The amount recoverable from a wilful infringer is 345 not limited to the profits made by the defendant, but includes also the damages resulting to the complainant from the injury to his business or the reputation of his goods. Hennessey y. W. L. Co., 103 Fed., 90. A party whose trade-mark has been violated, is en- titled to recover all the profits realized from the sale of the spurious articles, and also all damages resulting from such violation. Gato v. Cigar Co., 6 L. B. A. (Fla.), 823, 827. Pelts v. Eichele, 62 Mo., 171. Marsh v. Billings, 1 Gush., 322. Atlantic Milling Co. v. Robinson, 20 Fed. Rep., 217. Hostetter v. VowinUe, I Dill., 329. Pitts v. Hall, 2 Blachtf., 229. The owner of a trade-mark is entitled to nominal damages for the violation of his trade-mark, although it is not shown that he sustained actual damages and although the defendant's articles are not inferior to his own. Gato v. Cigar Co., 6 L. B. A., 823, 827 (Fla.). Thomson v. Winchester, 19 Pick., 214. Conrad v. Brewing Co., 8 Mo. App., 277. "The proper measure of damages in case of violation of a trade-mark is generally the profits realized upon the sales of the goods to which the spurious marks are attached * * The actual damages would seem, as a general rule, to be all that could be reasonably claimed. There may be exceptions. Cases may arise where the circum- stances are aggravated, and such as to repel alto- gether the bona fides of the infringement. Each case must necessarily depend upon its own cir- cumstances. ' ' Brown on Trade-Marks, sec. 503. Under the cases cited injunction will lie against the buyer who orders the shoes, against the manufacturer who makes and packs the shoes, and against the other manufacturer who makes the strapping with the in- fringed name upon it and against the box-makers who 346 make the cartons bearing the infringed name ; all this is upon the assumption that the word "Regent" is an infringement. Upon that question, however, my opin- ion is not asked. THE FOREIGN CORPORATION LAW OF MINNESOTA AND WHETHER THE MAINTENANCE OF A TRANSFER HOUSE CON- STITUTES "DOING BUSINESS." (Rock Island Plow Company, March 16, 1904.) ' ' Acknowledging your favor of February 6th, we have received from Secretary Glenn your opinion as to the Manufacturers ' Association taking a test case to the court of final resort to secure decision under the Minnesota statutes with reference to doing business in that State, and as we have al- ready found several of the members who are inter- ested in like manner as ourselves, who have found that on goods being sold in Minnesota defense is interposed because of failure to comply with the State laws, we would like to have this matter re- ceive your further consideration. While we presume you are already familiar with the decision of the United States Supreme Court in re E. M. Caldwell v. State of North Carolina, 23 U. S. Supreme Court Rep., 229, the similarity of the two cases, manner of doing business; that in question, of taking orders for pictures and frames, shipping them into the State and assem- bling them there by the work of an agent and col- lector, we feel certain of a like favorable decision on the question of our manner of transacting busi- ness, and while in your opinion you refer to the decision of the Supreme Court of Minnesota in Heilman Brewing Co. v. Peimeisl, as this last was not taken to the Supreme Court of the United States we cannot see that it is more than the con- struction of the Minnesota Supreme Court, par- ticularly because of the difference between the brewing company's manner of doing business and 347 that of ourselves as compared with the decision in re Caldwell v. State of North Carolina. We would particularly like to have you favor us with your views after further consideration." I am familiar with Caldwell v. State of North Caro- lina, 187 U. S., 622, and have several times referred to it in opinions rendered to the Association. (See opinions of October 26, 1903, and No- vember 21, 1903.) The facts in that case were as follows: A portrait company, carrying on business here, obtained orders through an agent in another State for pictures and frames. In filling the orders it shipped the pictures and frames in separate packages, for convenience in packing and handling, to its own agent, who placed the pictures in their proper places or frames and delivered them to the persons ordering them. The court held that this was a transaction of interstate commerce. ' The situation of the portrait company in the Cald- well case differs materially from that of the plow com- pany in the present case. In the first place the por- traits were all shipped in pursuance of prior orders. No stock of goods was kept in North Carolina, The plow company maintains a "transfer house" and there keeps a stock of goods, which it delivers to its cus- tomers upon orders which may thereafter be received. The holding in the Caldwell case merely was that the method of delivery was no different in legal effect than if the goods were shipped direct to the purchaser. I, therefore, re-affirm my former opinion. NOTE: See the opinion of July 13, 1907, for the Kingman Plow Co. as to whether the maintenance of a transfer house is ' ' doing busi- ness," and the cases of Rock Island Plow Co. v. Peterson, 93 Minn., 356, 101 N. W., 616 and Thomas Mfg. Co. v. Knapp, 112 N. W., 989 (Minn. 1907). Ed. 348 THE FOREIGN CORPORATION LAW OF MASSACHUSETTS AND WHETHER THE SHIPMENT OF GOODS ON CONSIGNMENT BY A FOREIGN CORPORATION CONSTITUTES DOING BUSI- NESS. (Wilcox Manufacturing Company, March 17, 1904.) "A claim is advanced by the commissioner of corporations of the commonwealth of Massachu- setts that we are doing business in the State in violation of Chapter No. 437 of the Act of 1903. Briefly stated, the facts are as follows : We are selling goods manufactured here in Aurora to the general hardware trade throughout the New Eng- land states. The selling end of the business is conducted by the Hardware Agency Company, of Boston, to whom we make consignment of goods for the purpose of facilitating delivery in that section. We pay no rent for warehouse or office privileges, nor do we furnish or pay for any services in connection with the handling of these goods, except as the Hardware Agency Company may earn commissions in making sales thereof. In addition to this arrangement, we employ a traveling salesman in New England on whose sales some goods are delivered from this Boston stock, but who is not authorized to open new accounts without the .approval of this office, and the ma- jority of his orders are filled by direct shipment from here. Prices, terms and settlements are made by and with this office in every instance. We should like to have the opinion of your counsel on the question of whether or not we are 'doing busi- ness' in the State of Massachusetts in violation of the law above cited. The matter is covered by my opinion to the Asso- ciation of July 19, 1901, in answer to the query of Darling & Co. As I stated in that opinion, the ques- tion of whether or not a corporation which consigns its goods to agents in another State, who sell the same 349 on commission, constitutes "doing business" in that other State, is a question of doubt upon which there is much conflict in the authorities. Since that opinion has been rendered the following decisions have been rendered : In re Hovey's Estate, 48 AtL, 311 (Pa.). (Feb- ruary, 1901.) Waller v. Rothfield, 73 N. Y., 141 (October, 1901). Union Cloak & Suit Co. v. Carpenter, 102 111. App., 339. (May 23, 1902.) In re Hovey's Estate, 48 AtL Eep. (Pa.), 311, the question arose as to whether the consignment of goods by a foreign corporation constituted "doing business," but the question was not passed upon, the court re- marking that it was "not free from doubt." In Waller v. Rothfield, 73 N. Y. S., 141, a commis- sion merchant in the city of New York took from a dealer an order for goods which he forwarded to a foreign corporation, which sent the goods direct to the dealer. It was held that the foreign corporation was not doing business in New York. In Union Cloak & Suit Co. v. Carpenter, 102 111. App., 339, the plaintiff was a New Jersey corpora- tion. It sent two bills of consignment goods to Chi- cago, marked "Memorandum Goods." The title to the goods remained in the plaintiff, subject to the right of the consignee to sell as many as they could at the price fixed by the plaintiff. When the goods were sold the money was to be sent to plaintiff, and, if not sold, the goods were to be returned to the plaintiff. It was held that the plaintiff was doing business in Illinois. In view of the tendency of the courts, the chances are perhaps a little more than even that the Massa- chusetts court would be inclined to hold that the Wilcox Manufacturing Company is doing business there. The question is not at all free from doubt. I can find no controlling decision by the courts of Massachusetts. If the expense is not in the way the facts justify mak- ing a test case in that State. A good deal may depend 350 upon the terms of the consignment contract, and in whom the title to the goods remains, and in whose name the goods are sold. The inquiry does not cover these suggestions. The taking of orders through the medium of a trav- eling salesman does not, however, constitute "doing business." THE FOREIGN CORPORATION LAW OF MASSACHUSETTS AND WHETHER THE CARRYING OF A STOCK OF GOODS AND MAKING DELIVERIES THEREFROM CONSTITUTES DOING BUSINESS. (Chicago Varnish Company, March 16, 1904.) "Referring to the Foreign Corporation law in Massachusetts, changes in which went into effect August 1st, 1903, we have your circular dated Oc- tober 24, 1903, containing the opinion of your Mr. Levy Mayer, and also one dated July 18, 1901, on what constitutes doing business in a foreign State. We seek further information as to what constitutes doing business in Massachusetts, and are in hopes that since the dates mentioned some decisions have been rendered which might have a bearing on this particular case. Would the employment of a resident agent whose sole duties would consist in taking orders for shipment from Chicago or a branch at New York, by an Illinois corporation, necessitate its compliance with the requirements of this act? And, again, would the storage of a small stock of goods from which delivery could be made under the direction of the resident agent, but billed from Chicago or New York, cause it to be amen- able to the foreign corporation laws of that State?" The employment of a resident agent for the pur- pose of taking orders for the shipment of goods from without the State is not doing business, and does not necessitate compliance with the foreign corporation laws. 351 Whether the storage of a small stock of goods in Massachusetts from which delivery is made under the direction of the resident agent constitutes "doing busi- ness" presents a more difficult question. In an opinion rendered June 21, 1901, in answer to the query of the Wrisley Company, I stated that where a company kept a small stock of goods in a foreign State, in the hands of its traveling salesmen, who out of such stock, but not in the ordinary course of business, in isolated instances executed "hurry orders," that this probably did not constitute doing business. In numerous other opinions I have stated that single or isolated transactions did not constitute doing business. In an opinion to Deere & Co. under date of October 30, 1903, I stated that the maintenance of a transfer house in a foreign state where goods were stored and from which deliveries were made, probably constituted "doing business." I am inclined to the opinion that the keeping of a stock of goods in the foreign state and making of de- liveries therefrom, in the manner above referred to, constitutes i l doing business ' ' there. See further on this subject my opinion of this date to Wilcox Manufacturing Company on the Massa- chusetts law in question as it relates to consignments. IN REFERENCE TO F. O. B. SHIPMENTS AND THE EFFECT OF THE EQUALIZATION OF FREIGHT RATES. (S. A. Maxwell & Co., March 19, 1904.) "We have read the opinions given by Mr. Levy Mayer regarding the liability of the consignor for shipments damaged in transit, but it seems our method of doing business is different from the cases quoted. We equalize freights with Kansas City and Omaha as well as various other cities, on all of our shipments. We do not quote prices f. o. b. these different cities, but agree to equalize freight rates from these points. 352 We enclose you our terms and would' like Mr. Mayer's opinion as to whether we are liable for goods damaged in transit between Chicago and Kansas City the same as if we had quoted the goods f. o. b. Kansas City. We do not prepay the freight, but the customer deducts for the amount when he remits the amount of the bill. Of course, for shipments made to customers in Kansas City they deduct the entire amount; but for points beyond Kansas City only the amount in excess of what it would be if the shipment orig- inated in Kansas City." The "terms," which I assume are made a part of the contract, are as follows : "EQUALIZATION OF FREIGHTS. On shipments of wall paper made during the season of 1903-4, we will equalize freight with the following points: Buffalo, N. Y. Hannibal, Mo. Cedar Rapids, Iowa. Kansas City, Mo. Chillicothe, Ohio. Minneapolis, Minn. Cincinnati, Ohio. Omaha, Neb. Cleveland, Ohio. Pittsburg, Pa. Columbus, Ohio. St. Joseph, Mo. Dayton, Ohio. St. Louis, Mo. Des Moines, Iowa. St. Paul, Minn. Detroit, Mich. Toledo, Ohio. Grand Rapids, Mich. By equalization of freight we do not mean that we pay freight to destination, but should the rate from any of the above places to your ship- ping point be less than the rate from Chicago send us your freight bills after the receipt of each shipment and we will credit the difference be- tween the freight paid by you on wall paper ship- ments made by us and what you would be obliged to pay were the goods shipped from the nearest equalization point. We request freight bills, as after passing credit 353 we file the same as vouchers. If you desire to retain the original, kindly procure duplicate copy from your freight agent for us, and we will ap- preciate the favor. We will also be obliged to you if, when send- ing us freight bills, you will state from which equalizing point you get the cheapest rates, and what the rate on wall paper from that point is. We ask for this information as it is our desire to give you credit for all you are entitled to as freight equalization, as the rates given in the tariff sheets we have are not always correct." On October 24, 1903, I stated in an opinion to Amer- ican Steel & Wire Co. that in the absence of other qualifying circumstances, the prepayment of freight by the consignor constituted the carrier the agent of the consignor, and that the title to the goods shipped did not pass until delivery to the consignee. The al- lowance of freight by the consignor to be deducted from the purchase price is the same in legal effect as a prepayment by the consignor. I also stated in that opinion that whether the title to goods passes upon the delivery to the carrier, is primarily a question of intention to be determined from the contract and from all the facts and circumstances of the case, and that, as a general rule, there being no limiting cir- cumstances, delivery to a carrier is a delivery to the consignee, the carrier being considered as the agent of the consignee. The present situation is somewhat different from that presented in the opinion above referred to. The freight is allowed to the consignee for the sole pur- pose of meeting competition at the equalization points. The payment of freight is not for the purpose of re- serving title, nor is it, in effect, an agreement to de- liver f. o. b. destination, unless there is some other provision in the contract of sale with which I am not familiar. The question whether the title passes is always one of intention, and there is nothing in the present case showing an intention to reserve to the consignor the title. Ordinarily, the prepayment of 354 freight by the consignor, or its allowance to the con- signee is construed as an agreement to deliver "f. o. b. destination" and as a reservation of title in the con- signor. But the purpose of the equalization arrange- ment is here otherwise satisfactorily explained, and I am of the opinion that there is nothing in that ar- rangement to take the shipment out of the general rule that a delivery to the carrier is a delivery to the consignee. I advise, however, that the contract or proposition of sale contain the words "Delivery f. o. b. Chicago," so as to more clearly express the intention to pass the title to the consignee and make Chicago the place of sale. THE PROPOSED FEDERAL STATUTE PLACING A PENALTY ON RAILROAD COMPANIES FOR NOT MOVING FREIGHT WITHIN FIVE DAYS AFTER OFFER OF DELIVERY HAS BEEN MADE. (Illinois Manufacturers' Association, March 19, 1904.) I have your communication enclosing draft of pro- posed federal law, submitted by the Southwestern Lumbermen's Association to the Illinois Manufac- turers' Association for its endorsement, and on which proposed law you desire my opinion. The proposed law reads as follows : " SECTION 1. It shall be the duty of every rail- road company engaged in carrying, or in giving bills of lading for carrying personal property and live stock between points in different States or Territories, upon written application by any per- son for the carriage of any such property or live stock over the railroad of any such company, or over such railroad and any connecting line or lines of railroad, to any point in another State or Ter- ritory, to receive and commence the carrying thereof within five days after the offer or de- livery thereof for such carriage and any failure to receive or commence the carrying of such prop- erty or live stock by any such company in any 355 such case shall entitle the person making such ap- plication to recover from such company, for each car necessary for such carriage, for each day after said five days during which such failure shall continue, a penalty of ten dollars, recover- able by such persons as plaintiff against said com- pany as defendant bv a civil action in a circuit court of the United States for any district in which such company may have an office and agent for the transaction of any business, upon whom summons therein may be served. SEC. 2. The provisions of the next preceding section shall apply not only to the initial railroad carrier to which such application shall be made, but also to any connecting railroad carrier en- gaged in such carrying of personal property and live stock on any railroad line or part of line between the point of the terminus of such initial carrier and the ultimate point of shipment to which connecting carrier said person shall make written application for the continued carriage of his property or live stock by such connecting car- rier. SEC. 3. It shall be the duty of every railroad company engaged in carrying personal property or live stock between points in different States and' Territories (whenever so engaged as a sole car- rier, or as an initial or connecting carrier in such carriage, to transport and haul all cars furnished to any shipper for such carriage over its line of railroad from the starting point to the point of destination thereon of such shipment, in such number of days of twenty-four hours each as will equal the number resulting from the division by the number fifty, of the total number of miles of carriage of said shipment over its line of railroad by such company with or without any remainder by such division, and for each additional day oc- cupied in such carriage, over and above such num- ber in completing such shipment, said company 356 shall forfeit and pay to the consignee of such shipper for each car so furnished and transported the sum and penalty of ten dollars to be recovered by him in the manner provided in the first sec- tion of this act. SEC. 4. It shall not be a defense to any suit under the provisions of this act, that the com- pany sued did not have the cars necessary for any shipment applied for, or did not have the requisite equipment for the carriage or hauling thereof from the point of starting to the destination there- of, or any portion thereof, on its line of railroad. SEC. 5. The penalties recoverable under this act may be sued for in one single count or state- ment in the petition or complaint, without hav- ing a separate count for the penalty of each car for each day for which such penalty is given by this act." Railroad companies are endowed with special and unusual powers with an express view to their render- ing to the public a service adequate to the needs of the country through which their lines pass, and the common law (even without statute) imposes upon them the obligation to have and furnish sufficient fa- cilities for reasonably prompt transportation of goods 'tendered for carriage, and they are liable for a failure to transport promptly, whether the failure is due to a want of facilities or to a captious refusal to carry. (7 Am. & Eng. Ency. of Law, p. 167.) In the absence of statute, sudden and unusual press of business con- stitute a defense to this liability. The carrier is only bound to provide facilities for such transportation as might reasonably have been anticipated. The car- rier, however, must give the shipper notice of the cir- cumstances and must obtain his assent, express or im- plied. In Dawson v. Chicago, etc., R. R. Co., 79 Mo., 296, the court said : "When the facilities of the carrier are adequate to the business reasonably to be expected, the de- lay caused by the emergency can not, of course, 357 be regarded as a delay caused by the negligence of the carrier." To the same effect see: Helliwell v. Grand Trunk R. Co., 7 Fed. Rep., 68. Thomas v. Wabash Ry. Co., 63 Fed., 200, 202. Hutchinson on Carriers, Sec. 292 (2nd Ed.). I. C. R. R. Co. v. Gobi, etc., 64 111., 128. Mich. Cent. v. Burrows, 33 Mich., 6. Louisville, etc., R. R. Co. v. Queen City Coal Co., 99 Ky., 217. C. & A. R. R. v. Thrapp, 5 111. App., 502. Chicago, etc., Ry. Co. v. Wolcott, 141 Ind., 267. Galena, etc., R. R. Co. v. Rae, 18 111., 488. P. C. C. & St. L. v. Racer, 5 Ind. App., 209. Faulkner v. 8. P. R. R., 51 Mo., 311, and P. C. & St. L. R. W. Co. v. Morton, 61 Ind., 539. By way of transition to the consideration of statu- tory rights of action and penalties, it may be ob- served that the right to recover given under penal statutes does not do away with the right of action existing for the breach of the carriers' ordinary com- mon law duty to furnish cars. Miss., etc., R. Co. v. Graves (Texas), 16 S. W., 102. Branch v. Railroad, 77 N. C., 324. Section 84, Chapter 114 of Kurd's Illinois Statutes requires every railroad corporation within the State to furnish, start and run cars for the transportation of property offered within a reasonable time previous thereto. Section 85, Chapter 114, provides : "In case of refusal * * to take, receive and transport property, or to deliver the same within a reasonable time, * * * such corporation shall pay to the party aggrieved treble the amount of damages sustained thereby, with costs of suit; and in addition thereto * forfeit not less than twenty-five dollars nor more 358 .than one thousand dollars * * * the treble damages for the use of the party aggrieved, and the forfeiture for the use of the school fund of the county where the offense is committed. ' ' The Supreme Court in Schumacher v. C. & N. W. Ry Co., 207 111., 199, said, as late as February 17, 1904, on page 205 : "Upon the payment or tender of the legal tolls, freight or fare such companies are required to furnish cars and transport freight and passen- gers within a reasonable time, and upon their failure to do so they are subject to treble dam- ages to the party aggrieved, and in addition there- to, a penalty or forfeiture to the school fund of the State. (Kurd's Stat., 1899, chap. 114, pars. 84, 85.)" Statutes of this character must be especially de- clared upon in manner provided by statute. The treble damages can not be recovered under a declara- tion for failure to perform duty as common carriers generally. Ill & St. L. R. & C. Co. v. People, etc., 19 111. App., 141; s. c., 122 111., 506. It was held in the above case that there is no duty to furnish cars to transport coal not yet mined. In Galveston, etc., Ry. Co. v. Schmidt, 25 S. W. Kep. (Tex.), 452, recovery was had under two articles of the Texas Civil Code, Article 4226 requiring carriers to furnish sufficient transportation for all property, and Article 4227 making them liable for damages caused by their refusal to transport. These sections embrace in Texas a duty prescribed by the common law in non- code States. Article 4227a provides a penalty of twenty-five dol- lars per day if cars are not furnished when demand is made in writing and freight charges deposited or ten- dered. The requirements of the latter article were not strictly complied with and the court held that recovery of the penalty could not be had but that damages could be recovered under Articles 4226 and 4227. In McCarty et al. v. Gulf, etc., Ry. Co., 79 Tex., 38; 359 15 S. W. Rep., 164, which was an action on a contract to furnish cars, the court said: "The statutes relied upon are found in Sayles Civ. St., Art. 4227a, sections 1, 2. These statutes evidently were enacted, not for the purpose of determining who should have power to make such contracts, but for the purpose of prescribing rules, by compliance with which the shipper should have the right to recover a penalty in case the carrier failed to furnish cars within the time specified for transportation of freight tendered. If the ship- per desires to recover a penalty, he must entitle himself to it by compliance with the law; but, if he desires only to recover compensation for breach of contract, it is only necessary for him to show a valid contract, its breach and extent of injury." To the same effect see : Receivers of M., K. & T . Ry. Co. v. Graves, et al., 16 S. W. (Tex.), 102. In Branch v. R. R. Co., 77 N. C., 324, the Supreme Court of North Carolina held that a statute which pre- scribes a forfeiture of $25 per day for delay of local shipments beyond five days after the receipt of goods by a railroad company, is constitutional, and a valid exercise of the police power of the State. At page 3^7, the court said : ' ' The legislature considered the common law lia- bility as insufficient to compel the performance of public duty. It must have thought that the in- terest of local shippers, for whose interest princi- pally the road was built, and against whom the company had a complete monopoly, were being sacrificed by wanton delays of carriage in order that the company might obtain the carriage from points where there were competing lines by land or water as from Wilmington or Augusta. It declared, therefore, that the maximum delay should be five days after a receipt for carriage and imposed a penalty for every day's delay be- yond. The act does not supersede or alter the duty or liability of the company at common law. 360 The penalty in the case provided for is super- added. The act merely enforces an admitted duty." In Bagg v. Wilmington, etc., R. R., 14 L. E. A., 596, the same court held that the s*ame statute was not an interference or regulation of interstate com- merce, as it tends to expedite such commerce. At page 599 the court said: "It was contended on the argument that a State could not compel railroad companies, doing busi- ness between States, to provide cars for removing freight within a given period without risk of im- pairing the facilities for shipment from the ad- jacent State by withdrawal of the companies' cars from it. That is evil that may be met and pro- vided against by the enactment of a similar stat- ute in the adjacent State, and thus forcing the company to provide an adjacent supply of cars to remove its freight without delay. * * * The palpable purpose of the Legislature in enacting our statute was to stimulate trade and to develop the resources of its people. It throws the aegis of State protection alike over freight consigned under the care of the State and that of which the general Government has supervision." It is worthy of comment that these State statutes, which are similar to the proposed Federal Law, con- tain no such provision as Section 4 of that law, that is, a section absolutely precluding any defense. If a State statute contained such a provision it would, in my opinion, conflict with the Fourteenth Amendment to the Constitution of the United States, which is a limitation on the power of the States. In Ohio and Miss. Ry. Co. v. Lackey, 78 111., 55, the court held to be void a statute requiring railroads to pay inquest charges and burial expenses for all per- sons killed by their trains. The court says: "An examination of the section will show that no default or negligence of any kind need be es- tablished against the railroad company, but they 361 are mulcted in heavy charges if, notwithstand- ing all their care and caution, a death should oc- cur on one of their cars, no matter how caused, even if by the party's own hand. * * It is not claimed that the liability attaches for a violation of any law, the omission of any duty or the want of proper care and skill in running their trains. The penalty is not aimed at anything of this kind. We say penalty, for it is in the nature of a penalty, and there is a constitutional inhibition against imposing penalties where no law has been violated or any duty neglected." In Bielenberg v. R. R. Co., 2 L. R. A., 813, it was held that a Montana statute making every railroad corporation liable to the owner for damages sustained by injuring or killing an animal by running trains, is unconstitutional as attempting to create the liability without reference to any violation of law or omission of duty. It was held invalid as depriving the defend- ant company of any defense, and as creating a con- clusive presumption. In Wadsworth v. Union Pacific Co., 18 Colo., 600, S. C., 23, L. E. A., 812, a like statute fixing the lia- bility of the carrier was held unconstitutional because under it a railway company might be denied "equal protection of the laws" and deprived of its property ' l without due process of law. ' ' To the same effect see : Jensen v. U. P. R. R., 4 L. R. A., 724. The 14th Amendment to the Constitution of the United States in no way restricts the exercise of Fed- eral powers, it being a limitation on the States. It provides that no State "shall deprive any person of life, liberty or property without due process of law," etc. The courts have held that corporations are "per- sons" within the meaning of that clause. Santa Clara Co. v. So. Pac. R. R. Co., 118 U. S., 394. Smith v. Ames, 169 U. S., 466. The 5th Amendment to the Constitution provides, among other things : 362 "Nor shall any person * * be deprived of life, liberty or property, without due process of law," etc. The 14th Amendment is a limitation on the power of the States, but is not a limitation on the power of Congress. On the other hand, the 5th Amendment, like the other of the first ten amendments, does not apply to the States, but affects only the United States collect- ively. Barron v. Baltimore, 7 Pet., 243. Withers v. Buckley, 20 How., 84. Tuntchell v. Commonwealth, 7 Wall., 321. The question of whether or not a corporation is a "person" within the meaning of the 5th Amendment which limits the powers of Congress, has not, so far as I can find, been passed upon by the courts. As I have stated, the courts have held that corporations are "persons" within the meaning of the 14th Amend- ment, which is a limitation only on the powers of the States. The wording of both amendments is sub- stantially the same. I am of the opinion that a cor- poration would probably be protected by the 5th Amendment and that the courts would probably hold that Congress has no power to deprive it of its prop- erty without "due process of law." Again Congress is bound to the reasonable exercise of its powers, though under this power (to regulate commerce) a total embargo laid on foreign commerce was upheld in Gibbons v. Ogden, 9 Wheat., 191. A somewhat different rule applies to interstate com- merce. Such commerce is of an essentially different nature from foreign commerce, and over interstate commerce Congress has no such latitude. "The right to engage in such commerce is one of the rights reserved to the people, and one of the privileges and immunities of citizenship. Con- gress can not lay an embargo upon interstate commerce. * * * The purpose with which the grant was made to secure freedom of transpor- tation throughout the country unembarrassed by 363 differing regulations at State lines measured not only the power of the States but also the power of Congress. (Prentice & Egan, Commerce Clause, p. 305.)" In Groves v. Slaughter, 15 Pet., 449, 506, the Su- preme Court said: * ' The law must be equal and general in its pro- visions. Congress cannot pass a non-intercourse law as among the several States; nor impose an embargo that shall affect only a part of them. ' ' The bill, should it become law, may be challenged in the courts as to Section 4. That section is, in my opinion, objectionable in that it precludes any defense under any possible kind of circumstances. Federal legislation must find its warrant in the rea- sonable exercise of the express or implied powers con- ferred on the general Government by the States, in the Constitution. In Monongahela Nav. Co. v. United States, 148 U. S., 312, 324, the Supreme Court said : "In the case of Sinnickson v. Johnson, 17 N. J. L. (2 Harr.), 129, 145, cited in the case of Pum- pelly v. Green Bay Co., 13 Wall., 166, 178, it was said that 'this power to take private property reaches back of all constitutional provisions ; and it seems to have been considered a settled principle of universal law that the right to compensation is an incident to the exercise of that power ; that the one is so inseparably connected with the other that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle. ' And in Gardner v. Newburgh, 2 Johns., ch. 162, Chancellor Kent affirms sub- stantially the same doctrine. And in this there is a natural equity which commends it to every one. It in no wise detracts from the power of the public to take whatever may be necessary for its uses; while on the other hand it prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equiva- lent shall be returned to him. But we need not have recourse to this natural equity, nor is it necessary to look through the Constitution to the affirmations lying behind it in the Declaration of Independence, for in this fifth amendment there is stated the exact limitation on the power of the Government to take private prop- erty for public uses." The courts have never passed on the identical prin- ciple involved, but I incline to the opinion that Section 4 of this proposed act cannot be justified as a reasona- ble exercise of the power "to regulate interstate com- merce" and that Congress lacks the power to deprive the carrier absolutely and unconditionally of any de- fense. Such a deprivation is contrary to natural equity. In our acceptance of the legal theory that corporations have relative rights only, and share not at all in the absolute rights of natural persons, we must not, in the fiction of artificial personality, entirely lose sight of the fact that they are made up of natural persons whose rights are the real rights in question. The Supreme Court has said in Ry. Co. v. Ellis, 165 U. S., 150, 154, in speaking of corporations as "per- sons" under the 14th Amendment: "The rights and securities guaranteed to per- sons by that instrument cannot be disregarded in respect to these artificial entities called corpora- tions any more than they can be in respect to the individuals who are the equitable owners of the property belonging to such corporations. A State has no more power to deny to corporations the equal protection of the law than it has to individual citizens. ' ' I express no opinion on the economical or policy view of the proposed legislation. Whether a fine of $10 per car per day and a period of five days allowed the railroad, are sufficiently stringent is a question I do not feel called upon to review. 365 WHETHER THE CHICAGO TELEPHONE COMPANY CAN BE COM- PELLED TO ITEMIZE ITS BILL FOR MEASURED SERVICE. (E. J. Cady & Co., March 19, 1904.) "I would like to get reliable information if pos- sible on the following points : We have in our office a switchboard, and besides paying the telephone company an agreed on figure for the use of the trunk lines, of which we have two, we also pay them 3 cents for each message going out from our office. We have considerable trouble with the telephone company in the matter of their charges. Their bills come to us for 'so many' calls during the previous month, but we have no means of knowing whether they are charg- ing us for the connections we ask for and get, or whether they have us charged with the services they render to us and other people also. As, for instance, we don't think that there is ever a day in the course of business but what we get from ten to a dozen wrong connections, and from the size of the bills we get from the telephone company it appears to us that we are charged with not only all the actual service we get, but also all their mis- takes and part of the service bill that should be rendered somebody else. We have requested them several times to send us an itemized bill showing the customer's number that they are charging us with, for certainly if they can do that on the long distance service they render us they can do it on the local city service they render us. It does seem as though we are within the limits of our rights in demanding that they furnish us an itemized bill. There is noth- ing unjust in it and their claim that it is burden- some certainly does not apply to that service any more than it does to any of the other clerical work that they have to perform, for which the Lord knows they are well enough paid. I would be glad to hear from you at an early date as to 366 whether this is a subject that has ever come up before your body before, and what the actual status of the matter is, whether we are right or wrong in our position." . There is no way of compelling the Telephone Com- pany to itemize its bills. The only course E. J. Cady & Co. can pursue is to keep a record of the number of calls for which they are obligated to pay tolls. If the telephone company then renders an incorrect state- ment, the company can refuse to pay, tendering the correct amount and asking for an itemized statement. If the telephone company institutes suit, an itemized statement can then be demanded. If an attempt is made to discontinue the telephone service, resort may be had to injunction to restrain the telephone company from discontinuing the service. AS TO THE PLACE WHERE A CARRIER MUST MAKE DELIVERY TO THE CONSIGNEE. (Block-Pollak Iron Company, March 19, 1904.) "If possible, we would like to get the opinion of your general counsel on the question of delivery of merchandise shipped in carload lots to the city of Chicago, where the f. o. b. point designated in the contract merely states Chicago. Does this designation leave the point as to what place in Chicago the material is to be delivered, to be de- cided by the shippers or the consignees? As an instance of what we wish the opinion on, we would state that if material is purchased to be shipped by a railroad company that encircles the city, would the delivery in any point on that line inside the city limits complete the contract as to the delivery, or could the consignees demand de- livery at a stipulated point on that road? An opinion on this would be greatly appreciated by us as well as others who have had this question come up before them." The question must be determined not by the con- 367 tract between the consignor and the consignee but by reference to the contract between the carrier and the shipper, and the usage and customs of the place where the delivery is made which enter into and form part of the contract. If the carrier makes an express contract to deliver to the consignee personally or to a particular ware- house or factory it is bound by such a contract and must make the delivery in accordance with the con- tract. Cahn v. M. C. R. R. Co., 71 111., 96. At common law it was the duty of a carrier to make a personal delivery to the consignee, but this rule has been relaxed in regard to railways from necessity. The liability of a carrier is in most cases discharged by a delivery at the warehouse, depot or team track provided by the carrier for the storage of the goods. This rule is based upon the ground that a railway has no means of delivery beyond its own lines. If the carrier is able to make a delivery to the consignee by means of a spur or switch-track, the necessity of the relaxation of the rule requiring personal delivery no longer exists and in my opinion the carrier is bound to make a personal delivery. Vincent v. C. & A. Ed. Co., 49 111., 33. 5 Ency. of Law (2nd Ed.), p. 216. Coe v. R. R. Co., 3 Fed. Rep., 775. The carrier can not, however, be compelled to deliver freight beyond its own termini. The place of business of the consignee must be upon the line of the railroad company. Where a side-track is erected and owned by the com- pany or consignee it is considered part of the line of the railroad and the company is obligated to make a personal delivery to the consignee. But where the railroad company can only use the side-track by per- mission of one other than the consignee, it need not make a personal delivery, as such side-track is not a part of its line. To constitute the side-track part of the line, the railroad company must have the right to use it, and it can not be compelled to obtain the right, 368 nor is it material that the railroad company has deliv- ered freight over such side-track by virtue of special a 2*r eements People v. C. & A. Rd. Co., 55 111., 95. Vincent v. C. & A. Rd. Co., 49 111., 33. Railway Co. v. People, 56 111., 365. Hoyt v. C., B. & Q. Rd. Co., 93 111., 601. C. & A. Rd. Co. v. Suffern, 129 111., 274. R. R. Co. v. Elevator Co., 153 111., 70. The liability of the carrier to make a personal de- livery may also be established by usage or custom. Where the goods are of such a nature that the carrier is not required, in the usual course of business, to remove the freight from the car, as in the case of grain in bulk, coal, lumber and the like, the carrier discharges his duty by delivering the car in a safe and convenient position for unloading at the elevator, warehouse or other place designated in the contract or required in the usual course of business, or, if no place is thus designated or required, on its side-track or team-track, in the usual and customary place for unloading by con- signees. Gregg v. Illinois Cen. R. R., 147 111., 550. Schumacher v. C. & N. W. R. R. Co., 207 111., 199. If, therefore, it has been the well established and generally well known custom and the usual course of business for the carrier to make a personal delivery to the consignee where such consignee can be reached over the line of the railroad, such custom forms a part of the contract of carriage, and the railroad company is obligated to make a personal delivery. But to have that effect the custom must be so uniformly acquiesced in by length of time that it must be considered to have entered the minds of the parties, and constituted a part of the contract. Cahn v. M. C. R. R. Co., 71 111., 96. It is the duty of a carrier to serve all its patrons who are similarly situated, alike and without unjust dis- crimination. If, then, it makes a personal delivery to 369 one consignee and denies it to another similarly situ- ated, it is guilty of unjust discrimination. The carrier does not, therefore, discharge its duty by a delivery on any part of its line. It must make a personal delivery where it is practicable, otherwise it must deliver in the usual and customary place. What constitutes a delivery in each case depends upon the contract of carriage, the custom and usages of the place, and the location of the consignee. I have outlined above the principles of law governing the case. THE LIABILITY OF A COMMON CARRIER AS AN INSURER AND WHEN SUCH LIABILITY CEASES UNDER THE LAW OF ILLI- NOIS, ALSO WHETHER A CARRIER BY WATER MUST GIVE NOTICE OF THE ARRIVAL OF GOODS. (Reid, Murdoch & Co., March 21, 1904.) ''Will you please ascertain for us from the at- torney of your association at what point the lia- bility of a railroad or lake transportation company ceases and that of the consignee begins for fire? In other words, when we receive notice from the carrier of arrival of goods, is it necessary for us to cover the same with insurance in order to have protection, or can we look to the carrier for indem- nity in case the goods burn ? For how long a time are the carriers liable after arrival of goods in Chicago! In case we order goods switched to some warehouse or track, when does our liability commence 1 ? We should be pleased to have the information as fully as possible, both in cases where goods are consigned to shipper's order, and when consigned direct to us. Also when freight is prepaid, as well as when freight is to be paid by consignee, if these conditions affect the liability." A common carrier is an insurer of the goods and is liable for the loss of such goods in all cases except where the loss is occasioned by the act of God or the public enemy. A loss by fire is not an act of God. 370 Under the law of Illinois the liability as a common carrier ceases after the goods have been unloaded from the car at the place of destination and have been placed in a safe and secure warehouse ; after the goods have been thus placed in a warehouse, the liability thereafter is that of a warehouseman. A warehouse- man is bound only to use reasonable care and dili- gence for the preservation of the property, and is not an insurer thereof against loss by fire, if reason- able care and diligence has been used in the selection and care of the warehouse. There is no fixed time during which the carrier remains liable as an insurer after the arrival of the goods. His liability as an insurer continues until the goods have been delivered to the consignee or have been put, as aforesaid, by the carrier into a warehouse. Gregg v. I. C. R. R. Co., 147 111., 550. Richards v. R. R. Co., 20 111., 405. R. R. Co. v. Scott, 42 111., 132. Transportation Co. v. Hallock, 64 111., 284. Cahn v. R. R. Co ., 71 111., 96. In case the cars are switched to the warehouse or track of the consignee, the liability as carrier continues until the delivery of the car to such warehouse or upon the track of the consignee. Whether or not the goods are consigned to the order of the consignee or the consignor, or whether the freight is prepaid or otherwise, does not affect the liability. As I stated in my opinion rendered the Association December 30, 1902, a common carrier is under no ex- press obligation to give notice of the arrival of freight. It is the duty of the consignee to receive the goods on their arrival at the destination. The rule as to notice may be changed by a well established custom on the part of the carrier to give such notice, and where such custom exists, notice must be given. The liability of the carrier ceases and that of the warehouseman begins upon the unloading of the goods and placing the same in a warehouse as aforesaid, whether notice has or has not been given to the consignee. 371 Richards v. R. R. Co., 20 111., 404. Hutcliinson on Carriers, Sees. 367, 370. The rule as to the necessity of giving notice does not apply to a carrier by water. A carrier by water is under obligation to give notice of the arrival of the goods and its liability as a carrier continues until the giving of such notice, and the expiration of a reason- able time to take away the goods. What is a rea- sonable time depends upon the circumstances of each case. The necessity of a carrier by water giving no- tice may be waived by contract, by the course of deal- ings between the parties, or by the custom of the port. Hutchinson on Carriers, Sees. 359, et seq. I. C. R. R. Co. v. Carter, 62 111. App., 618. Crawford v. Clark, 15 111., 561. NOTE: See opinion of Nov. 26, 1907, for Emerson Mfg. Co. as to when the liability of a carrier ceases upon the arrival of goods at desti- nation under the laws of all the state. Ed. AS TO THE EFFECT OF SENDING A CHECK IN FULL SETTLE- MENT OF AN ACCOUNT WHERE THE AMOUNT OF THE CHECK IS LESS THAN THE AMOUNT DUE. (Squire Dingee Company, March 31, 1904.) ' ' If consistent, will you kindly secure an opinion on this matter, which we hope will be of interest to some of the other members of the Association, as well as ourselves. When a firm tenders or mails a check, or cur- rency in settlement of a bill or an account, and the check or currency is not for the full amount of the account, is it necessary to decline to accept, or to return this tender, in order to collect or force pay- ment of the balance of the account ? We do not refer to payment for certain items on the account which are made in full, or for pay- ments made with the understanding that it is only part payment of the whole, but with the balance to be paid for and adjusted later, but for payments when tendered as in full of. account, or when de- ductions are made arbitrarily, or otherwise, or 372 made in error, for instance, for excess freight, discount after the time limit, breakage, etc., or the deduction of an amount which has been in dispute, but not yet adjusted. Does it make any difference if the check or re- mittance sheet is marked 'in full of account,' or whether the tender threatens to make further de- ductions or refuses to pay at all if same is not accepted, or recipient by declining to accept the tender will get any of the account without long delay or legal proceedings, or when it is neces- sary, in turn, to secure the money involved to pay in whole or part, for the manufacture or purchase of the goods furnished." The payment of a part of a fixed and certain de- mand which is due and not in dispute, is not a satis- faction of the whole debt, even where the creditor agrees to receive a part for the whole, and gives a re- ceipt for the whole demand. Ostrander v. Scott, 161 111., 339, and cases cited. This doctrine rests upon the ground that the agree- ment for the discharge of the entire debt is without consideration and, therefore, not binding. But the rule has no application to the honest settle- ment of unliquidated and disputed demands. If there is a bona fide dispute and a tender is made by the debtor with the condition that the amount of the ten- der is to be accepted in full satisfaction of the entire claim, the tender must be accepted or rejected in toto. The creditor can not accept the tender and apply it on account and charge the debtor with the difference. He must accept it in full settlement or return the re- mittance. An acceptance of a check sent in full settle- ment where there is a bona fide dispute, is an accept- ance of the conditions under which the check was sent ; the tender and the condition attached to it cannot be dissevered. Under such circumstances the assent of the creditor to the terms proposed by the debtor will be implied, and no words of protest can effect the con- clusiveness of the settlement. 373 Ostrander v. Scott, 161 111., 339. Lapp v. Smith, 183 111., 179. Bingham v. Browning, 197 111., 122. If a check is received, therefore, in settlement of a bill it may be retained and applied on account only where there is not a bona fide dispute as to the amount due, and such amount is unliquidated. In remitting it is not indispensable that it be stated that the remittance is in "full of account." There must, however, be a sufficient notification to the cred- itor that the debtor intends the remittance to be so received. THE PEOPOSED IOWA PUKE FOOD LAW, KELATIVE TO THE ADULTERATION, MISBRANDING AND IMITATION OF GOODS, IS INVALID TO THE EXTENT THAT IT AFFECTS GOODS IM- PORTED FROM OTHER STATES. (Anonymous. March 31, 1904.) "There has come to our attention a bill in the Iowa legislature, having for its object the regula- tion of the sale of food products, a copy of which we send herewith. While we are in favor of any and all legislation which will prevent improper adulteration of food products, we fear if the above mentioned bill is enacted into a law, it may put unnecessary bur- dens on reputable manufacturers and distributors of food products, and therefore would like the opinion of the General Counsel of the Association as to whether the proposed law, if enacted, would be binding in all particulars. We would direct attention particularly to that portion of section eight, which provides in sub- stance, that if a local (Iowa) dealer hold a guar- anty of purity from a manufacturer, etc., resid- ing in Iowa, it exempts such dealer from the effect of the law; a guaranty from a manufacturer re- siding outside of Iowa not giving him the same immunity, ' ' The proposed law is entitled : 374 11 An Act to prevent the adulteration, misbrand- ing and imitation of goods ; to change the name of the office of 'State Dairy Commissioner' to that of 'State Food and Dairy Commissioner,' and to define his duties." The first five sections of the law relating to the duties of the commissioner, chemist, etc., are not ma- terial here. Section 6 provides : "That no person by himself, his servant or agent, or as the servant or agent, of any other person shall manufacture or introduce into the State, or solicit or take orders for delivery or sell, exchange, deliver or have in his possession with the intent to sell, exchange or expose or offer for sale or exchange, any article of food which is adulterated or misbranded, within the meaning of this act." The act further provides (Section 7) that the terni misbranded" shall apply to: * ' All articles of food, or articles which enter into the composition of food, the package or label of which shall bear any statement regarding the in- gredients or substance contained in such article, which statement shall be false or misleading in any particular, and to any food or product which is falsely branded as to the State or county in which it is manufactured or produced, or shall bear any false statement regarding the weight or quantity contained in the package." Section 8 defines "adulteration." Clause 2, Subdi- vision 8, of Section 8, provides: "That no dealer shall be convicted under the provisions of this act when he is able to prove a written guaranty of purity in a form approved by the commissioner as published in his rules and regulations, signed by the wholesaler, salesman, jobber, manufacturer or other person from whom he purchased such articles; provided, also, that said guarantor or guarantors reside in this State. Said guaranty shall contain the full name and ad- < i 375 dress of the party or parties making the sale to the dealer, and said party or parties shall be amen- able to the prosecutions, fines and other penalties, which would attach but for said guaranty, to the retailer under the provisions of this act." The remaining sections of the act relate to proced- ure, penalties, etc. It is within the power of a State, in the interest of the public health, to require an article to be sold for what it really is, and to protect the public from impo- sition in buying one article of food in the belief that it is another. It is upon this foundation that laws prohibiting adulteration and misbranding rest for their validity. It is, however, beyond the power of the State to prohibit the introduction and sale, in original packages, of a pure article, sold upon its merits. The present statute does not undertake to prohibit the sale of a pure article of food, but it is directed solely against adulteration and deceit, for the purpose of pre- venting frauds upon the public. In its general scope, therefore, it is a valid enactment. Plumley v. Mass., 155 U. S., 461. Arbuckle v. Blackburn, 113 Fed., 616. Such statutes, however, must not discriminate against the products of other States. The Commerce Clause of the Constitution protects property imported from other States against discrimination by reason of its foreign origin, even after it has become incor- porated in the general mass of property in the State. In Walling v. Michigan, 116 IT. S., 446, a statute of Michigan imposed a tax upon persons who, not having their principal place of business in the State, engaged in the business of selling intoxicating liquors. The court said: "It certainly does impose a tax or duty on per- sons who, not having their principal place of busi- ness within the State, engage in the business of selling, or of soliciting the sale of, certain de- scribed liquors, to be shipped into the State. If this is not a discriminating tax leveled against persons for selling goods brought into the State 376 from other States or countries, it is difficult to conceive of a tax that would be discriminating. It is clearly within the decision of Welton v. Mis- souri, 91 U. S., 275, where we held a law of the State of Missouri to be void which laid a peddler's license tax upon persons going from place to place to sell patent and other medicines, goods, wares, or merchandise, not the growth, product, or manufacture of Missouri. The same principle is announced in Hinson v. Lott, 8 Wall, 148 ; Ward v. Maryland, 12 Wall., 418; Guy v. Baltimore, 100 U. S., 434, 438 ; County of Mobile v. Kimball, 102 U. S., 691, 697 ; Webber v. Virginia, 103 U. S., 344. A discriminating tax imposed by a State operat- ing to the disadvantage of the products of other states when introduced into the first mentioned State, is, in effect, a regulation in restraint of commerce among the States, and as such is a. usurpation of the power conferred by the Consti- tution upon the Congress of the United States." In Minnesota v. Barber, 136 U. S., 313, a statute of Minnesota provided for an inspection before slaught- ering of cattle, etc., before sales of fresh beef, etc., could be made in Minnesota. The court said: "As the inspection must take place within the twenty-four hours immediately before slaughter- ing, the act, by its necessary operation, excludes from the Minnesota market practically all fresh beef, veal, mutton, lamb or pork in whatever form, and although entirely sound, healthy and fit for human food taken from animals slaugh- tered in other States; and directly tends to re- strict the slaughtering of animals, whose meat is to be sold in Minnesota for human food, to those engaged in such business in that State." And again : "If the object of the statute had been to deny altogether to the citizens of other States the privi- lege of selling, within the limits of Minnesota, for human food, any fresh beef, veal, mutton, lamb or pork, from animals slaughtered outside of that State, and to compel the people of Minnesota, wishing to buy such meats, either to purchase those taken from animals inspected and slaught- ered in the State, or to incur the cost of purchas- ing them, when desired for their own domestic use, at points beyond the State, that object is at- tained by the act in question. Our duty to main- tain the Constitution will not permit us to shut our eyes to these obvious and necessary results of the Minnesota statute. If this legislation does not make such discrimination against the products and business of other States in favor of the prod- ucts and business of Minnesota as interferes with and burdens commerce among the several States, it would be difficult to enact legislation that would have that result." In Brimmer v. Rebman, 138 U. S., 78, a statute of Virginia prohibited the sale of beef, etc., from animals slaughtered one hundred miles or more from the place of sale, unless previously inspected by local inspec- tors. The court said : 1 ' But it may not, under the guise of exerting its police powers, or of enacting inspection laws, make discriminations against the products and indus- tries of some of the States in favor of the products and industries of its own or other States. The owner of the meats here in question, although they were from animals slaughtered in Illinois, had the right under the Constitution, to compete in the markets of Virginia upon terms of equality with the owners of like meats, from animals slaughtered in Virginia or elsewhere within one hundred miles from the place of sale. Any local regulation which, in terms or by its necessary op- eration, denies this equality, in the markets of a State is, when applied to the people and products or industries of other States, a direct burden upon commerce among the States, and, therefore, void." In VoigU v. Wright, 141 U. S., 62, a statute of Vir- ginia provided that all flour brought into the State and 378 offered for sale, shall have the Virginia inspection marked thereon. The court said : ' ' The law in question is a discriminating law, and requires the inspection of flour brought from other States, when such inspection is not required for flour manufactured in Virginia." Does Section 8, above quoted, bring the present law within the doctrine of these cases? The law exempts a dealer from prosecution if he is able to prove a written guaranty of purity, signed by a wholesaler, salesman, jobber, manufacturer, or other person from whom the goods are purchased, provided the guarantor resides in the State. The retailer, if he wishes to avoid the penalties of the law, must purchase his goods in Iowa. A guaranty of a non-resident avails him nothing. If the law in question directly discriminated against the non-resident, the law would be invalid. The pres- ent law effects the same result. The non-resident is reached through the medium of the retailer to whom he sells his goods. The law discriminates between those retailers who purchase the products of the State of Iowa and those who purchase the products of other States. I am inclined to the opinion, therefore, that to the extent that the law in question affects goods imported from other States, it is not a valid exercise of the police power of the State and is unconstitutional and void. THE SAME RULES OF EVIDENCE APPLY TO THE ADMISSION OF A CAEBON COPY OF A LETTEE AS TO A LETTEE PEESS COPY. (J. T. Eyerson & Son, March 31, 1904.) "In making a little change in our system, we desire to do away with the use of the ordinary letter copy book, substituting therefor carbon copies of all correspondence, which would remain in our files for future reference, but in this con- nection the question arises that in case we should get into court and have occasion to prove cor- 379 respondence, could these carbon copies be used in evidence in the same manner and with the same effect as the letter press copy? The letter press copy would reproduce the signature as well as the letter, while these carbon copies in practice are not signed. If that point is material these carbon copies might be signed with indelible pen- cil at the same time the original letter was signed. Will you kindly refer this to your attorney for his opinion and very much oblige. ' ' The same rules of evidence apply to the admission of a carbon copy of a letter as to a letter-press copy. There is no reason why they are not admissible, pro- vided the necessary connecting proof as to mailing, correctness, etc., is made. The proof would be the same as in the case of a letter-press copy. CONSTITUTIONALITY OF TRUCK LAW; COURT DECISIONS AF- FIRMING FORMER OPINIONS OF MAY 28, 1903, AND MAY 29, 1903. On May 28, 1903, I rendered to the Association an opinion as to the effect that Sections 3 and 4 of the Act of Illinois of May 28, 1901, known as the "Truck law," were unconstitutional and void. Those sections provided as follows: "SECTION 3. It shall be unlawful for any per- son, company, corporation or association employ- ing workmen in this State to make deduction from the wages of his, its or their workmen, except for lawful money, checks or drafts actually ad- vanced without discount, and except such sums as may be agreed upon between employer and em- ployee, which may be deducted for hospital or re- lief fund for sick or injured employees. SEC. 4. Any deductions made from the wages of any workman in this State, except as provided in section three (3) of this act, may be recovered in any appropriate action before any court of com- petent jurisdiction, together with such reasonable attorney's fees as the court in its discretion shall 380 think proper, and no offset or counterclaim of any kind shall be allowed in such action or proceed- ing." The Supreme Court of Illinois on February 17, 1904, in Kellyville Coal Co. v. Harrier, 207 111., 624, has de- clared these sections unconstitutional. It may also interest the members to know that the Supreme Court of Illinois affirmed the decision of the Appellate Court in the case of Norwaysz v. Thuringia Insurance Co. (204 111., 334), as anticipated in my opinion of May 29, 1903, to Selz, Schwab & Co. That case decided that a violation of the terms of a fire in- surance policy by a tenant of the insured keeping ben- zine, etc., on the premises without the knowledge of the landlord is a violation of the terms of the policy by the insured (landlord) and invalidates the policy. LIABILITY OF A TRAVELING SALESMAN FOR LOSS OF A HORSE HIRED FROM A LIVERY STABLE. (Beggs Manufacturing Company, March 31, 1904.) "We wish to obtain the opinion of your Mr. Mayer on the liability for the loss of a horse while in possession of one of our traveling salesmen in Arkansas. The facts as stated by him are : ' That he hired a team of horses from a livery at $2.50 per day and expenses (which meant that he) was to pay for the keeping of the horses while in his possession) and used them from Thursday un- til the following Saturday in making different points off the line of railroad and soliciting for the sale of our goods. He states that Saturday he left a given point at 7 o'clock A. M. and drove 10 miles, when he fed the horses and got dinner and drove to another point 10 miles from there, making 20 miles in all by 3 o'clock P. M. That the horse was all right after having been fed, but aTter having driven the last ten miles (which took from 12:20 until 3 o'clock) he took sick and died in about thirty minutes. ' 381 From the statement made by the salesman it would appear that the horse was not overdriven or improperly used in any way, but the livery man has made claim for $75, the value of the animal. The questions which we wish answered are : 1st: . Is there any liability on the part of our salesman for the loss of the horse provided he used ordinary care in driving the animal and in feeding, watering, etc., or does the fact that the horse died while in his possession make him lia- ble to the owner for its value, regardless of the care it received while in his hands? 2nd : If the horse was overdriven, or improperly fed or watered while in a heated condition, would this make him liable for its value, and if so, upon whom does the burden of proof rest, or what kind of evidence would be permitted to establish this? In other words, does the salesman require to prove that he did not abuse the horse, or is the owner required to prove that he did?" The question is not one of general interest to the members. The transaction constitutes a bailment for the mutual benefit of both parties. The bailee (the hirer) in such a case must exercise ordinary care in relation to the property hired. If the bailee (the sales- man) used ordinary care, there is no liability. If he did not use ordinary care, there is a liability. 3 Encycl. of Law (2nd Ed.), p. 746. The burden of proof in the present case is on the bailee. The bailor makes out a prima facie case by showing that the bailee failed to return the horse. The bailee must then explain the reason for this failure and show that he used ordinary care. If he does so show, that should end the matter. The question of what care the bailee used is one of fact, and juries (particularly in horse cases), who pass on the facts, frequently render surprising verdicts. 3 Encycl. of Law (2nd Ed.), 750, 751, and cases cited. 382 STATUS OF THE ANTI-TRUST LAWS OF ILLINOIS AND THE LITIGATION INVOLVING THE CONSTITUTIONALITY OF THE ILLINOIS ANTI-TEUST STATUTES. (Heath & Milligan Mfg. Co., April 1, 1904.) "It may be time to bring up the much agitated question of the Anti-Trust Law of the State of Illi- nois, or at least the portion that demands an affi- davit and $1.00 from every corporation doing business in the State, declaring that it is not in any way connected with a trust or combine. I believe the present status is that a test case was made and sent to the courts. The Circuit Court unanimously decided that the law was un- constitutional. It finally went to the Illinois Su- preme Court, and there the decision of the Circuit Court was reversed; the law was declared consti- tutional, but in the meantime, as I understand it, the decision of the Supreme Court of Illinois ad- mits as unconstitutional the provision of Section 1 of the Statute, passed in the amendment of 1897, but that portion of the law passed in 1891 and amended in 1893, not affected by the unconstitu- tional clause, are still in effect. If this is true, to use the words of the law in Section 1, 'any corporation organized in this or any other State or country for transacting or con- ducting any kind of business in this State, or any partnership, or individual, or other association of persons whatsoever, shall create, enter into, or be- come a party to any pool, trust, agreement, com- bination, confederation or understanding' (with anybody else whatsoever), ; to regulate or fix the price of any articles of merchandise or commodity * * * to fix or limit the amount or quantity of any article,' etc., shall be deemed guilty of con- spiracy to defraud. With the provision of 1897 eliminated, the coal, stock and agricultural people must come under the law, as well as all trade unions. 383 Is this a right interpretation? Is there any chance of the case being carried to the United States Supreme Court? If there is, why does not the Association have it done? If there is no chance of getting it into the Su- preme Court, then would it not be in order for the Association to turn their attention toward getting the repeal of this obnoxious law?" The understanding of the company as to the present status of the litigation is correct. The amendatory act of 1897 was held unconstitutional in People v. But- ler Street Foundry & Iron Co., 201 111., 236, leaving in force the original act of 1891, as amended by the act of 1893, which added two new sections, known as Sec- tions 7a and 7b. The exception as to agricultural products and live stock while in the hands of the producer or raiser was contained in an original Trust Act, passed in 1893, at the same session as the amendatory Sections 7a and 7b, above referred to. This law was declared uncon- stitutional by the United States Supreme Court in Connolly v. Union Sewer Pipe Co., 184 U. S., 540. The amendatory act of 1897, therefore, being out of the way, the act of 1891 applies to all persons, firms, and corporations who attempt "To regulate or fix the price of any article of merchandise or commodity." or who "fix or limit the amount or quantity of any article, commodity or merchandise, to be manufactured, mined, produced, or sold in this State." Whether labor unions are included, and whether labor can be considered as "an article of merchandise or commodity" or within the meaning of the words "manufactured, mined, produced or sold" is a ques- tion of grave doubt, and which I am now considering with reference to another inquiry. The case of People v. Butler Street Foundry & Iron Co. can not, in its present condition, be carried to the United States Supreme Court because there was no final judgment rendered in the Supreme Court of Illi- 384 nois. The court sent the case back to the Circuit Court for re-trial. On the present status, and until there has been a final adjudication by the United States Su- preme Court, I have advised that the affidavit be filed where the facts permit. NOTE: See also People v. RicJiards fy Kelly Mfg. Co., 1 111., C. C., 171. Ed. SUFFICIENCY OF NOTICE TO EMPLOYER OF AN ASSIGNMENT OF WAGES BY AN EMPLOYE. (Illinois Malleable Iron Company, April 8, 1904.) "Thank you for the copy of the opinion of Mr. Mayer in regard to assignment of wages not being valid as against an employer whose employ a man enters after the assignment has been made and without a previous contract. Suppose the assignment has been made after the man has entered your employ, and the loan man simply sends you a notice that he holds an assign- ment, but does not show the assignment to you are you then liable if you pay the man his wages without having seen the assignment! The men generally say they have made no as- signment, and it sometimes turns out they are wrong. Again, how is it if they have an assignment but refuse to take the trouble to send it to you? In the case we now have on hand we have written by registered post to the loan company, asking them to send us the assignment they claim to hold from the man in question. If they do not send it, are we compelled to hold back the man's wages, even supposing they have a valid assign- ment; in other words, do we have to accept their mere say-so I Or do we have to go to their office to satisfy ourselves whether they have an assign- ment or not ? ' ' All that is necessary to charge the employer, is for the holder of an assignment of wages to give notice of such assignment to the employer. It is not necessary 385 that the holder show the assignment. If, therefore, the employer pays the assigned wages after such notice and the assignment is valid, the employer will be held liable. The holder cannot be compelled to send a copy of the assignment to the employer. If the employer wishes to satisfy himself, as to the genuineness of the assignment, he can make a tender of the amount due, conditioned upon the holder furnishing evidence that he is entitled to receive it. This will constitute a valid tender and in case suit is brought against the employer will prevent the holder from recovering the costs. THE MEASURE OF DAMAGES UNDER THE LAW OF ILLINOIS FOR THE BREACH BY THE VENDEE OF A CONTRACT TO PUR- CHASE GOODS. (Marquette Cement Mfg. Co., April 9th, 1904.) "Early in 1903 we entered into several con- tracts in writing with customers of ours wherein we agreed to deliver them, and they agreed to purchase, specified amounts of cement at a fixed price. During the life of these contracts the mar- ket price declined materially, and the other parties to the contracts were unwilling to take the cement under their contracts. Kindly advise us what, if any, is the measure of damages which we may re- cover under these contracts. Where a vendee of goods, sold at a specific price, refuses to take and pay for the goods, when tendered the vendor has a choice of three remedies. First, the vendor may store the goods for the ven- dee, give notice that he has done so, and then recover the full contract price ; second, he may keep the goods, and recover the difference between the contract price and the market price of the goods at the time and place of delivery, or, third, he may sell the goods, to the best advantage, and recover of the vendee the loss, if the goods fail to bring the contract price. In the latter case, the vendor acts as the agent for the vendee he is held to the same degree of care, judg- 386 ment and fidelity that is imposed by the law upon an agent having goods in his possession with instructions to sell them to best advantage. See the following authorities: Bagley v. Findlay, 82 111., 524. Ames v. Moir, 130 111., 582. Roebling's Sons Co., 130 111., 660. Trunkey v. Hedstrom, 131 111., 204. v Neuberger v. Rountree, 18 111. App., 610. Norton v. Hummel, 22 111. App., 194. Aultman & Co. v. Hender&on, 32 111. App., 331. Kendall v. Young, 40 111. App., 391. Western Union Cold Storage Co. v. Winona Produce Co., 84 111. App., 678. In the case of contracts for the sale of articles to be manufactured, where the vendee repudiates the con- tract before the goods are manufactured, the actual damages suffered are the measure of recovery, viz., the difference between the cost of manufacture and the contract price, from which there must be a deduction for the less time employed and for the release from care, trouble, risk and liability attending a full execu- tion of the contract. Roehm v. Horts, 178 U. S., 1. Hinkley v. Pittsburgh Co., 121 U. S., 264. Rice v. Glass Co., 88 111. App., 407. LIABILITY OP A COEPOEATION FOR A NOTE OF A THIRD PER- SON WHICH IT HAD SOLD TO A BANK, GUARANTEEING THE PAYMENT THEREOF, WHEN THE MAKER PAYS THE NOTE TO A BANK TO WHICH IT HAD BEEN SENT FOR COLLECTION, AND THE LATTER DOES NOT REMIT TO THE BANK TO WHOM THE NOTE WAS SOLD. (Edward Hines Lumber Company, April 13, 1904.) From the original inquiry of November 25th and the further information conveyed in the Lumber Com- pany's letter of January 12th, which I received on April 2nd, the facts upon which my opinion is asked appear to be as follows: The Lumber Company held a note of John Smith's 387 for $5,000, payable at the First National Bank of Port Huron, Michigan. It does not appear to whose order this note was payable, but whether payable to the order of John Smith, the maker, or to that of the Lumber Company, it appears that the Lumber Company sold this note to the First National Bank of Chicago by in- dorsing it over to that bank. The Lumber Company is not a depositor at the First National Bank and it did not owe that bank any money, its only liability to the bank being that growing out of its endorsement of the note in question. The First National Bank of Chicago, when the note was discounted with it by the Lumber Company, paid to the Lumber Company the proceeds of the discount. The Lumber Company did not have an account at the First National Bank of Chicago, and the proceeds of the note were not credited to the Lumber Company, but were paid direct to it by the Chicago bank. The indorsement of the bank was a blank indorsement. Whether in law this indorsement is a guaranty or not depends very much upon the question to whom the note was made payable. If it was payable to the order of the Lumber Company and then its name put on the back of the note this, in the absence of a contract to the contrary, would constitute an ordinary indorse- ment, but whether the indorsement is purely an in- dorsement or guaranty under the facts, in my opinion, does not affect the answer to the question submitted to me. The First National Bank of Chicago thus became the owner of the note. Thereafter, in due course, the Chicago Bank sent this note to the First National Bank of Port Huron for collection. It will be noticed that the First National Bank of Port Huron, to which the note was sent for collection, was the bank at which the note, by its terms, was payable. The Port Huron bank collected the note from the maker. It does not appear from the facts stated whether the Port Huron bank was the regular correspondent of the Chicago bank, or whether or not there was between the two banks what is known as a running account. 388 In other words, whether the Port Huron bank acted as correspondents ordinarily do make collections and return the proceeds thereof from time to time, or credited the same as is done when ordinary deposits are made. As I understand it, the Lumber Company does not inquire whether there was any negligence on the part of the Chicago bank in sending the note for collection to the Port Huron bank, at which it was payable. It does not appear how John Smith, the maker of the note, paid it, whether by drawing a check on the Port Huron bank, where it was payable, or in some other way. Upon the facts, as they are stated to me, I am clearly of the opinion that the Chicago bank became the owner of the note and that when it sent the note to Port Huron for collection the Port Huron bank acted for the Chicago bank, and that when the maker of the note paid it to the Port Huron bank he, the maker, dis- charged his obligation and his liability on the note ceased. The Lumber Company, whether as indorser or guarantor, had no greater liability in law than an undertaking that the maker would pay the note. This the maker did. Payment to the Port Huron bank, which was acting for the Chicago bank, was, so far as the Lumber Company is concerned and so far as the maker of the note is concerned, payment of the note and a discharge of the liability of both the maker and of the Lumber Company. Upon the facts submitted to me I can see no legal ground to sustain the alleged contention of the Chicago bank. THE RIGHT OF THE EMPLOYEE TO SPECIFY THE TIME OF DAY FOB EMPLOYES TO VOTE UNDEE THE LAW OF ILLI- NOIS. (Whiting Foundry Equipment Company, May 18, 1904.) ''We quote from paragraph 189, Sec. 25, Chap. 46, Starr & Curtis ' Revised Statutes : 389 'The employer may specify the hours during which said employee may absent himself as afore- said.' Can the noon hour be specified as one of the two hours to which the employee is entitled under the law? In other words, would the em- ployer be complying with the law by allowing his employees from 11 a. m. to 1 p. m. or from 12 m. to 2 p. m. ? If no opinion has been rendered by your attorney on this point, will you kindly ask him for same?" The employer may undoubtedly specify the hours during which the employee may absent himself. The law, however, provides that the employe shall be en- titled to absent himself "from any services or employ- ment in which he is then engaged or employed. ' ' It is thus apparent that the legislature intended that the employee should be entitled to two hours freedom from services or employment. If, therefore, the em- ployer specifies the hours in question to be from 1 to 3 p. m., for instance, and the usual lunch hour is in- cluded in these hours, this, in my opinion, would prob- ably not be a compliance with the statute as it would not constitute "two hours" absence from "services or employment. ' ' I do not pass on the constitutionality of the law, particularly if it be attempted to apply it to those who work by the "piece" or "hour." AS TO TAKING PEOPEETY TO WIDEN A STEEET UNDER CON- DEMNATION PROCEEDINGS, THE MEASURE OF DAMAGES THEEEFORE AND THE EFFECT UPON THE DURATION OF LEASES ON PROPERTY TAKEN. (Thompson & Taylor Spice Company, May 18, 1904.) "The talk of widening Michigan Ave., by cut- ting off forty feet of the buildings on the east side of the street, between Randolph St. and the River, suggests some legal questions. In the event this plan goes beyond the talking stage, these ques- tions would greatly interest occupants and prop- erty holders on this block. We would like to know 390 something of the modus operandi of condemning the property and how people situated as we are would go about protecting themselves against great indirect loss, at least ; for the installation of a new plant and getting to it requires much time and money. The claim that the value of the prop- erty left would be enhanced sufficient to compen- sate for all or part of the loss due to the dimin- ished size, is a speculation we would rather not in- dulge in. Our building is modern, of mill con- struction, exactly suited to our purpose and is ad- vantageously located. It contains a large amount of machinery which could not be moved except at a great expense, installation and adaptation to our needs constituting a large part of its cost. We occupy leased ground, the lease having some eighty-seven years to run. The size of our lot is about 90x130. With 40 ft. cut off the front of the building, it would be useless for our purpose. We are also interested to know what effect this would have on our lease. Kindly submit this to Mr. Mayer with a view to getting such an opinion as this statement of facts warrants. ' ' The property in question can only be taken against the will of the owner or occupant by the institution of condemnation proceedings. The question of the value of the amount of damages will then be a question for a jury to determine. The measure of damages in general for property actually taken is the fair cash market value of the property. For the property damaged, the measure of damage in general is the difference in the value of the property before and after the construction of the im- provement. Special benefits to the property not taken must be considered in estimating the damage to the property not taken. In other words, the test whether or not property not taken is damaged is the effect of the improvement upon the value of the property not taken. These are questions of fact to be determined upon evidence of experts which each side produces. 391 Whether or not taking of leased property operates as an extinguishment of the lease depends, in the ab- sence of a special agreement between lessor or lessee, upon the extent of the taking, if the taking is such as to substantially destroy or make useless the part not taken. Where a portion only of the leased premises are taken and a part remains which is susceptible of occupation under the lease, the covenants of the lease are not abrogated and the tenant is liable for the rent. The tenant is not liable to any apportionment or abate- ment of the rent for the land taken, but is bound to pay rent for the whole of the premises demised, and must look to the public or party condemning for his compensation, unless there is an agreement to the con- trary in the lease. Corrigan v. City, 144 111., 537. Stubbings v. Evanstftn, 136 111., 37. If the whole of the leased premises are taken, there is no liability for rent. (See cases supra,.} AS TO THE VALIDITY OF CONTRACTS ENTERED INTO ON SUN- DAY UNDER THE LAW OF ILLINOIS. (Monmouth Pottery Co., May 18, 1904.) "We beg to refer to you a question which comes up with us today in the course of business, and would ask that you please have your counsel ad- vise us whether or not an insurance policy dated on Sunday is valid and not liable to be questioned on this point in case of loss. We are advised that there are some kinds of papers which are not legally drawn on Sunday and would ask that you kindly advise us regarding whether or not it ad- mits controversy on an insurance policy." Such a contract was valid at a common law, and is valid in Illinois unless positively prohibited by statu- tory enactment. "Sections 261 and 262 of the Criminal Code provide : 261 : Whoever disturbs the peace and good or- 392 der of society by labor (works of necessity and charity excepted) or by any amusement or di- version on Sunday, shall be fined not exceeding $25. This section shall not be construed to pre- vent watermen and railroad companies from land- ing their passengers, or watermen from loading or unloading their cargoes, or ferrymen from car- rying over the water travelers and persons mov- ing their families, on the first day of the week, nor to prevent the due exercise of the rights of conscience by whomever thinks proper to keep an- other day as a Sabbath. 262 : Whoever shall be guilty of any noise, riot or amusement on the first day of the week, called Sunday, whereby the peace of any private family may be disturbed, shall be fined not exceeding $25." These are the only statutory provisions in Illinois bearing upon the subject. In Richmond v. Moore, 107 111., 429, it was held that the word "Labor" as used in the above statute, did not include business, and that a business contract did not come within the condemnation of the statute. To the same effect see : Eden v. People, 161 111., 296. Collins v. Stephens, 189 111., 200. I am of the opinion, therefore, that the policy in question is valid and enforceable. AS TO WHAT CONSTITUTES A COMPOSITION WITH CREDITORS AND THE EFFECT THEREOF. (Illinois Sewing Machine Co., May 18, 1904.) "Have read with much interest the opinion of Mr. Levy Mayer, counsel general, as to the effect of sending a check in full settlement of account, where the amount of the check is less than the amount due. This brings up another question which we feel sure will be of general interest; in case a firm 393 [ is about to take advantage of the bankruptcy act, or for any reason or other they offer a general settlement to all of their creditors of so many cents on the dollar, same to be in full settlement of all amounts due, in case the amount is not in dispute, and their offer of settlement is accepted and receipt given in full of account is there no further recourse? Does that finally settle the matter, or is there still a lawful claim for the bal- ance of the debt T ' If two or more creditors agree with the debtor to accept a sum less than is due them, this constitutes a composition. This is a new agreement not only be- tween the debtor and the creditors, who enter into it, but also an agreement of those creditors among them- selves, each with the others. In order to constitute a valid composition, the debtor must be in embarrassed circumstances, although it is not necessary that he be actually insolvent. In addition to the ordinary mu- tuality necessary to every contract, a composition must contain the further element of mutuality among the creditors themselves, That is, it must be entered into by them in reliance upon their mutual concessions, and in furtherance of a common purpose to secure their claims by compromise and settlement. A series of separate and independent compromises with indi- vidual creditors, will not constitute a composition. But, if the common purpose is present, the fact that the agreements were made separately will not prevent the arrangement from being considered as a composition. While it is true that a debt cannot be satisfied by the payment of a less sum on account of the lack of con- sideration, a composition is an exception to this rule. The validity of a composition rests upon the mutual agreement of the creditors to forego their legal rights and accept what is offered for their common benefit. The promise of each is the consideration for that of the others. An executed composition supersedes the original cause of action and settles the claims and extinguishes the debts included in it, and the rights and remedies 394 of the parties depend thereafter on the new agree- ment. Gittfillan v. Farrington, 12 111. App., 101. National Time Recorder Co. v. Feypel, 93 111. App., 170. WHETHER A CORPORATION CAN LEGALLY HOLD REAL ESTATE. (111. Mfrs. Assn., May 18, 1904.) "In the course of conducting business we ac- quire more or less real estate situated in this and other states. It is our aim and desire to dis- pose of same without delay, but it quite frequently happens that it is not expedient to dispose of same, or if we should force it into the market, it would be at a great sacrifice, and we therefore have before us the subject of whether we can, as a corporation, or through a trustee, legally hold same and convey proper title. We believe other members of the Association must be interested in the question, and if you think it of general inter- est, will you kindly have same referred to the General Counsel for his opinion and views on the subject I ' ' A corporation of one state may acquire and hold real estate in a foreign state, provided, the exercise of this right is not inconsistent with the charter of the corporation or the laws of its creation, and is not forbidden by the laws or public policy of the foreign state. The question can only be specifically determined by reference to the company's charter and the laws of the particular state where the real estate in question is situated. I must, therefore, have more facts before I can answer the query definitely. Although a corporation is incapacitated from ac- quiring title to lands, a conveyance to it is not for that reason necessarily void. As a general rule, the conveyance is only voidable. In such a case it cannot be attacked collaterally in a suit between private par- 395 ties, but only in a direct proceeding by the state. This is only true, however, where the corporation is authorized to hold real estate for some purpose, or to a certain extent. If the corporation is absolutely prohibited from ac- quiring and holding any lands for any purpose, a con- veyance to it is void and will carry no title. AS TO WHAT ELECTIONS EMPLOYES ARE ENTITLED TO LEAVE OF ABSENCE TO VOTE UNDER THE LAW OF ILLINOIS. (Whiting Foundry Equipment Co., May 18, 1904.) "If you have had no opinion from Mr. Levy Mayer, will you kindly ask him what the term 'general election' means? In other words, are employes entitled to take time at employer's ex- pense for voting at any and all elections'? We should be pleased to hear from you on this point as early as possible. ' ' Section 25 of the Ballot Law of 1891 provides : "Any person entitled to vote at a general elec- tion in this state shall, on the day of such elec- tion, be entitled to absent himself from any serv- ices or employment in which he is then engaged or employed for a period of two hours between the time of opening and closing the polls, and such voter shall not because of so absenting him- self be liable to any penalty, nor shall any de- duction be made on account of such absence from Ms usual salary or wages; Provided, however, that application for such leave of absence shall be made prior to the day of election. The em- ployer may specify the hours during which said employe may absent himself as aforesaid. Any person or corporation who shall refuse to an em- ploye the privilege hereby conferred, or shall sub- ject an employe to a penalty or deduction of wages because of the exercise of such privilege, or who shall directly or indirectly violate the provisions of this section, shall be deemed guilty of a misde- 396 meaner and be fined in any sum not less than five dollars ($5) nor more than one hundred dollars ($100)." A "general election" is defined in Section 2 of the same law as follows : "The term 'general election' as used in this act, shall apply to any election held for the choice of a national, state, judicial, district or county officer, whether for the full term or for the filling of a vacancy. The term 'city election' shall apply to any municipal election held in the city, village or incorporated town." THE POWER OF THE STATE OP NEW JERSEY TO COMPEL FOR- EIGN CORPORATIONS TO PAY TAXES FOR DOING BUSINESS IN THAT STATE. (Crane Co., May 18, 1904.) "With this we enclose copy of new foreign cor- poration act of New Jersey, effective March 29th last, together with blank sent us by the state au- thorities to be filled out. You will notice from the foot note on the last mentioned paper that 'Business done in the State of New Jersey' is construed to mean 'Receipts derived from the sales of merchandise, etc., within the State of New Jersey. ' This company maintains branches in the cities of New York and Philadelphia, and has travel- ing representatives in the State of New Jersey soliciting orders, which are taken, however, sub- ject to the approval by the respective branch house managements. We carry no stock in the State of New Jersey. Under these circumstances, are we obliged to make the report referred to ? " It is beyond the power of a state to compel foreign corporations, engaged solely in interstate commerce, to pay taxes for the privilege of carrying on such commerce in a state. I understand that the Crane Co. does business in New Jersey solely through the medium of traveling salesmen, who take orders subject to 397 the approval of the home office, and that the com- pany maintains no office and carries no stock of goods in New Jersey. I am, therefore, of the opinion that the business of the Crane Co. in New Jersey consti- tutes interstate commerce, and that the company need not comply with the New Jersey foreign corporation law. I assume that the Crane Co. is not incorporated in New Jersey. THE RECOURSE OF A SHIPPER AGAINST A RAILROAD COMPANY FOR DAMAGES ARISING FROM DELAY OF GOODS IN TRANSIT AND AS TO THE EFFECT OF AN EMBARGO LAID BY CARRIERS AGAINST THE TRANSPORTATION OF GOODS. (Mathis Brothers Company, May 19, 1904.) "On Feb. 5th we consigned to the Eaton, Cole & Burnham Co., Bridgeport, Conn., a carload of manufactured galvanized steel, Pennsylvania Car No. 91803 via the Pennsylvania Ey. This car has not yet arrived at destination and we are just in receipt of letter from the General Superintendent of Freight Transportation of Pittsburgh, Pa., stat- ing that the car has just been transferred to the through line, on March 28th. We would like to have an opinion from your general counsel whether we have recourse against the Railroad Company for damages owing to non-delivery of this car. There is absolutely no excuse whatsoever for such treatment. You will note that the car has been in transit between here and Pittsburg forty-eight days. The Pennsylvania Railway Company claim that there has been an embargo on their line. They did not inform us of this when they took our car or else we would have routed it another way. ' ' The liability of the carrier for delay is covered in my opinion of October 28, 1902, in answer to the query of F. T. Bentley, chairman of the Traffic Committee. The liability of the initial carrier for delay occurring on connecting lines, is covered in my opinion of Octo- ber 30, 1903, in answer to the query of the Austin Mfg. Co. 398 An initial carrier is liable for delay on its own line. If a delay occurs on the line of a connecting carrier, such carrier is liable. The authorities are not agreed as to whether the initial carrier is liable for a delay occurring on the line of the connecting or intermediate carrier. The initial carrier may contract specially for such through liability. The Illinois courts have held that issuing a through bill of lading makes the initial carrier responsible for the safe and prompt carriage over the entire route. The question as to what is a reasonable time for de- livery being one of fact for the jury, no definite rule can be stated as to what will or will not constitute negligence. (6 Cyc., 443.) In III. Central R. Co. v. Cobb, 64 111., 128, where the ordinary time for transportation of freight between two points was about three days, a delay of thirty days was found to be unreasonable. Delay was at- tempted to be justified on account of accumulation of cars. In III. C. R. R. v. McClellan, 54 111., 58, the ordinary time was less than three days; part of the shipment arrived in eleven days and a part 45 days after ship- ment. The delay was held to be unreasonable. Ac- cumulation of freight at the place of delivery was held not to excuse the delay in that case. A carrier is bound to know, when he accepts prop- erty for shipment, that he has or can obtain facilities for its transportation within a reasonable time. Thomas v. Wabash, etc., R. Co., 63 Fed., 200. As to any cause of delay which he might anticipate he should advise the shipper, and if he does not do so the delay will not be ensued. Cincinnati, etc., R. Co. v. Webb, 46 S. W., 11 (Ky.). McLaren v. Detroit, etc., R. R., 23 Wis., 138. Bussey v. Memphis, etc., R. R., 13 Fed., 330. Ayres v. C. & N. W. R. Co., 71 Wis., 372. Where the carrier specifically agrees to deliver by a fixed time he must answer in damages for failure to do so and unavoidable accident, unexpected rush of 399 business, or the like will not furnish an excuse. He may refuse to receive goods on the ground of press of business, if he treats all alike. Generally speaking, where the carrier has already received goods for transportation, he will be held to answer for damages due to delay, although occasioned by an unusual press of business Faulkner v. 8. P. R. Co., 51 Mo., 311. International, etc., R. Co. v. Anderson, 21 S. W., 691 (Tex.). Unless the press of business could not have been anticipated at the time the goods were received, and the carrier can only excuse himself for delay on ac- count of unusual press of business by showing that he has made the best practicable use of his means of transportation. I. C. R. R. v. Cobb, supra. I. C. R. R. v. McClelland, supra. The communication states that the P. R. E. Co. ''claim that there has been an embargo on their line." It is not clear .whether this means that the embargo was their own, or the embargo of the connecting car- rier against their cars. I assume that the embargo was their own, as the delay of forty-eight days oc- curred between Chicago and Pittsburgh, points on the Pennsylvania System. An embargo is a declaration by a carrier that the condition of congested traffic exists that will justify it in refusing to receive freight consigned from certain points to certain other points. A carrier may give reasonable preference to certain goods over other goods, as for instance, relief goods sent to sufferers from some public calamity. (Mich. Cent. R. Co. v. Burrows, 33 Mich., 6. A carrier may also give prece- dence to perishable freight. Marshall v. N. Y. Cent. R. R., 45 Barb. (N. Y.), 502. Peet v. C. & N. W. R. R., 20 Wis., 624. In 8. S. Daish & Sons v. C. A. & C. Ry Co. et al., 9 Interstate Commerce Reports, 513, complainant al- leged unjust discrimination against it in favor of other 400 shippers by reason of unreasonable delay in forward- ing and delivering a carload of hay consigned from Condit, 0., to Washington, D. C., and prayed for an award of damages. The commission held that no un- just discrimination or undue prejudice to the com- plainant having been shown, the complaint should be dismissed. The facts were as follows : A car of hay was delivered to the C. A. & C. Ey. December 8, 1902, routed via the C. A. & C. Ey. and the B. & 0. E. E. The car arrived December 10, at Columbus, the junction point of the B. & 0. Counsel admitted that the car came into the possession of the B. & 0. some time previous to December 27. On January 29, 1903, complainant tendered to the B. & 0. agent at Washington, the bill of lading and the freight charges and the terminal charge of $1.00 at Columbus. The car had not arrived at Washington, and complainant brought the proceeding before the commission on January 31. In consequence of the great difficulty and delay in delivering east-bound freight from territory west of the bituminous coal region, the B. & 0. issued to its connections what are termed "Embargo notices" to the effect that certain kinds of freight would not be accepted by it. The first of these was issued Decem- ber 26, 1902, to the effect that on and after December 27, until further notice, the B. & 0. couldn't accept carload freight except live stock and perishable from certain points on connecting lines west destined for certain points on or via its lines east of certain other points. On January 5th and on January 6th further embargo notices were issued for other points, and there was again another notice on January 28th and on February 5th. Supplement No. 1 to Embargo Notice No. 26 read as follows : "Effective March 10th, the embargo placed by this company on carload freight from western connections in Embargo Notice No. 26, will be raised and shipments may be resumed as here- tofore." 401 The object of these notices was to keep open the main tracks of the road over which coal was being- transported, and besides coal, the other kinds of freight excepted from the embargo; to release and forward the freight already in its yards, and on its sidings, as new freight would, if accepted, only increase the exist- ing congestion. The commission said in its finding of facts : ' ' It was not unusual for restrictions to be placed upon certain kinds of traffic to certain places, but no such general restriction had ever before been found necessary. Similar restrictions upon traffic were made by other railway companies on the rail lines they operated over which coal was being transported during this strike period." The commission stated its conclusion as follows : "The anthracite coal strike, for which the de- fendant railroad company do not appear to be in any way responsible, necessitated the transporta- tion of bituminous coal from the mines in West Virginia, Maryland and Pennsylvania to eastern points to supply the demand for fuel for indus- trial and domestic use, and this operated to pre- vent the shipment of some other classes of freight. Defendants probably had the right to give such freight the preference, and it was not improper that live stock, perishable freights, and material or supplies for the railroads should be excepted from any embargo imposed. It is also proper that embargo notices should be given such connecting lines so as to avoid the further congestion of freight in junction freight yards; and in the forwarding of freight received from connecting lines, it was proper that cars should be forwarded as far as practicable in the order of their receipt, so that there should be no unreasonable discrimination or preference which might be avoided. Analyzing the testimony regarding the various cars passing over defendants' lines, it is found that only two (one from Jasper, Mich., and one 402 from the Pere Marquette K. B.) 'slipped through to destination after the receipt and before the de- livery of complainant's car, showing that the em- bargo was practically maintained, and enforced, and, therefore, no cause exists for any complaint or discrimination in favor of individuals. Neither does there appear to have been any undue prefer- ence given or favors shown to localities by de- fendants' to the undue prejudice or disadvantage of complainant, or the dealers of Washington and Baltimore; there being a general inability to sup- ply cars as well as motor power engines for the movement of freight. The necessity for keep- ing open for traffic the two main tracks of de- fendants' lines east of Cumberland required great care so that passenger travel and extraordinary and necessary freight transportation should not be obstructed or interfered with. The commission, however, is unable to find from the testimony that any undue or unreasonable prejudice or disad- vantage resulted to complainant, or that the de- fendants were guilty of unjust discrimination by reason of any of the facts complained of. The complaint, therefore, should be dismissed." In my opinion, after the receipt of freight for trans- portation where the carrier had reason to know that the conditions were such as to make an embargo immi- nent and probable, the fact that an embargo was actu- ally laid after receipt of the freight, will not, of itself, excuse the carrier from his previous duty to notify the shipper. If an embargo were otherwise a defense the carrier must also show the necessity of the embargo and that it was maintained without discrimination. In the present case in the absence of other controlling circumstances of which I am not advised, it is my opinion that the railroad company is liable for any damage of which delay complained of was the proxi- mate cause. As to the measure of damage see my opinion of October 30, 1903, to Austin Mfg. Co. 403 UPON WHOM THE RISK OF LOSS OR DAMAGE WILL FALL FOR GOODS SHIPPED BY LAKE AND SOLD F. O. B. DOCK. (Hines Lumber Company, May 18, 1904.) 1 'We have had numerous opinions from Mr. Mayer, the attorney of your association, regard- ing the ownership of lumber sold on a delivered basis. As we understand his previous opinions, a car of lumber sold delivered at Toledo, 0., the moment that lumber gets into the hands of the railroad company the buyer is responsible for the same in case of loss or damage, and that the seller looks to the buyer for payment. In the contract which we enclose you, we are supposed to deliver the lumber at Tonawanda. This lumber is deliv- ered by boat. Does the same principle apply in the case of delivery by boat as by car? On the lake, cargo insurance is obtainable against the perils of navigation. In the case of a delivery of this kind, suppose a loss occurred on the lakes through the perils of navigation, who stands the loss, the buyer or the seller? Is a delivered price f. o. b. dock Tonawanda merely to guarantee the price, or must the seller actually deliver the lumber there? If he actually must deliver the goods, is he not then liable for any loss that occurs while the lumber is in transit, or through the perils of navigation, or must the buyer insure such lumber against the perils of navigation, and is the lumber at his risk the moment it is placed over the rail of the vessel?" As stated in my opinion of October 24, 1903, to the American Steel & Wire Company, loss or damage to goods shipped occurring during transit falls ordinarily upon the owner of the goods. But who is the owner as between vendor and vendee, is primarily a question of intention to be determined from all the facts and cir- cumstances of the particular case. The contract under consideration provides that the lumber is to be "deliv- ered f. o. b. docks Tonawanda, N. Y." In the absence 404 of other controlling circumstances, this is in effect an agreement to deliver at Tonawanda, and the risk would ordinarily therefore be that of the consignor. The con- tract, however, provides : "Final settlement to be made in net cash upon shipment; but if the buyer has given notes, then any amount due buyer after all shipments have been made shall be paid upon the maturity and payment of such note. It is agreed that the time for the payments and shipments by buyer shall be considered essential parts of this contract. ***** The title to all lumber not paid for shall remain in seller until the same is fully paid for and until any notes given therefor are paid; but all lumber shall be at the risk of buyer after shipment from seller's dock." The effect of these clauses as between the parties is to reserve title in the consignor until the goods are paid for. At the same time, however, the lumber is expressly "at risk of buyer after shipment from seller's dock." I see no reason, however, why the con- signee cannot legally agree that even though the title to the lumber remains in the consignor, the risk is that of the consignee. Benjamin on Sales (3rd Ed.), Sec. 370. The contract, however, could in my opinion be made more specific as to the nature of the risk assumed by the consignor. The same conclusion here expressed applies whether the shipment be by rail or boat. A different principle might apply if the consignor is the owner of the boat. VALIDITY OP AN INSURANCE POLICY DATED ON SUNDAY, UNDER THE LAW OF ILLINOIS. (Monmouth Pottery Co., May 18, 1904.) "We beg to refer to you a question which comes up with us to-day in the course of business, and would ask that you please have your counsel advise 405 us whether or not an insurance policy dated on Sunday is valid and not liable to be questioned on this point in case of loss? We are advised that there are some kinds of papers which are not legally drawn on Sunday and would ask that you kindly advise us regarding whether or not it admits controversy on an insurance policy. ' ' Such a contract was valid at common law, and is valid in Illinois unless positively prohibited by statu- tory enactment. Sections 261 and 262 of the Criminal Code provide : "26.1. Whoever disturbs the peace and good order of society by labor (works of necessity and charity excepted) or by any amusement or diver- sion on Sunday, shall be fined not exceeding $25. This section shall not be construed to prevent watermen and railroad companies from landing their passengers, or watermen from loading or unloading their cargoes, or ferrymen from carry- ing over the water travelers and persons moving their families, on the first day of the week, nor to prevent the due exercise of the rights of con- science by whomever thinks proper to keep any other day as a Sabbath. 262. Whoever shall be guilty of any noise, riot or amusement on the first day of the week, called Sunday, whereby the peace of any private family may be disturbed, shall be fined not exceeding $25." These are the only statutory provisions in Illinois bearing upon the subject. In Richmond v. Moore, 107 111., 429, it was held that the word "labor" as used in the above statute, did not include business, and that a business contract did not come within the condemnation of the statute. To the same effect see : Eden v. People, 161 111., 296. Collins v. Stephens, 189 111., 200. I am of the opinion, therefore, that the policy in question is valid and enforceable. 406 REASONABLENESS OF CERTAIN TELEPHONE RATES IN CHI- CAGO AND REMEDY OF SUBSCRIBER WHEN RATES ARE EXORBITANT. (Sherwin-Williams Co., May 19, 1904.) "The Chicago Telephone Company through its representative Mr. F. R. Chester, has informed us that it is their purpose to advance the rates for service given to us over the trunk lines enter- ing our premises from $125.00 to $364.98 per year for each line and, in addition, to increase the mileage from 4 3/4, as per the original contract, to 6 and some fraction. The charge for this mileage now is $40.00 per mile. The boundary line which they have established we have not definitely ascertained. Inasmuch as we were unable to get a satisfac- tory explanation from representatives as to the cause for the enormous advance which they ask and, further, the fact that we feel the mileage which we are paying of $40.00 per mile is in ac- cordance with the laws existing regulating these matters, we ask for ourselves and in behalf of the manufacturers in this district, all of whom have been approached some accepting new contracts tendered and others holding the matter in abey- ance awaiting investigations which they are mak- ing that you favor us with such opinion as you may have and can get for us from your legal de- partment covering the ground in question." I do not know whether or not there is any law or or- dinance in force in the Town of Pullman fixing the rates which the telephone company may charge for telephone service. It might be well to find out under what authority the company is exercising its fran- chises in Pullman and whether or not there is any such restriction as to rates. The city ordinance of 1889, passed by the city coun- cil of the City of Chicago is restricted to the city limits of the City of Chicago, and therefore has no applica- 407 tion to the Town of Pullman. The limitations as to rates imposed by that ordinance therefore cannot avail telephone subscribers located in Pullman. The telephone company is a public service corpora- tion. It is its legal duty to treat alike all its patrons who are similarly situated. It cannot give a special privilege or a special rate to one subscriber and deny it to another in a similar situation. If, therefore, the company is guilty of unjust discrimination it can, in a proper proceeding be made to furnish service at the lowest rate at which it is furnishing such service to other subscribers similarly situated. The legislature has the power to reasonably regu- late the charges which the Chicago Telephone Com- pany may make for telephone service. This power has never been exercised by the legislature of Illinois. In view of the fact that many of the members of the association live beyond the limits of this city, within which the existing ordinance regulates the rates, I suggest that the matter ought to be taken up for legis- lative enactment. In the absence of any regulation by the legislature, or of a limitation in an ordinance or franchise, the only obligation resting upon the telephone company and other public service corporations, as to the rates which they charge for service, is that such rate must be rea- sonable. What is reasonable is sometimes a judicial, and at other times a legislative question. Where a public service corporation has performed a service and sues to recover compensation therefor, in the ab- sence of an express contract, the measure of its dam- ages is a reasonable compensation for the services per- formed; and whether the compensation which it de- mands is reasonable is a judicial question. If the legislature has fixed the compensation which a public service corporation may exact, then the reasonable- ness of the compensation so fixed is a judicial ques- tion. But the power to determine what is a reasonable rate, that is, the power to fix the rate at which a public service corporation must render a particular service, is a legislative and not ordinarily a judicial 408 question. It is beyond the power of the court, there- fore, to fix in advance what is a reasonable rate for any particular service. The province of the court is limited to the determination of what is an unreason- able rate. No proceedings could, therefore, be in- stituted to compel the telephone company to furnish service at a particular rate. If the telephone com- pany refuses to render service for a reasonable rate, an action would probably lie, or if the subscriber is compelled to pay an unreasonable or an exorbitant rate and he pays the same in such a way as to show it is paid under duress or under protest and he can- not obtain service in any other way, I am inclined to the opinion that the subscriber would have the right to recover back the amount in excess of a reasonable rate in a proper proceeding. The question of what is an unreasonable rate de- pends upon the consideration of many facts and cir- cumstances. As the court observed in Killmer v. R. R. Co., 100 N. Y., 395, 402 : "What is a reasonable sum for transportation of goods on the great railroad lines of the country in a given case is often a complex question, into which enters many elements and considerations, and is incapable of exact solution. ' ' There are no proceedings pending at this time which involve any question as to the reasonableness of rates. See the following authorities : Nebraska Telephone Co. v. State, 55 Neb., 627; s. c., 45 L. E. A., 113, and cases cited. Munn v. Illinois, 94 U. S., 113. Railroad Commission Cases, 116 U. S., 307. C., M. & St. P. Ry. Co. v. Minnesota, 134 U. S., 418. Ruggles v. Illinois, 108 U. S., 526, 531. 409 WHETHER LABOR AND LABOR UNIONS ARE WITHIN THE PROVISIONS OF THE ILLINOIS ANTI-TRUST LAW. (Heath & Milligan Mfg. Co., May 24, 1904.) "We have before us the reply of Mr. Levy Mayer concerning our inquiry regarding the status of the Anti-Trust Law of the State of Illinois. Mr. Mayer has made it very plain and we are glad to see that our interpretation of the law as repre- sented in our letter to you dated April 1st last, is correct. We note that Mr. Mayer, in referring to labor unions, etc., says he is in grave doubt as to whether labor could be considered 'An article of merchandise or commodity.' Suggestion: Suppose A owes B a note amounting to $10.00. A says B 'I have not the money to pay you, but I will work for you for five days.' In othej words, A agrees to exchange five days' work for the note held by B. To carry this hypothesis of reasoning still fur- ther, allowing that money is a commodity, and the note represents money, suppose A says to B, 'I will exchange my labor for your cash money at the rate of $2.00 per day'; is not the labor, which represents A's stock in trade, as much of a com- modity as B's cash money, or potatoes, or any .other commodity, which is offered in exchange by B for the labor of A!" That a labor union, like any other group of persons, may be guilty of conspiracy in restraint of trade is a settled proposition. Prentiss & Egan on the Commerce Clause, p. 323, citing : U. 8. v. Patterson, 55 Fed., 605. U. S. v. Workingmen's Council, 54 Fed., 994, 1000. U. S. v. Elliott, 62nd Fed., 801. U. S. v. Debs, 64 Fed., 724. In Curran v. Galen, 152 N. Y., 33, the court said: "In the general consideration of the subject, it 410 must be premised that the organization or the co- operation of workingmen is not against any public policy. Indeed, it must be regarded as having the sanction of the law when it is for such legitimate purposes as that of obtaining an advance in the rate of wages, or of maintaining such rate. * * * But the social principle which justifies such or- ganizations is departed from when they are so extended in their operation as either to intend, or to accomplish, injury to others. * * The ef- fectuation of such a purpose (the coercion of other workmen) would conflict with the principle of public policy which prohibits monopolies and ex- clusive privileges. It would tend to deprive the public of the services of men in useful employ- ments and capacities. It would, to use the lan- guage of Mr. Justice Barrett in People ex rel. Gill v. Smith (5 N. Y. Cr. K., 513) 'impoverish and crush a citizen for no reason connected in the slightest degree with the advancement of wages or the maintenance of the rate. ' ' ' The question submitted is not the economic or legal one, as to whether labor is property. The Supreme Court of Illinois in Ritchie v. People, 155 111., 98, has decisively held that labor is property. The query un- der consideration is whether labor is an "article of merchandise or commodity" within the words of the Illinois Anti-Trust Law, whether labor is something that can be engrossed, monopolized or made the sub- ject of a trust, pool or corner within the intent of the Anti-Trust Statute, which, being of a criminal char- acter, must be strictly construed. Although labor is indispensable to production, I am inclined to the opin- ion that it does not come within the designation of the Statute 'any article, commodity, or merchandise to be manufactured, mined, produced or sold in this state." Labor is not an article of "merchandise" nor is it a "commodity," within the meaning of the existing Anti-Trust Statute of Illinois, in my opinion. It is not material, portable, tangible nor the subject of bar- ter and sale. We may speak figuratively of the price 411 of labor as we speak figuratively of selling insurance. The courts have had occasion to pass upon the question of whether insurance is a commodity within the mean- ing of similar statutes. The Iowa Supreme Court in Beechley v. Mulville, 70 N. W. Rep., 107, held that insurance is a commodity. The Texas Supreme Court in Queens Ins. Co. v. State, 22 L. R. A., 483, held that it is not. In Cleland v. Anderson (Neb.), 92 N. W., 306, the court passed upon the labor exemption clause of the Nebraska Anti-Trust Law, as affecting the validity of that law. Sec. 9 of that act expressly excepts or- ganizations of laboring men for the purpose of rais- ing wages, from its operation and it was contended that special privileges and immunities are granted laborers contrary to Sec. 15, Art. 3, of the State Constitution. An Illinois Anti-Trust Statute, which exempted from its operations "agricultural products and live stock while in the hands of the producer or raiser" has been held unconstitutional by the U. S. Supreme Court in Connolly v. Sewer Pipe Co., 184 U. S., 540. The Ne- braska Supreme Court said, p. 308 : "In its letter and in its spirit, it refers only to combinations and conspiracies of persons engaged in the manufacture, sale and transportation of goods, wares, and merchandise to prevent or hin- der competition, and to regulate and control prices. No express exception of organizations of laborers intended to maintain or advance wages, was nec- essary to exempt them from its operation. The section in question is inserted rather, out of abun- dance of caution, to prevent judicial extension of the terms of the act beyond its scope and purpose, than to grant a privilege or immunity to persons who would otherwise fall within its terms. The distinction between goods and merchandise pro- duced by skill and labor and the skill and the labor which produced them is manifest and reasonable. The statute does not say that laborers who have goods, wares or merchandise, the product of labor, for sale, may combine to advance or control the 412 price, but only that the law designed to prevent the combination in restraint of trade in such arti- cles when produced, shall not be construed to affect organizations formed to regulate the wages or compensation of the labor and skill which pro- duced them. This distinction is suggested in Downing v. Lewis, 56 Neb., 386, 389, 76 N. W., 900; in that case it was held that a laundry was not within the purview of the statute under con- sideration. It is pointed out very abruptly that the business of a laundry is l to make clothes clean, rather than to make clean clothes. ' In other words, it sells no goods or wares. It merely bestows labor and skill upon them. The purpose of the statute as stated in that case is ' to prevent manufacturers and dealers in articles of commerce from combin- ing for the purpose of lessening competition, regu- lating production, and increasing profits.' Labor and skill are not articles of commerce, at least in the same sense as the articles thereby produced; and we think the classification which distinguishes them and provides for a diversity of legislation with respect to them is reasonable and proper." In State v. Henke, 19 Mo., 225, 226, defendants were indicted for hiring a slave to drive rail spikes with a spike maul and without the consent of the owner. The indictment was brought under the following section of An Act Concerning "Slaves": "Any person who shall buy of, sell to or re- ceive from any slave, any commodity whatsoever without the consent in writing of the master, owner, or overseer of such slave first had and obtained, or who shall deal with any slave without such consent, shall forfeit to the master, owner or overseer of such slave, four times the value of the commodity so bought, sold or received, to be recovered by action of debt with costs, and shall also forfeit to the county in which the offense was committed, twenty dollars, to be recovered by in- dictment. ' ' 413 The court in ruling that the indictment had been properly quashed in the court below, said : " 'The mauling of rails' charged therein, is not the commodity contemplated by the legislature, nor is it embraced by the statute. The staute was obviously designed to prevent slaves from trading, selling, or dealing in any commodity (that is, any- thing movable that is bought and sold) with a person, without the master's permission or that of the owner or overseer. It does not include the manual labor of the slave, however wrong it may be to hire or to induce a slave to work or labor for a person without the master or owner's knowledge and permission." As I have said, the Illinois Anti-Trust Statute is penal and must be strictly construed. In the Century Dictionary, commodity is defined as (1) accommodation, convenience, suitableness, com- modiousness; (2) profit, advantage, interest; (3) that which is useful, anything that is useful, convenient or serviceable, particularly an article of merchandise, anything movable that is a subject of trade or of acquisition. "The word is ordinarily employed in the com- mercial sense of any movable or tangible thing that is produced or used as the subject of barter and sale." Vol. 6, Ency. of Law, p. 230. There is nothing in the context of the statute requir- ing a departure from the rule of statutory construction that common or popular words are to be understood in their ordinary sense. The hypothesis propounded by the Heath & Milligan Mfg. Co. may be reduced to the following syllogistic form: Commodities have utility and value and are exchangeable ; labor has util- ity and value and is exchangeable; therefore labor is a commodity. The syllogism is obviously defective in that it assumes from the existence of particular quali- ties, the existence of general qualities of essence and identity. The contract of sale is distinct from the con- tract of service. 414 I do not pass upon the question of whether the leg- islature could under the police power make wages the subject of an Anti-Trust Law. It suffices to say that in my opinion " labor" is not within the provisions of the present Illinois Anti-Trust Law. WHAT CONSTITUTES A VALID TEADE-MARK. (Barrett Mfg. Company, June 20, 1904.) ' ' Our trade-mark is a black diamond bearing the initial 'B' in white thereon (proof attached). We claim that years of continuous use have fully es- tablished our exclusive right to the design in our particular line, and further, that the use of a black (diamond) with different initials or a monogram thereon, if applied to similar products, is an in- fringement, against which we have valid reason to protest. We would appreciate your opinion. ' ' The subject of trade-marks in general is covered in my opinion to the association under date of March 11, 1904, in answer to the query of J. E. Tilt Shoe Com- pany. A trade-mark is a distinctive name, word, mark, em- blem, design, symbol or device, used in lawful com- merce to indicate, or authenticate, the source from which has come, or through which has passed, the arti- cle upon which it is affixed. Hopkins on Unfair Trade, p 3, and cases cited. As a general rule, letters or numbers are not valid as technical trade-marks or trade-names, although the question is not entirely free from doubt. Letters or numerals may, however, form a part of a trade-mark, in combination or collection with words, figures or de- signs. They will be protected also when they are used in an arbitrary and distinctive manner. Hopkins on Unfair Trade, p 203, and cases cited. Proof of fraudulent intentor knowledge that the de- vices or symbols were the property of another is im- material in the case of a technical trade-mark. 415 Whether or not a trade-mark is infringed upon can only be determined by a comparison with the mark which is claimed to be an infringement. A resemblance to a particular trade-mark creates a presumption of fraud. The trade-mark of the Barrett Company, here under consideration, is, in my opinion, a valid trade- mark. It does not follow, however, as assumed by the company, that "the use of a black (diamond) with dif- ferent initials or a monogram thereon" constitutes an infringement. This can only be determined by com- parison, as above stated, and by a knowledge of all of the facts and circumstances showing the ownership and methods adopted by the parties in question. There is, however, another ground upon which the courts interfere, and that is known as "unfair trade." This interference does not depend upon the existence of a technical trade-mark, but is supported mainly to prevent frauds upon the public by unfair competition. If the use of any words, letters, numerals or symbols is adopted for the purpose of defrauding the public, the courts will interfere to protect the public from such fraudulent intent, even though the person asking the intervention of the court may not have the exclusive right to these words or symbols. While fraud is presumed from the wrongful use of a technical trade-mark, yet in cases of unfair trade, which do not involve a technical trade-mark, it must be proven directly or by inference. VALIDITY OF CREDIT INSURANCE POLICIES UNDER THE LAW OF ILLINOIS. (John E. Burns Lumber Co., June 20, 1904.) "We enclose herewith indemnity bond of the American Credit Indemnity Co. of New York. We have been using this kind of insurance for the past three or four years, and as our present bond will expire about September 1st, we would like to have your attorney's opinion as to whether this bond gives us the protection that the company who writes it represents that it does." 416 I have examined the policy in question. If all of its terms and conditions are complied ivith by the insured, it is a valid policy and will protect the lumber company against such loss as falls with in the provisions and scope of the policy. Care must be taken by the assured to comply with the terms of the policy. The court, in Chakman v. U. S. Credit System Co., 92 Wis., 374, in passing upon the validity of this char- acter of policy, said : ' ' The peril of loss by the insolvency of customers is just as definite and real a peril to a merchant or manufacturer as the peril of loss by accident, fire, lightning, or tornado, and is, in fact, much more frequent. No reason is perceived why a contract of indemnification against this ever- present peril is not just as legitimately a contract of insurance as a contract which indemnifies against the more familiar, but less frequent, peril by fire." There is no public policy or law in Illinois which affects the validity of this contract. It is entirely impos- sible to anticipate every dispute or controversy which may arise in the future in construing these policies with reference to particular facts or circumstances. Such questions must be decided as they arise, and of course I can give only a general opinion. The policy is like any other policy of insurance and is governed by the same legal rules. If the terms of the policy are ambiguous, they must be construed most strongly against the insurance company. American Surety Co. v. Pauly, 170 U. S., 133. NECESSITY OF A CORPORATION MAKING AN ANNUAL REPORT TO THE SECRETARY OF STATE UNDER THE ILLINOIS LAW OF MAY 10, 1901, AND EFFECT OF FAILURE TO MAKE SUCH REPORT. (American Strawboard Co., June 20, 1904.) Inquiry is made as to whether it is necessary for cor- porations to make an annual report to the secretary of state, as required by tlie Act of May 10, 1901. 417 In People v. Rose, 207 111., 352, the Supreme Court of Illinois held the act in question to be constitutional. The court decided, however, that the cancellation of the charter of the corporation, which the secretary of state is required to make upon his records in case of the failure of the corporation to make an annual report, does not, of itself, work a forfeiture of the company's charter, but is simply prima facie evidence of non-user which may be availed of by the state in a proceeding to forfeit the charter. The corporation could, however, in my opinion, defeat such a proceeding by the state by showing that it is in fact engaged in active business, as a corporation, under its charter, even though it failed to file the report in question. RIGHT OF THE CITY OF CHICAGO TO COMPEL A MANUFAC- TURER TO CHANGE HIS STEAM BOILERS TO COMPLY WITH CERTAIN RULINGS OF THE BOARD OF INSPECTORS OF STEAM BOILERS. (111. Mfrs. Assn. and Illinois Maintenance Co., Aug. 1, 1904.) I have your favor requesting an opinion as to whether the city has the right to compel a manufac- turer to change his boiler to comply with the following ruling of the board of inspectors of steam boilers and steam plants : "On last October this board made a rule that the size of blow-off pipes for horizontal tubular boilers must not be less than the sizes given below. 30-in. diameter not less than 2-in. blow-off. 36-in. diameter not less than 3-in. blow-off. 42-in. diameter not less than 3-in. blow-off. 48-in. diameter not less than 3-in. blow-off. 54-in. diameter not less than 4-in. blow-off. 60-in. diameter not less than 4-in. blow-off. 66-in. diameter not less than 4-in. blow-off. 72-in. diameter not less than 4-in. blow-off. I have also your enclosure from the Illinois Main- tenance Co. as follows : 418 ' ' Will you not kindly advise us whether there is an ordinance in effect in the City of Chicago requiring each boiler room to have two exits to the street ? If not, then what ordinance there may be bearing on the matter ? ' ' The city has the power to regulate this subject- matter by virtue of clauses 63 to 67 of Sec. 1 of Art. V of the General Act for the Incorporation of Cities and Villages. Clause 63 provides that the city council shall have power : "To prevent the dangerous construction and condition of chimneys, fire places, hearths, stoves, stove pipes, ovens, boilers and apparatus used in and about any building and manufactory, and to cause to be removed or placed in a safe condition when considered dangerous ; to regulate and pre- vent the carrying on of manufactories dangerous in causing and promoting fires; to prevent the deposit of ashes in unsafe places, and to cause all such buildings and enclosures as may be in a dangerous state to be put in a safe condition. ' ' Clause 67 gives the city council power "To pro- vide for the inspection of steam boilers." The board of inspectors of steam boilers and steam plants was created by ordinance of March 23, 1903, in effect May 1st, 1903. This ordinance and the amend- ment thereto contain all the provisions on the subject. The board has undoubtedly reasonable discretion to make general rules not inconsistent with the ordinance and under it to make special rulings in particular cases. The ruling as to sizes of blow-off valves if reasonable (and I presume the sizes given to be reasonable) is valid and can be enforced against existing plants as well as in the case of new installations. There is no ordinance specifying that each boiler room shall have two exits to the street, nor is there any rule of either the building department or the department of inspec- tion of steam boilers and steam plants, to that effect. The latter department in the exercise of its reasonable 419 discretion may require suitable means of egress from a boiler room. The bursting of a steam pipe might very readily be the cause of a man being scalded to death where there is only one exit. In such boiler rooms sufficient means of egress have been required by the board in several instances. The courts will not interfere with the reasonable discretion of such boards. WHETHER A CARRIER CAN LIMIT A JOINT RATE TO A GIVEN CONNECTING LINE (Illinois Mfrs. Assn., August 9, 1904.) "I would like to submit the following proposi- tion for your consideration and opinion: The L. S. & M. S. published a tariff naming rates from various points on that road to various points on other roads east of the Mississippi River. Practically all of the roads into the territory are shown as parties to this tariff and I understand the tariff has been approved for use of all the roads. There is nothing in the tariff which gives any routing or specifies that the rate between any two points is or is not good via any line. Have the Lake Shore and its connections any right to say that, as an illustration, the rate from Grand Rapids, Mich., to Pittsburg, Pa., is good joint between the Lake Shore and B. & 0., but it is not good joint between the Lake Shore and Penn- sylvania Roads, although the Pennsylvania is a party to this tariff and has properly stamped the tariff as being good via that line ; or is it legal and proper for us to claim the rate is good via all lines party to the tariff and reaching the destination in question, unless the tariff specifically excepts cer- tain roads and routes'?" I have not before me the tariff in question, nor am I familiar with the various contracts and arrangements which the L. S. & M. S. R. R. has doubtless filed with the Interstate Commerce Commission, as required by 420 law. The question, as I understand it, is whether, an initial carrier who has established a through rate from a point on its own line, which latter point is reached by several railroads connecting with the lines of the initial carrier, can limit that through rate to ship- ments over lines of only one of the connecting car- riers. Section 3 of the Interstate Commerce Act provides as follows: "Every common carrier subject to the provisions of this act shall, according to their respective pow- ers, afford all reasonable, proper and equal facili- ties for the interchange of traffic between their re- spective lines, and for the receiving, forwarding and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines, but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." Section 6, as amended, provides: ' ' Every such common carrier, shall also file with said Commission copies of all contracts, agree- ments or arrangements with other common car- riers in relation to any traffic affected by the pro- visions of this act to which it may be a party. And in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier and the several common car- riers operating such lines or routes established joint tariffs or rates or fares or charges for such continuous lines or routes copies of such joint tar- iffs shall also, in like manner, be filed with said Commission." Section 6 also provides: "It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of per- 421 sons or property, or for any services in connection therewith, between any points as to which a joint rate, fare, or charge is named thereon than is specified in the schedule filed with the Commission in force at the time." At common law a common carrier is not bound to carry beyond its own line. If it contracts to go be- yond, it may determine for itself what agencies it will employ, and its contract is equivalent to an extension of its line for the purpose of the contract. And if it holds itself out as a carrier beyond its line, so that it may be required to carry that way for all alike, it may nevertheless confine its carrying to the particular route which it chooses to use. It puts itself in no worse condition by extending its route with the help of others than it would occupy if the means of transportation employed were all its own. It may select its own agen- cies and its own associates for doing the work. If an interstate carrier enters into an arrangement with any connecting carrier for through billing, rating and loading and for the use of its tracks and terminals, it is not obliged to make the same arrangements with other connecting carriers even though the physical facilities for an interchange of traffic are the same. While the Interstate Commerce Act was apparently designed to require connecting carriers to join in the formation of through rates at lower aggregate rates than a combination of locals, the machinery necessary to accomplish that purpose was not provided, and no tribunal has any power to effect that result. I am therefore of the opinion that the carrier cannot be compelled to apply the through rates to all con- necting lines, but it can restrict such rates and ship- ments thereunder to such lines as it sees fit to enter into arrangements with. Gulf, etc., R. Co. v. Miami S. S. Co., 86 Fed., 407. Int. Commerce Comm. v. Western, etc., R. Co., 83 Fed., 83. N. Y., etc., R. R. Co. v. Platt, 7 Int. Com. Rep., 323. 422 Little, E., etc., R. Co. v. St. L., etc., R. Co., 63 Fed., 775. 17 Ency. of Law (2d Ed.), p. 127. NOTE: See the later opinions of March 17, 1905, for the Manierre- Yoe Syrup Co. and of April 20, 1907, for Wilson's Interest; and also the case of Central Stock Yards Co. v. L. $ N. By. Co., 192 U. S., 568 (1904). The Interstate Commerce Act as amended in 1906 gives the Commission power to prescribe through routes and rates. Ed. THE VALIDITY OF THE CLAUSE IN A BILL OF LADING IMPOS- ING A PENALTY FOE OVERLOADING CABS. (The S. P. Shotter Company, August 9, 1904.) My opinion is requested on the validity of a condi- tion in a bill of lading, imposing a penalty for over- loading cars. The condition is as follows: "2. Cars overloaded more tnan ten per cent, above their marked capacity will be subjected to a penalty of one and one-half rates to be charged on all weight in excess of marked capacity of car. In addition the expense of transferring the load will be charged against the shipment." The shipment originated and the bill of lading was issued at a point in Mississippi. It is, therefore, a Mississippi contract. To bind the consignee the condi- tion must have been assented to. In Southern Express Co. v. Moon, 39 Miss., 822, at p. 832, the Mississippi High Court of Errors and Ap- peals said : "The public policy on which the extraordinary liability of common carriers is founded is too im- portant to be thus virtually repealed by the fraud and circumvention of artfully contrived printed or prepared receipts thrust upon those to whom the hurry and press of railroad travel denies the time of examination, or the opportunity of fair as- sent. ' ' If the provision in the bill of lading was assented to by the consignee, either personally or by his agent, it constituted an agreement, the validity of which remains to be determined from other considerations than those 423 involving the assent of the shipper. If it was not as- sented to, of course, it is not binding. Where the damage is not readily ascertainable, the parties may agree upon any sum as compensation for the breach of the contract, but the sum agreed upon must not manifestly exceed the amount of the damage suffered. Such agreed sum is "liquidated damages." But when the sum agreed upon is manifestly greater than the actual damages, and the damages are such as can be readily shown, such sum so inserted in the con- tract will be regarded merely as a penalty, and only the actual damages can be recovered. Schofteld v. Tomkins, 95 111., 190. Radcliff v. Hoar,se, 96 111. App., 74, 192. Poppers v. Meagher, 148 111., 192. Gobble v. Linden, 76 111., 157. Morris v. Tittson, 81 111., 607. Reeves, Admr., v. Slipp, 91 111., 609. A penalty is defined in the Ex. p. Burden, 16 Ch. D., 675, as "something which a debtor is bound to pay, over and above the original liability, as a punish- ment. ' ' In distinguishing between penalties and liquidated damages, due weight is given to the words of the par- ties, but the words employed must yield to the general intent. Thus what were denominated liquidated dam- ages by the parties have, in many instances, been held to be penalties, and the use of the word penalty in the present case is not of itself conclusive. Each case must stand upon its own facts. Keeble v. Keeble, 85 Ala., 552. Jaqua v. Headington, 114 Ind., 309. 19 Ency (2nd Ed.), p. 401. Where there is no actual damage sustained, or claimed, the sum fixed is a penalty. McCann v. Albany, 11 N. Y. App. Div., 378. I assume that no actual damages, in fact, resulted to the car itself from overloading. Any other damages would be merely nominal, or so indirect and remote as not to sustain the theory that the rate and one-half penalty is a liquidated allowance for them. Of this 424 kind might possibly be claimed the increased risk and inconvenience in the operation of trains from unequal distribution of train loads ; or, again, the constant but imperceptible injury to the permanent structures of the road (such as bridges, etc.) from a too heavy con- traction of weights on a given wheel base. It is clear, also, that a penalty is intended from a fixing of "rate and one-half" which would be quite different in amount with freight of different classifica- tion under the identical condition of overloading. Nor can the penalty be justified as imposed in the interest of "public safety." The power of imposing fines in this behalf is competent only to the public authorities. I am of the opinion, therefore, that the charges in question constitute a penalty and cannot legally be col- lected. If the car at the time of loading be not under the carrier's contract or direction (e. g., if it be in the ship- per's private yard or on its private siding), the pro- vision that "the expense of transferring the load will be charged against the shipment" is not penal, and can doubtless be enforced. IN -REFERENCE TO CLAIMS AGAINST A RAILROAD FOR BREAK- AGE. (Monmouth Pottery Company, August 9, 1904.) "Will you kindly note the enclosed letter from the agent of the C., B. & Q. By, here, relative to the breakage claims which they have declined for the reason that we will not make an allowance of $1.00 on each claim which they insist on, covering what they term 'usual breakage.' We would like your counselor Mr. Mayer's opinion on this mat- ter. Our contention, if we make this allowance, is that we sent out improperly packed ware, which is very unreasonable and we think their demand unjust. They accept our goods for original ship- ment in carloads or less than carload lots and they 425 arrive at destination very roughly handled and then when claim is placed covering damages, the E. E. Co. makes the excuse that the goods were improperly packed, etc. As a common carrier, should they not pay all legitimate claims for break- age, etc., originating on their lines'? Of course, their legal department may make such claims as they state, but are they not paid for such an opin- ion regardless of the rights of justness to ship- pers'? They also make the assertion that it is the usual allowance made by the other western stone- ware manufacturers and we have letters from these firms stating that they make no such allow- ance whatever. ' ' The letter of the railroad company is as follows : 1 ' Eef erring to your claim as above numbered, I regret to advise that it has been decided by our legal department that we are not responsible for the amount of these claims covering breakages, as this ware was accepted and forwarded at 'Own- ers Eisk Eate,' even besides this we have made you a very low rate with the understanding that no claims were to be filed for breakages. The amount of these claims more than cover the amount of revenue which we received. Further- more we do not admit that cars have been improp- erly handled which might have caused this break- age, or cracking of the ware, but take the stand that if these shipments had been packed in the proper shape, they should have gone through with but very little, if any breakage. However, we do not expect to handle this commodity without more or less breakage, which amount largely depends upon the manner in which the cars are loaded. Of course, personally, I would be glad to reimburse you for what losses are incurred in handling this ware while in transit, also while in the hands of teamsters and consignees, but we are compelled by decision of our legal department to take the position as above stated, without making any ex- ceptions in your case. We have closed our records 426 on the above numbered claims, returning papers to our general office for file." The letter of the pottery company refers to an en- tirely different question than that referred to in the letter of the railroad company. I will therefore an- swer the questions raised in both letters. The question raised in the pottery company's let- ter is, I take it, whether the carrier can insist on an allowance covering what is termed " usual breakage." A carrier is liable at common law, as an insurer of the goods, for all loss or damage not occasioned by the act of God or the public enemy. There is no liability, how- ever, where the damage is occasioned by reason of the improper or defective packing of the goods, where the defect is not known to the carrier. If the improper condition of the goods is apparent or observable in the exercise of reasonable care, then the carrier should re- fuse to receive the goods, and if it receives them it is liable for the damage. The burden of proving that the goods are improperly packed is on the carrier, and in the absence of such proof the carrier is liable. In the absence of a special agreement I am of the opinion, therefore, that the carrier has no right to make any de- duction for "usual breakage," and is liable for the damage sustained. The letter of the railroad company, however, states that the goods were shipped at "Owners' Kisk Bate," with the understanding that no claims were to be filed for breakage. I have not before me the bill of lading under which the particular shipment was made and cannot, therefore, determine whether the liability of the carrier is restricted or not. The carrier is permitted to limit its common law lia- bility by special contract where such restrictions are expressly or impliedly assented to by the shipper, or his agent, and there is a special consideration for such restriction such, for instance, as a reduced freight rate. The shipper must, however, be given an oppor- tunity to ship his goods at common law liability. The authorities upon each of these propositions are referred to, in my opinion, to the association upon the 427 Uniform Bill of Lading under date of February 13, 1904. If the shipment was made under a bill of lading restricting the liability of the carrier, and the restriction was assented to by the shipper and the shipper was given real freedom of choice between the special contract restricting the liability of the car- rier and a shipment under the common law liability, the carrier is not liable. If all of these conditions are not present, the carrier is liable. THE LIABILITY OF A CARRIER FOB GOODS FROZEN IN TRANSIT. (W. M. Hoyt Company, August 9, 1904.) ' ' On January 23d of the present year we made a shipment of goods to Keelfisch & Son, Hartford City, Ind., including two boxes of Navel Oranges, via Panhandle R. E. Co. This shipment was ac- cepted by the E. E. Co. in good condition and noth- ing was said by the company's agent regarding the perishable portion of the shipment. The oranges were frozen en route and we are asking to be reim- bursed for them. The E. E. Co. claim not to have refrigerator cars making this route, and since they were not informed at the time of accepting the consignment of the perishable goods disclaim any liability. It is our understanding that a common carrier is liable for all goods in transit, unless circumvented by an act of God, and the question of having refrigerator cars had nothing to do with the consignor. We have had every claim of this sort paid this last season (about eight or nine in number) and we do not feel that the Panhandle people are treating us fairly. ' ' A carrier is liable at common law for all loss or dam- age to goods shipped not caused by the act of God or the public enemy. When goods of a perishable nature are injured or partially destroyed by a sudden and unexpected frost, this is an act of God and the carrier is not liable. Vail v. Pacific R. Co., 63 Mo., 230. Wolf v. American Express Co., 43 Mo. 423. 428 Sweetland v. Boston, etc., R. Co., 102 Mass., 276. But in such a case it must appear, in order to excuse the carrier, that the frost was unexpected and not to have been anticipated by reasonable foresight, and also that the carrier had adopted all such precautions as a man of ordinary prudence and care would have taken under the circumstances. If the transportation is being carried on at a season of the year and in a locality where a freezing spell is, in the nature of things probable, it will be held liable for a loss of perishable goods caused by their being frozen, when common prudence would have required it to anticipate such a cold as probable and provide against it by shel- tering the goods. McGraw v. Baltimore, etc., R. Co., 18 W. Va., 361. 5 Ency. of Law (2nd Ed.), pp. 234, 235. It is also the duty of a carrier to furnish cars for the shipper in all respects safe and suitable for the goods of the character of those to be transported. Terre Haute, etc., R. R. Co. v. Crews, 53 111. App., 50. 5 Ency. of Law (2nd Ed.), p. 175. And where a company undertakes to carry perish- able goods it is bound to use for its transportation such improved refrigerator cars as are generally in use for protecting such articles. And when the company owns no such cars it is not relieved from liability on that account where it is possible to protect the perishable goods in some other way. Beard v. I. C. 'R. R. Co., 79 la., 518, 527. Chicago, etc., R. R. Co. v. Davis, 159 111., 53. Where the shipper conceals the true nature of the goods, or where the goods are packed in such manner that the carrier cannot be presumed to know their nature, and the carrier transports them in a different manner than it would have adopted if it had known the true nature of the goods, the carrier is relieved from liability if it appears that the method of transporta- 429 tion was a proper one for the goods of the character such goods appeared to be C. & A. R. R. Co. v. Shea, 66 111., 471. 5 Ency. of Law (2nd Ed.), p. 371. Assuming, therefore, that the character of the goods was apparent, or that the carrier know of their nature, I am of the opinion that the carrier is liable. THE CONSTITUTIONALITY OF THE ILLINOIS LAW EEQUIEING THAT EMPLOYES SHALL BE ALLOWED TIME TO VOTE. (Studebaker Bros. Manufacturing Company, August, 9, 1904.) ''We would be very much pleased to have a direct opinion as to the constitutionality of the law which provides that there shall be no deduction made from the employees' wages on account of the absence (from the services of employment referred to in said law) of employes who are paid by the day, week or month, as the case may be. If con- stitutional, it is a matter of regret for employers that the Legislature in its wisdom did not substi- tute the entire day for the two hours now pro- vided. ' ' The statute in question is Section 25 of the Ballot Law of 1891, which provides : "Any person entitled to vote at a general elec- tion in this State shall, on the day of such election, be entitled to absent himself from any services or employment in which he is then engaged or employed for a period of two hours between the time of opening and closing of the polls ; and such voter shall not because of so absenting himself be liable to any penalty, nor shall any deduction be made on account of such absence- from his usual salary or wages. Provided, however, that applica- tion for such leave of absence shall be made prior to the day of election. The employer may specify the hours during which said employe may absent himself as aforesaid. Any person or corporation 430 who shall refuse to an employe the privilege hereby conferred, or shall subject an employe to a penalty or deduction of wages because of the exercise of such privilege, or who shall, directly or indirectly, violate the provisions of this section, shall be deemed guilty of a misdemeanor and be fined in any sum not less than five dollars ($5) nor more than one hundred dollars ($100)." Where the employment is by the piece, or by the hour, the above section has no application. The statute, if valid, must find its justification under the police power of the State, vested in the Legislature. The nature and limitations of the police power are very fully covered in my opinion to the association under date of August 5, 1903, wherein was discussed the con- stitutionality of the law requiring an employer to state that there is a strike at his plant when advertising for men to take the place of strikers. I there established inter alia, the proposition that any unwarranted interference by the State with the liberty of contract between employer and employe is in violation of Article XIV of amendments to the Con- stitution of the United States, and of Section 2 of Arti- cle II of the Constitution of Illinois, which provide : ' ' That no person shall be deprived of life, liberty or property without due process of law. ' ' In that opinion it was said : "The vocation of an employer, as well as that of his employe, is property." Citing : Coal Co. v. People, 147 111., 66. State v. Goodivillie, 10 S. E. Eep., 285, 287 (W. Va.). A prohibition by the State of any attempt to penalize the exercise of a civic duty (such as voting, riot duty, or jury service) is well within the police power vested in the Legislature. Whether the franchise be regarded as a moral duty, or as a privilege, public policy demands that it should be exercised freely and without coercion. There are statutes in many States aimed at such coercion by the employer which prohibit threats of 431 a reduction of wages, loss of employment, etc. But the burdens of citizenship, like the privileges, are attached to the individual and cannot be shifted. (Qui sentit commodum sentire debet et onus.) The police power is not so elastic a thing as to give warrant to a statute which confiscates the property of the employer and grants it to the employe as an incen- tive to exercise the right of suffrage. If Section 25 of the Ballot Law of 1891 merely pro- vided that the employe should suffer no penalty, e. g., punishment, fine, loss of employment, etc., it would be a valid and highly salutary enactment. But it goes farther, it provides not only that the employer shall inflict no penalty, but that the employer shall pay his employe a bounty for exercising the franchise. A State militia law might have an analogous provi- sion that no officer or enlisted man should be discharged from his employment by reason of his attendance on his annual encampments. Such provision would be valid under the police power, being traceable by no de- vious process to the head of public safety. (Salus populi suprema lex.) Should such a law, however, go so far as to require the payment of wages by the em- ployer to the employe during the time of duty at an annual encampment, it would be violative of natural equity, and manifestly unconstitutional. The distinction, therefore, is, in my opinion, clear. Where a statute prohibits a penalty inflicted by the employer as a determent from the performance of a duty to the State, or the exercise of a right of citizen- ship, such statute is valid; where, however, as in this instance, a statute taxes the employer as an induce- ment to the employe to perform the duty or exercise the right, such a statute is unconstitutional and void. A further objection to the law, if any be needed, is that it places a class of persons sui juris under the special tutelage of the State. I am of the opinion, therefore that Section 25 of the Ballot Law of 1891 violates both the State and Federal Constitutions. 432 WHETHER EMPLOYERS ARE LIABLE FOR THE PAY OF EM- PLOYES TAKING THE TIME TO VOTE, UNDER THE ILLINOIS LAW. (The Brunswick-Balke-Collender Company, August 9, 1904.) "Referring to the opinion of Mr. Levy Mayer as to the right of the employer to specify the time of day for employes to vote herewith attached, our factory as a rule starts at 7 a. m. Suppose we start at 8 a. m. on election day, that will give the men from 6 to 8 (two hours) to vote, must we pay them the two hours if they demand it, or suppose we close all day, would we be obliged to pay the men two hours 1 ' ' The law provides that the employe shall be entitled to absent himself two hours "from any service or em- ployment in which he is then engaged or employed." If the factory usually opens at 7 a. m., and it is opened at 8 a. m. on election days, this would not be a com- pliance with the statute, as it would not be two hours' freedom from service. There is nothing in the law which prevents the em- ployer from shutting down his factory all day. Whether he will be liable for a day's wages depends upon the contract of the employe. If the employe works by the hour or piece there would be no liabil- ity. WHETHER OR NOT IT IS NECESSARY TO COPYRIGHT TRADE- MARKS AND TRADE-BRANDS TO PREVENT THEIR USE BY COMPETITORS. (Charles Emmerich & Co., June 20, 1904.) "We beg leave to ask for the opinion of our counsel as to whether or not it is necessary to copyright trade-marks and trade-brands to protect us against their being used by competitors." The right to a trade-mark is a common law right and is not dependent for its validity upon any statute. Stat- ute have been enacted by Congress and different 433 states in aid of the common law rights and providing for the registration of trade-marks, but compliance with such statutes is not a prerequisite to the acquisition of a valid trade-mark. A right to a trade-mark is not created by registration. Registration under the Act of Congress is of little practical value, except for the purpose of creating a permanent record of the date of the adoption and use of the trade-mark, or in a par- ticular class of cases where it is desirable to assert one's rights in the United States courts. That class of cases has reference to foreign commerce and commerce with the Indian tribes. Registration is only prima facie evidence of ownership of the trade-mark registered, and is not conclusive or binding upon the courts as to the right of the party to exclusive use. The mere fact that the trade-mark has been registered does not create the conclusive right of user. NOTE: The Federal statute has since been amended. See the later opinion of March 17, 1905, to Eubber Paint Co. Ed. WHETHER AN ARCHITECT OR CONSULTING ENGINEER IS LIA- BLE FOR THE INSTALLATION OF MACHINERY THAT DOES NOT PROVE SATISFACTORY. (Robert W. Hunt & Co., August 9, 1904.) "Will you kindly furnish me with an opinion on the following hypothetical question: Supposing that an architect or consulting engi- neer is retained by a company or individual to draw up plans and specifications and superintend construction of a manufacturing or electric power plant, and that said architect or engineer furnishes such plan and specifications, using his best judg- ment, but in doing so either makes a mistake in judgment or finds that some of the machinery in- stalled is not adapted for the particular service re- quired, although such machinery was installed with the full knowledge and approval of the owner. Would the said architect or engineer be in any way liable for damages or could the owner deduct 434 from the commisison to be paid said architect or engineer an amount equal to the expense of recti- fying such mistake, or if the damage to the owner through such mistake was more than the commis- sion due, would the owner have the right to refuse payment of any part or all of the commission 1 ' ' An architect's responsibility is analogous to that of a lawyer or physician. There is an implied under- taking that an architect or engineer possesses sufficient skill and ability to perform the required services at least ordinarily and reasonably well. He must exer- cise his skill, ability and judgment (in the case of an architect also his taste) reasonably well and without neglect. Coombs v. Beede, 89 Me., 187. Hubert v. Aitken, 15 Daly (N. Y.) 237. Moneypenny v. Hartland, I. C. & P., 352. An architect covenants not only that he is in pos- sesison of requisite skill, but that the skill shall be exercised in the work which he has undertaken. Johnson v. Wanamaker,, 17 Pa. Super. Ct., 301. But it is not necessary for him to be more than ordi- narily careful and attentive, or so closely to superin- tend the construction by the contractor as to discover contract variations and the defects of execution that can only be detected by the exercise of extraordinary diligence. Stewart v. Boehme, 53 111. App., 463. Vigeant v. Scully, 20 111. App., 437. And where a skilled architect uses his best judg- ment, he is not liable for faults in the construction re- sulting from defects in the plans. Chapel v. Clark, 117 Mich., 63"8. His undertaking does not imply or guarantee a per- fect plan or a satisfactory result, and there is no im- plied warranty that the building can be built from the plans. Coombs v. Beede, supra. Shipman v. State, 43 Wis., 381. Thorn v. London, 1 App. Gas., 120. An architect is responsible not only for actual fraud 435 committed by him, but also for a negligent disregard of his duty. Larker v. Colton, 80 111. App., 75. Schreimer v. Miller, 67 Iowa, 91. The measure of damage ordinarily in an action to recover for an architect's negligence in drawing plans is the difference between the value of the building as designed and constructed and what it would have been worth had it been properly constructed. Larrimore v. Comanche Co. (Tex.) 32 S. W., 367. Whether an architect has used proper skill and dili- gence is a question of fact for the jury. Moneypenny v. Hartland, I. C. & P., 352. In an action by an architect to recover for services where the architect furnished defective plans, whereby the owner suffered damage, the owner is entitled to a reduction of the amount of damage caused by the archi- tect 's negligence. Hubert v. Aitken, 15 Daly, 237. On the hypothetical case given the skilled engineer or architect exercising "his best judgment," and not guilty of negligence, is not liable in my opinion. But where he is incompetent and negligent, or either, he is liable, and the owner may make the deduction from his commissions ; and, of course, if the damages exceed the commissions, the owner would have the right to re- fuse payment of any part of the commissions. The language, used in the Hunt Companys communication is a trifle ambiguous "using his best judgment, but in doing so either makes a mistake in judgment, or finds that some of the machinery installed is not adapted for the particular service required, although such ma- chinery was installed with full knowledge and approval of the owner. ' ' As above said, if the engineer makes a blunder due to negligence or lack of skill, he is liable, and the inaction of the owner would probably not affect the question, because what is evident to an expert may be latent to an inexpert. 436 THE EFFECT OF THE WORDS F. O. B. COMMON SHIPPING POINT/' AND OTHER EXPRESSIONS, AS FIXING THE LIABIL- ITY LOSS ON GOODS IN TRANSIT. (J. B. Inderridden Company, August 9, 1904.) 1 1 We would thank you to kindly secure for us an expression of opinion from Mr. Levy Mayer, with respect to the following clause which appears in our contracts : 'Terms: Net cash, sight draft against bill of lading, draft to be held by bank until arrival and inspection of goods by purchaser.' The merchandise having been sold f. o. b. com- mon shipping point California, when does the own- ership pass from the seller to the purchaser? If, in your opinion, ownership does not pass to the purchaser until after the arrival and inspection of the merchandise, then how may we as sellers pro- tect ourselves? The idea in selling f. o. b. com- mon point is to have ownership pass immediately the goods are put f. o. b. to the purchaser. At the same time, we must necessarily allow the pur- chaser the privilege of awaiting the arrival of the goods before payment is made, so that he may have an opportunity of seeing that the goods shipped are such as purchased. Having had some trouble to protect ourselves we inserted this additional clause in the contract: 1 Seller not liable for loss of, or damage to goods while in transit.' The purchaser then took the position that, the car having been lost in transit, since he had pur- chased draft payable on arrival and inspection and the car never having arrived, he was not liable. Custom : Would the general customs of the trade in our line affect your opinion? It has always been the custom where goods are damaged or partly lost in transit, for purchaser to assume the burden of making claim on the transportation company, but 437 in several instances entire cars have been lost and then the purchaser simply took the position that they were not liable under the terms of the contract, since they had purchased with the under- standing that they would pay for the goods on ar- rival. ' ' The question as to when the title to goods shipped passes to the consignee is primarily a question of in- tention, which can only be determined by reference to all the facts and circumstances of the particular case. I have not before me all of the terms of the contract under which the particular shipment is made. As a general rule, delivery to the carrier is a delivery to the consignee, and the risk of transit is on the con- signee. This rule, however, may be varied by other circumstances showing an intention on the part of the consignor to reserve the jus disponendi. The authorities are referred to in my opinion to the association under date of October 24, 1903, in an- swer to the query of American Steel & Wire Company. Where, under the contract, the property is delivered to the carrier and the consignee has the right to inspect the goods and return them if not satisfactory, the title does not pass to the consignee until acceptance, and the risk of carrier is imposed on the consignor. The same is true in the absence of other circumstances if the bill of lading is attached to a draft to be delivered upon the payment or acceptance of the draft, especially where the bill of lading is issued in the name of the consignor. It is possible, however, that the risk of carriage be assumed by the consignee even though the title remains in the consignor. Benjamin on Sales (3rd Ed.), Sec. 370. I am of the opinion that the clause above quoted will cover the case and throw the risks of carriage on the consignee, although it is possible to make it more spe- cific. I am, therefore, of the opinion that the consignee is liable, even though the car was lost in transit and never delivered to the consignee. A custom of the trade can have no application in determining whether or not the consignor or consignee must prosecute the 438 claim against the carrier. This must be determined by other circumstances. THE EFFECT OF CERTAIN WORDS (SUCH AS TITLE TO REMAIN IN VENDOR UNTIL GOODS ARE PAID FOR) TO RETAIN THE TITLE TO GOODS SOLD IN THE VENDEE. (Emerson Manufacturing Company, August 9, 1904.) ' ' In talking with one of the leading concerns re- garding the question of the seller retaining the title in his goods until they were paid for in cash by the buyer, a contract embodying the following clauses is reported as having stood the test in many suits and never failed to hold the goods. Will you kindly give us Mr. Mayer's opinion as to the value of these clauses in a straight sale contract? 'Should the buyer become insolvent or in de- fault, seller shall have the right to declare the whole account due. 'The title to the goods delivered under this con- tract to remain in the seller until it shall have re- covered the money for the same and upon failure to make such payment, the seller may repossess itself and take away said goods.' The clause in question is effective to retain title in the seller as between buyer and seller until pa3 r ment of the same is made. The vendee, however, having pos- session of the property, is clothed with the indicia of ownership and in many of the States can convey a good title to a subsequent purchaser or an attaching or execution creditor to the exclusion of the seller. The authorities sustaining this position are referred to in my opinion of March 11, 1904, to the Gregory Electric Company. 439 AS TO WHETHER UNDER THE ELECTION LAW EMPLOYES MUST BE PAID FOR THE TWO HOURS FREE TIME THEY ARE AL- LOWED FOR VOTING. (The Brunswick-Balke-Collender Co., Aug. 9, 1904.) "Referring- to the opinion of Mr. Levy Mayer as to the right of the employer to specify the time of day for employes to vote herewith attached, our factory as a rule starts at 7 A. M. Suppose we start at 8 A. M. on election days, that will give the men from 6 to 8 (two hours) to vote, must we pay them the two hours if they demand it, or sup- pose we close all day, would we be obliged to pay the men two hours. ' ' The law provides that the employe shall be entitled to absent himself two hours "from any service or em- ployment in which he is then engaged or employed." If the factory usually opens at 7 A. M. and it is opened at 8 A. M. on election days, this would not be a com- pliance with the statute, as it would not be two hours freedom from service. There is nothing in the law which prevents the employer from shutting down his factory all day. Whether he will be liable for a day's wages depends upon the contract with the employe. If the employe works by the hour or piece, there would be no liability. BASIS OF ASSESSMENT OF CAPITAL STOCK OF A CORPORATION WHOSE STOCK IS SUBJECT TO ASSESSMENT BY THE LOCAL ASSESSOR. (Illinois Mfrs. Assn., Aug. 9, 1904.) I have your favor in which you ask my opinion on the amount of taxes a corporation whose capital stock is subject to assessment by the local assessor must pay. The authorized capital 'is $5,000,000. Paid in $5,000,- 000 ; market value of shares, $225 each ; real and per- sonal assessment, $300,000. I also understand that a large amount of money which the capital represents 440 has been used in advertising, etc., and that the $300,000 covers the value of the tangible property. Paragraph 4 of section 3 of chapter 120 Kurd's Eevised Statutes of Illinois of 1903, provides : "The capital stock of all companies and associa- tions now or hereafter created under the laws of this state, except those required to be assessed by the local assessors, as hereinafter provided shall be so valued by the state board of equalization as to ascertain and determine respectively, the fair cash value of such capital stock, including the franchise, over and above the assessed value of the tangible property of such company or association; such board shall adopt such rules and principles for ascertaining the fair cash value of such capital stock as to it may seem equitable and just, and such rules and principles, when so adopted, if not inconsistent with this act, shall be as binding and of the same effect as if contained in this act, sub- ject, however, to such change, alteration or amend- ment as may be found from time to time, to be necessary by said board ; provided, that in all cases where the tangible property or capital stock of any company or association is assessed under this act, the shares of capital stock of such company, or association shall not be assessed or taxed in this state. The clause shall not apply to the capital stock, or shares of capital stock of banks organ- ized under the general banking laws of this state or under any special charter heretofore granted by the legislature of this state: Provided, fur- ther, that companies and associations organized purely for manufacturing purposes, or for the min- ing and sale of coal, or printing or for publishing of newspapers or for the improving and breeding of stock, shall be assessed by the local assessors in like manner as the property of individuals is required to be assessed. The question is decided in the recent case of The Hub v. Hanberg, 211 111., 43 (1904). It was there held that it was the duty of the local assessor to assess 441 the fair cash value of the capital stock, including the franchise, over and above the assessed value of the tangible property of every corporation named in the last proviso to section 4, supra, above quoted, and that the corporations named in that proviso are liable to taxation upon their capital stock, as are other corporations for pecuniary profit, the duty of assessing which is vested in the state board. If the par value of shares is $100 and the market value is $225 this circumstance would aid the state board in determining the fair cash value. That a large propor- tion of the paid in capital has been used in advertising is immaterial. One fifth of the fair cash value of the capital stock and franchise, so fixed, is the assessed value of the same and from this latter must be deducted the assessed value of the corporation's tangible property as fixed by the local assessor of Cook County. Upon the balance, it is the duty of the county clerk of Cook County to extend taxes, at the rate levied for state, county, city, library, educational, sanitary district and park purposes. NOTE: The above was amended in 1905. See Laws of 111. 1905, p. 353. Ed. WHETHER AN INSURANCE BROKER IS ENTITLED TO RENEWAL COMMISSIONS ON FIRE INSURANCE POLICIES, WHEN THESE POLICIES ARE RENEWED THROUGH ANOTHER BROKER. WHETHER BROKER LIABLE FOR RETURN OF UNEARNED PREMIUMS ON CANCELLED POLICIES. (Chas. Emmerich & Co., Aug. 9, 1904.) ' ' A certain insurance brokerage firm in Chicago several years since solicited an opportunity to place insurance for us. We advised them that if they could secure us good companies, we were open for a considerable line. The submitted poli- cies of several companies, from which we selected those which we considered good. Some of these policies we have renewed from year to year. 442 The policies were mainly of surplus line and Lloyd companies, amongst them Lloyds of Lon- don. Recently we had occasion to sever connec- tion with this firm and renewed, as well as bought, additional insurance in the London Lloyds. This brokerage firm now claims that they are entitled to 10 per cent, commission on this renewal and increased insurance, and they claim to have legal advice that the stand they take is correct and they propose to obtain what they claim is their rights. Will you kindly advise us if this brokerage con- cern is entitled to commission on renewal of poli- cies originally obtained through them, but later renewed through another firm? Also kindly advise whether an insurance brokerage firm is liable to us for return premiums on cancelled policies, where the policies were obtained through them and they rendered a bill for same on their own bill head, and not as an agent and where the premiums were paid to and receipted by them as a firm?" "What is understood under the designation of an insurance broker is one who acts as a middle- man between the insured and the company, and who solicits insurance from the public under no employment from any special company, but having secured an order, he either places the insurance with the company selected by the insured, or in the absence of any selection by him, then with the company selected by such broker." Arff v. 8. F. Ins. Co., 125 N. Y., 57, 63. When the broker's employment extends only to the procurement of the policy, his agency is not continuing. It ceases when the purpose of his employment has been accomplished ; that is, upon the execution and delivery of the policy. Am. F. Ins. Co. v. Brooks, 83 Md., 32. Grace v. Ins. Co., 109 U. S., 278. Herman v. Ins. Co., 100 N. Y., 411. A uniform and general usage to pay agents com- missions on renewal premiums for a period after the 443 termination of the agency can become part of the con- tract of agency only when, from all the circumstances surrounding the parties and transaction, it appears that they intended to contract with reference to the usage. Park v. Piedmont & A. L. Ins. Co., 40 Ga., 601. Castleman v. So. Mut. Life Ins. Co., 77 Ky. (14 Bush.), 197. Spaulding v. New York Life Ins. Co., 61 Maine, 329. In Castleman v. So. Mut. Life Ins. Co., supra, the court held that an alleged custom, to allow insurance agents, after discharge, commissions on renewal prem- iums on business obtained by them for three years from the date of renewal, to be invalid, as unreasonable. A renewal is virtually a new contract. Biddle on -Insurance, Sec. 341. To entitle the brokers to commissions on renewals, there must be a provision to that effect in the contract, or there must be a custom so general and notorious that the parties must be presumed to have contracted with reference to it. I know of no such custom. The second proposition is likewise a matter of contract rather than a question of law. There is no custom, that I am familiar with, covering this manner of doing business. The policies disclose what companies are parties to the contract of insurance, and such companies, and not the brokers, are the proper parties to be sued for the return of unearned premiums where the policies have been cancelled, unless the brokers have been empowered to receive notice of cancellations and to receive re- turn premiums for the insured, as agents of the in- sured, and have actually received such return prem- iums, which they wrongfully withhold. In such cases, of course, the brokers may be sued. 444 VALIDITY OF A PKOVISION IN A BILL OF LADING IMPOSING A PENALTY FOR OVERLOADING CARS. (S. P. Shotter Co., August 9, 1904.) An opinion is requested on the validity of a condi- tion in a bill of lading, imposing a penalty for over- loading cars. The condition is as follows: " 2. Cars overloaded more than ten per cent, above their marked capacity will be subjected to a penalty of one and one-half rates to be charged on all weight in excess of marked capacity of car. In addition the expense of transferring the load will be charged against the shipment." The shipment originated and the bill of lading was issued at a point in Mississippi. It is, therefore, a Mississippi contract. To bind the consignee, the con- dition must have been assented to. In Southern Express Co. v. Moon, 39 Miss., 822, at p. 832, the Mississippi High Court of Errors and Ap- peals said: "The public policy on which the extraordinary liability of common carriers is founded is too im- portant to be thus virtually repealed by the fraud and circumvention of artfully-contrived, printed or prepared receipts thrust upon those to whom the hurry and press of railroad travel denies the time of examination, or the opportunity of fair assent. ' ' If the provision in the bill of lading was assented to by the consignee, either personally or by his agent, it constituted an agreement, the validity of which re- mains to be determined from other considerations than those involving the assent of the shipper. If it was not assented to, of course, it is not binding. Where the damage is not readily ascertainable, the parties may agree upon any sum as compensation for the breach of a contract, but the sum agreed upon must not manifestly exceed the amount of the dam- age suffered. Such agreed sum is "liquidated dam- ages." But when the sum agreed upon is manifestly greater than the actual damages and the damages are 445 such as can be readily shown, such sum so inserted in the contract will be regarded merely as a penalty and only the actual damages can be recovered. Scho field v. Tompkws, 95 111., 190. Radio ff v. Basse, 96 111. App., 74. Poppers v. Meagher, 148 111., 192. Gobble v. Linden, 76 111., 157. Morris v. Tillson, 81 111., 607. Reeves, Admr. v. Slipp, 91 111., 609. A penalty is denned in the Ex. p. Burden, 16 Ch. D., 675, as '" something which a debtor is bound to pay, over and above the original liability as a punishment. ' ' In distinguishing between penalties and liquidated damages, due weight is given to the words of the par- ties but the words employed must yield to the general intent. Thus what were denominated liquidated dam- ages by the parties have in many instances been held to be penalties, and the use of the word penalty in the present case is not of itself conclusive. Each case must stand upon its own facts. Keeble v. Keeble, 85 Ala., 552. Jaqua v. Headington, 114 Ind., 309. 19 Am. Encl. (2nd Ed.), p. 401. Where there is no actual damage sustained, or claimed, the sum fixed is a penalty. McCann v. Albany, 11 N. Y. App. Div., 378. I assume that no actual damages, in fact, resulted to the car itself from overloading. Any other dam- ages would be merely nominal, or so indirect and re- mote as not to sustain the theory that the rate and one- half penalty is a liquidated allowance for them. Of this kind might possibly be claimed the increased risk and inconvenience in the operation of trains from an equal distribution of train loads or again the constant but imperceptible injury to the permanent structures of the road (such as bridges, etc.) from a too heavy concentration of weights on a given wheel base. It is clear also that a penalty is intended from the fixing of "rate and one-half" which would be quite dif- ferent in amount with freight of different classifica- tion under the identical condition of overloading. 446 Nor can the penalty be justified as imposed in the interest of "public safety." The power of imposing fines in this behalf is competent only to the public au- thorities. I am of the opinion, therefore, that the charges in question constitute a penalty and cannot legally be collected. If the car at the time of loading be not under the carriers' control or direction (e. g., if it be in the ship- pers' private yard or on his private siding) the pro- vision that "the expense of transferring the load will be charged against the shipment" is not penal, and can doubtless be enforced. THE EFFECT OF THE KECENT DECISION OF THE SUPREME COURT OF KANSAS, IN DEERE PLOW CO. V. WYLAND, UPON THE FOREIGN CORPORATION LAW OF THAT STATE AND AS TO WHETHER FOREIGN CORPORATIONS DOING AN INTER- STATE COMMERCE BUSINESS MUST COMPLY WITH THE KANSAS LAW. (Oliver Typewriter Company, August 18, 1904.) "Our attention has been called to a decision which was rendered on May 7th last by the Su- preme Court of the State of Kansas in the case of the John Deere Plow Company against W. W. Wyland and D. F. Spatz, of Jewell County. If we are correctly informed that decision is to the effect that a foreign corporation which is doing business in the State of Kansas, under the terms of Interstate Commerce and therefore not having complied with the Kansas corporation law, is restricted from the use of the local courts of that State in making collections. If this is the result, we should like to be informed as to how such a corporation can enforce its collections in that State." I am familiar with the opinion of the Kansas Su- preme Court in Deere Plow Co. v. Wyland, and Same v. Spatz, 76 Pac. Eep., 863. It is there held, to quote the syllabus, as follows : 447 ''That part of said section which provides that no foreign corporation doing business in this State shall maintain an action in any of the courts there- of without first filing certain statements with the secretary of state is not violative of the commerce clause of the Federal constitution, even when ap- plied to corporations engaged solely in interstate commerce. ' ' The matter is covered by my opinion of March 24, 1903, to the Association in answer to the query of J. W. Sefton Manufacturing Company. It was there stated that it was beyond the power of a State to interfere with interstate commerce or prevent the enforcement of contracts which are transactions of interstate com- merce. The provision of the Kansas statute construed by the court provided that "No action shall be maintained or recovery had in any of the courts of this State by any corpora- tion doing business in this State without first ob- taining the certificate of the secretary of the state that statements provided for in his section have been properly made." In addition, the statute provided that a foreign cor- poration seeking to do business in the State should make application for permission, etc. The court, in construing these provisions, said : ' ' The only part of the statute affecting the mat- ter now to be determined is that already quoted in full, which merely provided that no foreign cor- poration doing business in the State shall main- tain an action in any of the courts of the State without furnishing certain information regarding its affairs. The restriction is laid, not upon the doing of business, but upon the use of the local courts. In Haldy v. Tomoor-Haldy Company, 4 Ohio, Dec., 118, Bateman v. Western Star Milling Company (Tex. Civ. App.), 20 S. W., 931, and Woessner v. H. T. Cottam & Co. (Tex. Civ. App.), 47 S. W., 678, statutes conditionally denying relief through the courts to foreign corporations en- gaged in interstate commerce were held to be un- 448 constitutional, but in each of these cases the stat- ute refused a remedy because it was invoked in aid of a right that accrued while the corporation was doing business without having met its require- ments, the objection running against the cause of action itself. Here the corporation is placed under a disability to sue upon any claim whatever, so long as it fails to make the statements exacted of it. It may defend itself when attacked, and may even prosecute proceedings in error in this court to review a judgment rendered against it. Swift & Co. v. Platte (Kan.), 72 Pac., 271. Its contracts made during its non-compliance are not held void. The courts do not take jurisdiction of its contro- versies and then determine them against it because of its past attitude ; they merely abate the inquiry until the required statements are made." I do not think the distinction attempted to be made by the Kansas court can be sustained either on princi- ple or authority. While it is true that the State may regulate the practice of its courts, I do not think that it can prevent a foreign corporation, engaged solely in interstate commerce, from suing in the courts of the State. The section of the Kansas statute, above quoted, is, in my opinion, misapplied by the court. It should be construed in connection with the other section which relates to corporations seeking to do business in Kan- sas. If a corporation is engaged solely in interstate commerce, it is not doing business or seeking to do business in Kansas, and therefore the statute in ques- tion can have no application. It must be borne in mind that the plow company in the above case was doing business in Kansas. Although but one transaction appeared from the pleadings, that transaction was not of an " independent, " "isolated," * ' occasional, " " incidental, " " accidental, " or " casual ' ' nature, and the foreign corporation was held to be doing business in the State. The Court said on page 864: "Therefore, although a single act, it constituted a doing of business within the State within the 449 meaning of the statute, while several acts of a dif- ferent nature might not have had the same effect. ' ' To the extent that the foreign corporation was doing business in Kansas and therefore could not maintain its action, the case was correctly decided. Insofar as the statute is held applicable to acts of interstate com- merce, the decision is against the weight of authority, and the construction placed upon it, in my opinion, makes the statute unconstitutional. The statutes have the power to control or regulate the intrastate, but not the interstate, business of a foreign corporation, even though it be a federal corporation, and this may be done either by entirely prohibiting it from doing State business, by requiring a permit for such business for which a license fee may be charged, by requiring the filing with State officials of papers giving information as to the company, or by requiring it to have a known place of business and an authorized agent in the State ; but the States may in no way abridge the right of any foreign corporation to perform within the State acts of interstate commerce. 7 Cyc., 445. Where a foreign corporation sells within the State there is no presumption that the sales are interstate commerce transactions, so as to render inapplicable such a statute. Where it is sought to defeat an action by a foreign corporation in the State courts for the collection of money due it by a citizen of the State upon the ground of non-compliance with the laws regulating the right of foreign corporations to do business in such State, and such corporation relies upon its freedom from any restraints of local law, it should appear (from the pleadings and facts) upon what its claim is based, so that the character of the transaction may be passed upon. Kent & Stanley Company v. Tuttle, 50 Pac. (Mont.), 559. A State law is unconstitutional and void which re- quires a party to take out a license for carrying on interstate commerce, no matter how specious the pre- text may be for imposing it. 450 Crutcher v. Kentucky, 141 U. S., 47. It may be laid down as a general rule, universally applicable to all cases arising under the commerce clause, that whenever the taxation of a commodity would amount to a regulation of commerce so will the taxation of an inseparable incident or necessary con- comitant of such commodity. Erie Railroad Company v. State, 31 N. J. L., 531. The State of Kansas cannot tax a sale made which is a transaction of interstate commerce. The power of collecting the proceeds of such a sale in the local courts is a necessary concomitant of the right to sell. If the amount be less than two thousand dollars the Federal court has ordinarily no jurisdiction. Conse- quently the remedy is in the State courts, or there is no, remedy. The denial of the use of the State courts is a burden placed upon interstate commerce, and States cannot, by legislation, place burdens upon commerce with foreign nations or among the several States. The decisions go to tha.t extent, and their soundness is not questioned. Sherlock v. Ailing, 93 U. S., 99, 102. The Court admits that, "The contention that the statute in question is not to be construed as applying to foreign corporations engaged wholly in interstate commerce finds some support in the authorities. * Such of them as hold that, properly interpreted, the statutes do not apply to corporations engaged in inter- state commerce, reach that conclusion only by a vigor- ous application of the principle that, if possible, a con- struction should be adopted that will avoid interference with the Federal Constitution." Interference with the Federal Constitution must be avoided, but it was never intended, in conferring upon Congress the regulation of commerce, to cut the States off from legislating on all subjects relating to the health, life and safety of the citizens, though the legis- lation might indirectly affect the commerce of the coun- try. Sherlock v. Ailing, supra. The Court relies upon its former decision in State ex rel. v. Book Company, 65 Kas., 847, 69 Pac., 563, as upholding the theory that the requirements of the act are not burdens upon commerce, but measures of pro- tection to the people of the State. In that case the Court said: 1 ' The claim that because the defendant company is engaged in interstate trade it cannot be sub- jected to the regulations of the statute of 1898 is untenable. It may be that it cannot be excluded from doing interstate business here, but it can be laid under such reasonable conditions as the filing of its charter, the payment of charter fees, the making of reports and furnishing of information concerning its business, the appointment of agents to receive services of process, etc. These are not burdens on commerce. They are measures of jus- tice and protection to the people of the State. ' ' Here the corporation was "seeking to do business in the State," and had actually done business in the State. The decision in this case, like the one under discussion, was probably correctly decided on its own facts, but the opinion foreshadows the attempted dis- tinction of the later case. The distinction that the restriction is laid not upon the doing of business but upon the use of the courts is based upon a sub-distinction that the foreign cor- poration may use the courts as a defendant. "It may defend itself when attacked," says the Court, "and may even prosecute proceedings in error in this court to review a judgment rendered against it." That is, it may do those things that a defendant may do. It is qualified as a defendant not through comity toward it, but as a measure of protection to the people of the State. If the citizens of Kansas may sue it, and if it is without redress in collecting debts due it from them, it is hard to imagine a more effective barrier to interstate commerce. The Court brushes aside Haldy v. Tomoor-Baldy Co., 4 Ohio Dec., 118, and Bateman, etc., Co. v. Western, etc., Milling Co., 20 S. W., 931 (both cited by me in the 452 former opinion), as well as Woessner v. H. T. Cottam & Co,, 47 S. W., 678, as not furnishing the rule here for the reason that "in each of these cases the statute refused a remedy because it was invoked in aid of a right that accrued while the corporation was doing business without having met its requirements, the objection running against the cause of action itself. Here the corporation is placed under a disability to sue upon any claim whatever, so long as it fails to make the statements exacted of it." In Haldy v. Tomoor- Haldy Co., supra, the Ohio court said: "The business done here was interstate com- merce, and the provisions in our statute that no foreign corporation, unless it complies with cer- tain State regulations (to file certain papers), shall have the right to transact such business, as that if it does it shall not be allowed to maintain an action with reference to the same, are null and void, because in violation of the commerce clause of the Federal Constitution. These propositions are so well settled by the authorities that any fur- ther discussion of the principles there declared is entirely unnecessary." In Bateman v. Western, etc., Milling Co., supra, the Texas Court of Appeals held that the statute requiring foreign corporations to file their articles of incorpora- tion as a condition precedent to transacting business or maintaining an action in that State, had no applica- tion to foreign corporations engaged in purely inter- state commerce. That Court said : "The principle is well established and it rests purely within the discretion of a State to recognize or to repudiate a foreign corporation ; that it can, if such be its pleasure, exclude such a corporation entirely, or admit it conditionally. This principle, however, is not of universal application. A very emphatic and well-fixed instance in which it does not obtain is where a foreign corporation is engaged in interstate or foreign commerce." To the same effect are the decisions of the Supreme 453 Court of Alabama in Ware v. Shoe Co., 9 So. Rep., 136, and of the Supreme Court of New Mexico in Manufac- turing Co. v. Hardee, 16 Pac. Rep., 605. Woessner & Cottam, supra, is distinguished by the Kansas Court in the light that the Texas statute denied the corporation (on failure to pay a franchise tax) the right "to sue or defend" in any of the courts of the State. The point is not well taken that the Kansas statute as applied by the Supreme Court of that State, differs in principle from the statute in the case last cited, and that it places no burden on commerce because the corporation may defend (citing Swift v. Platee, 72 Pac., 270). Although invited so to do by the text of the Texas statute, the Court of Appeals did not sep- arate the capacity to sue from the capacity to defend. It held squarely, "Insofar as the statute in question relates to interstate commerce it is void and cannot be enforced. ' ' The Supreme Court of Kansas confuses two powers, viz. : The control of commerce and the control of cor- porations. The facts of Ashley v. Ryan, 49 0. State, 504, cited by the Kansas court, were different toto coelo from a mere act of interstate commerce by a foreign cor- poration. In Ashley v. Ryan the real question was of the grant of the right to be a corporation. A foreign corporation engaged in interstate commerce sought to avail itself of a privilege of consolidation with an Ohio corporation under Ohio statutes, without paying the usual fees, on the ground that the fees were a tax on interstate commerce, and the Ohio court very properly held that the State was under no duty to create agencies of any kind for the facilitating of interstate commerce. The Supreme Court of the United States, 153 U. S., 436, in affirming that decision, held that it was not a question of State regulation of interstate commerce, but a question of the right of the state "to determine upon what conditions its law as to the consolidation of corporations may be availed of." The Kansas court paraphrases the language of Ashley v. Ryan, as follows : 454 "The question here is not the power of the State of Kansas to lay a charge on interstate com- merce within its confines, but simply the right of the State to determine upon what condition its laws as to the enforcement of rights through its courts may be availed of. ' ' In my opinion the courts are not ejusdem generis or in the same category with the instrumentalities and agencies the use of which a State is under no duty to extend to interstate commerce. If interstate commerce is privileged its necessary corollary, the right to sue for the proceeds of interstate sales is also privileged. The right to sue is a property right essential to the enjoyment of property. Where a State conceded the right to defend, it only half meets the requirements of the 14th Amendment to the United States Constitution. It is a deprivation of property without due process of law where the disqualification to sue grows out of the failure to do that which the State has no power to exact. " It is now settled that corporations are persons within the meaning of the constitutional provision forbid- ding the deprivation of property without due process of law, as well as a denial of the equal protection of the law." Covington, etc., Co. v. Sanford, 164 U. S., 578. The State has power of course to regulate the prac- tice of its courts. "The statute," says the Kansas court, ' ' merely provided that if they wish to make use of the machinery of the State courts for their own bene- fit they must do so upon the same terms as other cor- porate suitors." That is, they must strip themselves of their Federal immunity and by accepting the ' ' same terms" waive the very point in dispute. Where the foreign corporation is seeking to do busi- ness in the State, a statute that requires as a condition precedent the surrender of a right or privilege secured by the Constitution and laws of the United States is unconstitutional and void. Southern Pacific Company v. Dent on, 146 U. S., 202. Smith v. Ames, 169 U. S., 466, 526. 455 Ins. Co. v. Morse, 20 Wall., 445. Barren v. Burnside, 121 U. S., 186. Tex. Land, etc., Co. v. Worsham, 13 S. W. Rep., 384 (Texas). In Land Co. v. Worsham, the corporation was organ- ized under the laws of the Kingdom of Great Britain and Ireland. The Texas statute provided that removal of a cause to a Federal court should forfeit the permit to do business. The Court said : "We do not think that failure of the corporation to procure a permit, even if such failure had the effect of preventing it from further prosecuting its business in this State, should have the further effect of closing the courts of the State to it so as to preclude it from asserting rights and recover- ing property already acquired." In Kindel v. Beck & Pauli Lithographing Co., 35 Pac., 538, where the lithographing company, a foreign cor- poration, brought suit on a contract, the Colorado Supreme Court said : "The first defense is based upon the failure of appellant, a corporation organized under the laws of another State, but doing business in this State, to file a certificate as required by Section 10, Article XV, Constitution, and by Sections 399, 500, Mills' Ann. St. Although by such failure all offi- cers, agents and stockholders of the company sub- ject themselves to certain personal liabilities, it is no defense to the present action. In this case appellee contracted to make the calendars at its place of business in Wisconsin, and to de- liver them to appellant in Colorado. To give the State Constitution and statutes the construction claimed by appellant would be to permit a State to regulate commerce between the States, author- ity for which is conferred exclusively upon Con- gress." In Erie Ey. Co. v. The State, supra, the Court said : "A statute that should abolish the rule of com- ity, and should refuse a recognition of foreign corporations, would, it is conceived, have this ef- 456 feet and no more, i. e., to convert the foreign cor- porators, as to the State enacting the supposed law, into a partnership of individuals; and thus, although the corporation as such could not, by suit or otherwise, assert its rights to protect its property, the members of the company would be under disability. ' ' Chief Justice Ryan, in Charter Oak Life Ins. Co. v; Sawyer, 44 Wis., 388, said : "It would be intolerable injustice if a creditor corporation in one State could not sue its debtor in another. Such corporations, denied judicial process against their debtors in the courts of their debtors' domicile, might well exclaim, as Chan- cellor Kent (quoting the Aeneid), I think, once said: Quod genus hoc hominum? Quaeve hunc tarn barbara morem permittit patria. Hospitw prohibemur arenae." Conclusive, in my opinion, of the unsoundness of the Kansas decision is McNaughton Co. v. McGirl, 49 Pac., 651 (cited in my prior opinion), where the Supreme Court of Montana held the provisions of the Montana foreign corporation statute inapplicable to a purely interstate corporation. In that case the Court said : "We are aware that the construction put upon section 2, Article IV of the constitution of the United States, which provided that the citizens of each State shall be entitled to all privileges and immunities of the citizens of the several states, has been generally uniform, to the effect that the language of that clause relates only to natural per- sons, and not to artificial bodies, as corporations, and that the privileges and immunities guaranteed by the language referred to mean those of the gen : eral nature granted to a State's own citizens, and not those special privileges conferred upon cor- porate bodies. (Citing authorities.) But in the carrying on of interstate commerce, corporations are guaranteed the same rights and are entitled to the same protection as individuals. The Su- 457 preme Court in Gloucester Ferry Company v. State of Pennsylvania, 114 U. S., 204, 5 Sup. Ct., 826, expressly held that it did not make any differ- ence whether such commerce is carried on by in- dividuals or by corporations. Justice Bradley, sit- ting on the circuit bench, in the case ofStockton v. Railroad Company, 32 Fed., 9, used the following language : ' And in carrying on foreign and inter- state commerce, corporations equally with indi- viduals are within the protection of the commer- cial power of Congress, and cannot be molested in another State by state burdens or impediments. This was held and decided in the case of Glouces- ter Ferry Company v. State of Pennsylvania, 114 U. S., 204, 5 Sup. Ct., 825, and affirmed in the re- cent case of Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S., 326, 7 Sup. Ct., 1118; and although the decision in Paul v. Virginia, 8 Wall., 168, conformed to the doctrine of Bank v. Earle, the following striking language was used by the court, to-wit: "At the time of the formation of the constitution a large part of the commerce of the world was carried on by corporations. The East India Company, the Hudson Bay Company, the Hamburgh Company, the Levant Company and the Virginia Company may be named among the many corporations then in existence which ac- quired from the extent of their operations, celeb- rity throughout the commercial world. This state of facts forbids the supposition that it was in- tended, in the grant of power to Congress, to ex- clude from its control the commerce of corpora- tions. The language of the grant makes no refer- ence to the instrumentality by which commerce may be carried on. It is general, and included alike commerce by individuals, partnerships, asso- ciations and corporations." We may fairly sup- plement this language by adding that, when the constitution was adopted it could not have been supposed that the relations of commerce to be made by Congress might be of no avail to commer- 458 cial corporations, or at least might be rendered nugatory, with regard to them, in consequence of State restrictions upon their power to act as cor- porations in any other State than that of their origin.' We may therefore proceed with the in- vestigation of the case, relying upon the truth of the proposition that, if the transactions between the plaintiff and the defendant in this case were commerce between the several States, Congress alone could regulate such commerce under the con- stitution of the United States, and the State had no power to regulate that commerce, or impose any obligation or exaction upon the plaintiff which it could not impose or exact upon an individual tran- sacting the same business. The argument that a foreign corporation has its domicile in the State from which it derives its ex- istence, and that its right to transact business else- where, and to enforce its contracts made in other States, depends purely upon the comity of those States, is not pertinent. The power of a State to make discriminations in privileges granted to foreign corporations may be exercised where a foreign corporation desires to do business with- in the limits of the State, not strictly interstate or foreign commerce. No construction can be put upon the statute of Montana which would render such a contract void without invading the exclusive right of Congress. If, therefore, this contract sued upon was lawfully made, notwithstanding a statute which declares or attempts to declare it void, it follows that any legislation of the State which seeks to prevent the enforcement of the contract is equally an invasion of the exclusive right of Congress. It must be true that if the State cannot declare the contract void, it cannot prevent the enforcement of the contract." I am of the opinion, therefore, that the decision in the particular case was probably correct, viz.: That the plaintiff in the particular case was doing business 459 in Kansas, and on that account could not maintain its action, but insofar as the decision holds that a for- eign corporation engaged solely in interstate commerce cannot maintain an action in the courts of the States, it is unsound. Nevertheless, it is the law of Kansas unless reversed by the court which rendered it, or by the Supreme Court of the United States. Of course, if the amount of two thousand dollars is involved, the matter can be adjudicated in the Federal courts, where the State decision will not be binding. NOTE: See, also, the opinion of April 20, 1907, for the Electric Appliance Co. in reference to the foreign corporation law of South Dakota and as to the advisability of compliance therewith in view of the decisions of the South Dakota courts ; the South Dakota courts having followed the Kansas case of Deere v. Wyland, above referred to. Ed. WHETHER MANUFACTURER OR DEALER IS LIABLE FOR DAM- AGES WHEN GOODS ARE INCORRECTLY LABELED. (George E. Watson Company, August 18, 1904.) "We handle a line of varnishes of different color put up in sealed cans and labeled by another manu- facturer. We sold a customer a gallon of these goods supposed to be of a green color, and so la- beled. He sent them to a contractor who was fin- ishing some woodwork for him and told him to use these goods. The contractor did so, but it de- veloped on opening the can, that the goods were labeled wrong and that they contained a brown col- ored varnish instead of green. The contractor stained and varnished the woodwork with the brown material and our customer claims damages from us on account of the can being labeled wrong. We contend that if there is any responsibility at- tached, it is to the manufacturer and not to the party who sold the goods. ' ' As I understand the facts, from the above and other correspondence sent me, the manufacturer labels his cans, numbering them to correspond with a sample board furnished the dealer; the dealer sold the stain in question from the sample board marked with the same name and number as the can. The stain has no resemblance to the sample board. Where the manufacturer carelessly labels an article that is dangerous in itself, he is liable in tort, aside from any question of contract : Pollock on Torts, p. 413. Sutherland on Damages, p. 77. In this instance no action of tort will lie against the manufacturer at the suit of the consumer, for a breach of a general duty to the community at large imposed by the nature of the article itself, the stain being in and of itself not dangerous. The manufacturer is not, therefore, in the position of one who has unchained a dangerous agency without notice of its dangerous char- acter, nor does it appear that the can of varnish was fraudulently labeled. Nor is there any contract liability of the manufacturer to the consumer. There is privity of contract between the dealer and the consumer and again between the dealer and the manufacturer, but none between the consumer and the manufacturer. The consumer, if himself free from negligence, has an action against the dealer for the damages actually sustained. The dealer can in turn recover his damages from the manufacturer. RIGHT OF THE WISCONSIN FOOD COMMISSIONER TO PROHIBIT THE SALE OF LEMON EXTRACT WHICH IS NOT EQUAL TO THE STANDARD FIXED BY THE FOOD COMMISSIONER WHERE THE LABEL ON THE BOTTLE IN WHICH THE EXTRACT IS CONTAINED TRULY STATES THE INGREDIENTS. (Illinois Mfrs. Assn., October 5, 1904.) The Food Commissioner of the State of Wisconsin has made a ruling in reference to lemon extracts as fol- lows: "Extracts. Artificial extracts can be manufac- tured and sold only in cases where it is not possible to produce an extract from the fruit itself. Ex- tracts of this class must be distinctly labeled as ' 'Artificial Extracts.' 461 Extract of lemon, essence of lemon or spirits of lemon, sold as such, must contain at least five per cent, of the pure oil of lemon dissolved in ethyl alcohol. Such mixtures or compounds as 'water soluble lemon flavor' or 'terpeneless lemon flavor,' made from lemon peel or from oil of lemon, or both, must not be sold as 'extract of lemon' or 'essence of lemon' or 'spirits of lemon'; but if of equiva- lent strength and labeled, branded or tagged in a manner showing their exact character and com- position and approved by the dairy and food com- missioner of the state, and not containing any pois- onous or deleterious ingredients will be recognized as legitimate substitutes and when sold as articles of food under their own distinct names as stated above and not under the name of any other arti- cle of food, such sale will not be contested by this commission as unlawful." The laws of Wisconsin under the authority of which the above ruling has been made, provide : "Sale of Adulterated Articles; Definitions. (Sec- tion 4600, Statutes of 1898.) Any person who shall, by himself, his servant or agent, or as the servant or agent of any other person, sell, exchange, de- liver or have in his possession with intent to sell, exchange, offer for sale or exchange any drug or article of food which is adulterated, shall be fined not less than twenty-five dollars nor more than one hundred dollars or be imprisoned in the county jail not less than thirty days nor more than four months. The term 'drug,' as used in this section, shall include all medicines for internal or external use, antiseptics, disinfectants and cosmetics. The term 'food', as used herein, shall include all articles used for food or drink by man, whether simple, mixed or compound. Adulteration, what Is. (Section 4601, statutes of 1898, as amended by Chapter 133, Laws of 1903.) An article shall be deemed to be adulterated within the meaning of the preceding section : 462 1. In the case of drugs: First, if, when sold under or by a name recognized in the United States pharmacopoeia, it differs from the standard of strength, quality or purity laid down in the latest current edition thereof ; second, if when sold under or by a name not recognized in said pharmaco- poeia, but which is found in the pharmacopoeia of some other country, the national formulary or other standard work on materia medica, it differs materially from the standard of strength, quality or purity laid down in the latest current edition of such work ; third, if its strength, quality or purity falls below the professed standard under which it is sold. 2. In the case of food : First, if any substance or substances have been mixed with it, so as to lower or depreciate or injuriously affect its strength, quality or purity; second, if any infe- rior or, cheaper substance or substances have been substituted wholly or in part for it; third, if any valuable or necessary ingredient has been wholly or in part abstracted from it; fourth, if it is an imitation of, or sold under the name of another article; fifth, if it consists, wholly or in part, of a diseased, infected, decomposed, putrid, tainted or rotten animal or vegetable substance or article, whether manufactured or not; sixth, if it is col- ored, coated, polished or powdered, whereby dam- age or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; seventh, if it contains any added sub- stance or ingredient which is poisonous, injurious. or deleterious to health, or any deleterious sub- stance not a necessary ingredient in its manufac- ture; Provided, that articles of food which are labeled, branded or tagged in a manner showing their exact character and composition and approved by the dairy and food commissioner of the state, and not containing any poisonous or deleterious ingredient, shall not be deemed adulteration in the case of mix- 463 tures or compounds sold under their own distinct names or under coined names and which articles, if substitutes, are not in imitation of, or sold under the name of any other article of food; and Provided, further, that nothing in this act shall be construed as requiring or compelling proprie- tors or manufacturers of proprietary foods to dis- close their trade formulas, except so far as may be necessary to secure freedom from adulteration, imitation or fraud." The sample of the extract of lemon here in question was submitted to the Food Commissioner for analysis. The analysis showed: % " Total residue 0.18 Alcohol (by wt.) 28.0 Lemon oil trace Color none It was ruled that the extract was not a true extract of lemon. My opinion is asked upon the foregoing facts as to whether or not the Food Commissioner of Wisconsin has the power to prohibit the sale of an extract similar to that analyzed and sold under the name of " extract of lemon" and which extract is not equal to the stand- ard fixed by the Food Commissioner, in a case where the bottle in which the extract is contained truly states the ingredients thereof. It is an important part of my premises that I am assuming that the sample in ques- tion was "an inferior or cheaper substance." As a general rule a lawful article of commerce can- not be wholly excluded from importation into a state from another state. A state, however, has the right, under its police power, to regulate the introduction of any article of food so as to insure the purity of the article. Schollenberger v. Pennsylvania, 171 IT. S., 1, and cases there cited. The state has the right to prohibit the sale of articles of food which are adulterated, or of articles sold under a false designation or name. The purpose of such 464 law is to protect the health and prevent the decep- tion of the public. It is a clear exercise of police power. The present law does not fix any particular standard for "extract of lemon." It prohibits adulteration of any food product. The standard has been fixed by the Food Commissioner of the state, and I assume fixed in accordance with the standard stated in the United States pharmacopoeia. If the article sold is not adul- terated, within the meaning of Section 4601 above quoted, the commissioner's action is futile and the sale of extracts below that standard is not unlawful and cannot be prohibited. I understand, however, that "extract of lemon" or "essence of lemon" is defined in the United States pharmacopoeia, and that the formula there given is the same as that adopted by the Food Commissioner. By that formula it appears that it is necessary to have five per cent, of lemon oil in the lemon extract, and a sufficient quantity of alcohol to cut or dissolve the oil. In People v. Jennings, 94 N. W., 216, the Supreme Court of Michigan passed upon a law precisely similar to the Wisconsin law under consideration. (The pres- ent law is evidently taken from the Michigan law.) The defendant was convicted of selling a compound as a lemon extract which was adulterated within the meaning of the law. The defense was that one of the properties of the lemon oil, viz., terpenes, had been extracted therefrom for the betterment of the extract, and that the article sold was in fact an improvement in extract of lemon. The first question passed upon by the court was whether the pharmacopoeia formula was to be considered as defining lemon extract. The court said (p. 218) : "The statute defining what shall be deemed adulteration, so far as it relates to this case, declares that an article shall be deemed adulterated when : ' First, if any substance or substances have been mixed with it, so as to lower or depreciate or injuriously affect its quality, strength or purity ; second, if any inferior or cheaper substance or sub- 465 stances have been substituted wholly or in part for it ; third, if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it ; fourth, if it is an imitation of, or is sold under the name of another article ; * * sixth, if it is colored, coated, polished or powdered whereby damage or inferiority is concealed, or if by any means it is made to appear better or of a greater value than it really is ; seventh, if it contains any added substance or ingredient -which is poison- ous or injurious to health.' Comp. Laws. Sec. 5012. We are agreed with the circuit judge that in referring to articles of food, and to protect the users thereof, the legislature must have had in view some standard ; and, as lemon essence or lemon ex- tract had heretofore acquired a well-defined mean- ing, we incline to the view that it is proper to re- sort to the pharmacopoeia formula for the purpose of determining ivhat lemon extract consists of." The court then held that it was open to manufac- turers to improve an article of food so long as no infringement of the law takes place. On this point the court said : "According to the proofs offered by the defend- ant, it is very clear in the present case no substance or substances have been mixed with this extract so as to lower or depreciate or injuriously affect its quality, strength or purity. ' ' Upon the question of adulteration the court said : "As to the second condition, which amounts to adulteration, the case is not so clear. This pro- vides that, if any inferior or cheaper substance or substances have been substituted wholly or in part for it, it shall amount to adulteration. We think, however, this provision should be read in connection with the succeeding one, to wit, 'if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it.' So construed, the provision prohibiting the substitu- tion of any inferior or cheaper substance, wholly or in part, for it, means the substitution for an 466 essential ingredient of such cheaper or inferior substance. Now, if it be a fact, as the testimony on the part of the respondent tends to show, that it is a positive advantage to exclude the terpenes wholly from the extract, and to lessen the quantity of alco- hol used, then the essential ingredients of lemon extract have not had substituted for them anything inferior or cheaper. We are aware that this view of the law makes it more difficult to establish the individual case, but, as the statute is a penal statute, it should receive a strict construction. It follows from the views above expressed that the instruction of the learned circuit judge was erroneous, inasmuch as the jury were told, in effect, that if any ingredient of lemon essence, as defined by the pharmacopoeia, was wanting in this extract sold by the respondent, there should be a conviction. We think the instruction should have been that if the lemon extract sold by the respond- ent contained all the ingredients, and in quantities such as prescribed by the pharmacopoeia, which are adapted to use as food, and that nothing was eliminated except such ingredients as could be dis- pensed with without injury to the product as a food product, there was no violation of the statute." The United States Pharmacopoeia is referred to in subdivision 1 of section 4601 of the Wisconsin law. In the case under consideration there is in the ex- tract, according to the result of the analysis, a mere trace of lemon oil, and also a deficiency in alcohol. The question remains to be considered whether in its pres- ent form the sale is prohibited by the law in question. Section 4601 provides that food is adulterated : (1) "If any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect its strength, quality or purity,'' or (2) "If any inferior or cheaper substance or substances have been substituted wholly or in part for it," 467 or, (3) ''If any valuable or necessary ingredient has been wholly or in part abstracted from it," or (4) "If it is an imitation of, or sold under the name of another article," or (6) "If it is colored, coated, polished or pow- dered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is." The proviso excepts articles of food which are labeled, branded or tagged in a manner showing their exact character and composition, and approved by the Dairy and Food Commissioner, where such articles are sold under their own distinct names or under coined names, if such articles, if substitutes, are not in imitation of or sold under the name of any other article of food. The present article is sold as lemon extract when in fact, according to the commissioner's standard and that defined in the pharmacopoeia, it is not a lemon extract. It therefore comes within the letter of the express pro- hibition of the law. It cannot be classed as a substitute for the reason that it is sold under the name of the article itself. The law does not prohibit its sale abso- lutely (unless there is something deleterious to health in its ingredients), but only prohibits its sale as an article which it is not. The Supreme Court of Michigan, in People v. Jen- nings, supra, said: "It is open to manufacturers to improve a com- mon article of food, so long as no infringement of the law or spirit of the act defining what shall be deemed adulteration takes place," And, again: " If it be a fact, as the testimony on the part of the respondent tends to show, that it is a positive advantage to exclude the terpenes wholly from the extract, and to lessen the quantity of alcohol used, then the essential ingredients of lemon extract 468 , have not had substituted for them anything infe- rior or cheaper." As far as I can make out from the facts submitted to me, I do not understand that it is contended that the extract in question is an improvement upon "extract of lemon," as defined in the pharmacopoeia, or that the ingredients required to constitute the extract, as de- nned by that treatise, are excluded from the sample under consideration so as to create "a positive ad- vantage. ' ' In other words, if the sample did not ex- clude ingredients which are essential to "lemon ex- tract," or was an improvement upon "a common arti- cle of food," then the present inquiry would involve a question of fact and not of law, and would call for a different conclusion under the Michigan decision above quoted. The tendency of the judicial tribunals of this country is very strong towards upholding legislation of the kind under consideration. There are several serious questions here involved which cause grave doubt in my mind, and have led to some delay in formulating these views. I want to emphasize that I assume that the pharma- copoeia applies to the matter under consideration. The statutes of Wisconsin permit the commissioner to have recourse to the United States Pharmacopoeia in the case of "drugs." In the section referring to "food" it will be noticed that the pharmacopoeia is not made the standard. If, therefore, the standard which the commissioner adopted is not such as properly applies to lemon extract as an article of food, a different ques- tion would present itself. The Wisconsin statute expressly defines the term "drug" as including medicines for internal or external use, etc., and the term ' ' food ' ' as including articles used for food or drink by man. If it can be successfully shown that the Wisconsin commissioner has applied to extract of lemon, as an article of food, a standard which is not properly applicable thereto, then, as I have said, an entirely different question arises. It will be noted also that the pharmacopoeia, as I 469 am advised, refers only to spiritus limonis, or essence of lemon. If it be a fact that extract of lemon, as an article of food, is a different article from spirits of lemon, as referred to in the pharmacopoeia, then again, a further question arises. Though it is with much hesitancy that I express an opinion upon the assumptions hereinbefore contained, I am inclined to the view that the chance is against a successful attack being made in the present case. There is, however, so much doubt involved that in my judg- ment, if the labor and expense are not sufficient to deter, a test case ought to be made. LIABILITY OF AN EMPLOYER FOR PHYSICIANS CHARGES FOR VACCINATION OF EMPLOYEE, OR FOR DAMAGES FROM UNSATISFACTORY VACCINATION. (Rubber Paint Company, Nov. 3, 1904.) "Having a number of employees, and realizing the need at this time of having them vaccinated, would like the legal opinion as to our liability should we pay a physician for vaccinating our em- ployees in case said vaccinations should not turn out satisfactorily, infection set in or something of that kind." There is no obligation on the part of the employer to furnish medical assistance to those in his service. If the employer does so he is not ordinarily liable for the malpractice of the physician or surgeon. In such a case the law requires only that reasonable care and caution should be exercised by the employer in the selection of the physician or surgeon. The physician or surgeon must possess that degree of skill or knowl- edge ordinarily possessed by members of the profes- sion. The selection must be a prudent one, made with care, but the employer is not liable if the physician or surgeon errs in judgment or makes a mistake in treat- ment. The responsibility extends no further than to require reasonable care in the selection of the physi- cian or surgeon. Cummings v. Railway Co., 89 111. App., 199. 470 WHETHER A COMPANY IS LIABLE FOR GOODS DESTROYED WHILE IN ITS CARE FOR THE PURPOSE OF BEING RE- PAIRED. (Studebaker Bros. Manufacturing Company, Novem- ber 7, 1904.) "As a member of your organization, we would like to have you obtain from the general counsel an opinion that we think will interest a number of the members of the organization. What we wish to ascertain is the following: Where vehicles are received in a repair shop, for alterations or re- pairs of any kind, and are burned while in the repair shop, is the owner of the repair shop liable for their value? In other words in the event of a fire in our repair shop, in which case a large number of vehicles, not our own, are burned up, would we be liable?" The company occupies, with respect to the vehicles left at its shop for repairs, the position of bailee. When the bailment is reciprocally beneficial to both parties, as in the present case, the bailee is required to exercise only ordinary care and diligence and is answerable only for ordinary neglect. The bailee, in the absence of a special agreement, is not an insurer of the chat- tels entrusted to his care, and is liable only where a loss occurs on account of a failure to exercise ordinary care. Ordinary care is such a care as a person of ordinary caution would exercise in regard to the prop- erty. It follows, therefore, that where the bailment is destroyed by a fire which no ordinary prudence could guard against, or prevent, the bailee will not be responsible for a loss occasioned without his fault. 3 Ency. of Law (2nd Ed.), p. 747. Russell v. Koehler, 66 111., 459. Standard Brewery v. Malting Co., 171 111., 602. 471 WHETHER A SALESMAN AUTHORIZED TO SELL GOODS AND COLLECT ACCOUNTS HAS THE IMPLIED POWER TO ENDORSE HIS PRINCIPAL'S NAME UPON CHECKS. (McNeil & Higgins Company, November 8, 1904.) "Our company would like to have the opinion of the lawyer for the association on the right of a salesman authorized to sell goods and collect ac- counts, who receives checks payable to the order of his principal, as to whether said salesman has the implied power to endorse the name of his principal upon such checks as he may receive and secure the cash on said checks. If the bank pays the check on the endorsement of the salesman without knowledge on the part of the principal and the salesman embezzles the money, could the bank be compelled to pay the check again to the proper party? We feel sure that this question is one that would be of great interest to your members, and trust that we will receive an opinion at an early date." The question must be determined by the extent of the authority of the salesman or agent to endorse checks. The authority may be either express or im- plied. I assume that no express authority was con- ferred. Authority to endorse commercial paper can only be implied where the agent is unable to perform the duties of his agency without the exercise of such authority, or where the power is a manifestly neces- sary and customary incident of the position occupied by the agent, and where the power is practically indis- pensable to accomplish his duties. In other words, the power of an agent to endorse commercial paper for his principal must be a necessary implication from an express authority conferred on the agent. Authority may be presumed from previous dealing and acts of recognition of authority in former in- stances, but to bind the principal these acts of recog- nition must be known to the party dealing with the agent. 472 That is to say, where a party accepting a check or note payable to the principal and endorsed by an agent, maintains that the agent had apparent author- ity to make such endorsement, he must prove that the facts, giving color of authority to the agent, were known to him. If such person had no knowledge of such facts he can not have acted upon them and is consequently not in a position to rely on such apparent authority. I am of the opinion that a salesman employed to sell and take orders for goods, to collect accounts and receive money and checks payable to the order of his principal, is not by implication authorized to endorse his principal's name to checks. The endorsement of a check is not a necessary incident to its collection. A person dealing with an agent takes the risk as to the extent of his authority and is bound to make in- quiries in regard thereto. The bank in question can, therefore, in my opinion, be compelled to repay the amount of the check to the principal unless it be proved that the principal has ratified prior acts of endorse- ment on the part of the agent, and that the bank had knowledge of such facts at the time it paid the check. Subsequently acquired knowledge will not suffice. The burden of proving that an agent has authority to en- dorse the check is upon the party who asserts the existence of such authority. Jackson Paper Co. v. Commercial National Bank, 199 111., 151. Sinclair v. Goodell, 93 111. App., 593. WHETHER PICKETING BY LABOR UNIONS IS LAWFUL. (Illinois Malleable Iron Co., November 10, 1904.) "Did you notice in this morning's paper that the Teamsters ' Union are going to send out pickets all over the city to stop every teamster and see that he has taken a fresh union card or a card at all, make them join the union if they did not belong and make them pay up their dues if they did 473 belong; that they have lost 10,000 of their member- ship because it had been out one-third or one-half (the writer is not sure what the article said) and caused a loss of 10,000 out of 20,000 or cut their membership to 10,000. It strikes the writer that this is a good time for us to act and to get an injunction against their sending out these pickets to make trouble; that if the men are tired of it and want to drop it don't let them be interfered with. The name of some non-union teamster can be taken to secure injunc- tions against the various unions and let any per- sons who are acting as pickets be arrested; in fact the association ought in conjunction with other employers' associations to have detectives working at once so as to secure the arrest of these pickets who are interfering with the teamsters. Will you take it up with the various associations?" Picketing is not in itself unlawful, but when accom- panied by threats, abusive epithets or intimidation it becomes unlawful. In Beaton v. Tar rant, 102 111. App., 124, the rule is laid down : 1 ' Workmen may use the streets and highways in a manner not inconsistent with public travel, for the purpose of entreaty, inducement and peaceful persuasion in good faith, and a patrol or picket may not necessarily imply force or a threat of bodily harm; but to accomplish their purposes they may not overstep the bounds and use threats, abusive epithets or intimidation, or congregate in such number or in such manner or with such a show of force, as is calculated to intimidate a rea- sonable and prudent man, and no harm can result in granting an injunction to restrain such unlawful conduct. ' ' And in Christensen v. Kellogg Switchboard & Supply Co., 110 111. App., 61, the rule is reiterated : "It is urged that the injunction order should be so modified as not to restrain the maintenance of a picket or patrol, which it is said is not unlaw- 474 ful. It is, we think, true that picketing or patrol- ling, when the terms are used to designate mere watching or being in the street, should not be enjoined. The terms themselves are of military origin and apply to acts customary in time of war. Nevertheless there may doubtless be picket- ing and patrolling which are not unlawful. But the picketing described in the bill before us is not of that character. It is, as we have said, accom- panied with the use of force and violence, and it is the kind of picketing and patrolling described in the bill of complaint which is enjoined. ' ' In the same case it is stated : "It is upon the ground of injury to property rights that the jurisdiction of equity to interfere by injunction rests." I am not sufficiently familiar with the facts in the present case to determine whether the methods adopted by the pickets are such as to make their action unlawful. If threats, violence or intimidation are used, or if a number of pickets congregate in such a manner as is calculated to intimidate a reasonable and prudent man, such picketing becomes unlawful. Assuming that the picketing in question is unlawful, the question arises: Is there a property right involved, of such a nature that a court of equity will take jurisdiction to restrain the continuance of such unlawful acts by injunction! The right to labor is a property right. If the acts of the pickets are of such a nature that the employe is hindered from pursuing his lawful occupation, his right to labor is interfered with and he is injured in a property right. I am, therefore, of the opinion that a court of equity has jurisdiction of such a case if the acts are sufficient to bring it within the rules above referred to, but' whether the matter is one that the Illinois Manufac- turers ' Association should take up alone or in conjunc- tion with other associations is a matter for the Board of Directors to decide. 475 WHETHER A THROUGH FREIGHT RATE GREATER THAN THE SUM OF TWO LOCALS IS A VIOLATION OF THE INTER-STATE COMMERCE LAW. (Hunt, Helm, Ferris & Co., November 10, 1904.) 1 ' We would like to have you submit to Mr. Levy Mayer, for his opinion, the following questions: 'Can a transportation company compel a shipper to pay a through rate on goods where the sum of two locals is less than the through rate?' For instance: The sum of the local rate from Harvard to Chicago and the local rate from Chi- cago to Harvard is less than the through rate be- tween Harvard and Cleveland. The transportation company in question pub- lish no through rate at this end of the line, and the only way we can find out their through rate is by writing their Chicago office." Section 1 of the Interstate Commerce Act provides, in substance, that all charges of common carriers shall be reasonable and just. Section 2 prohibits unjust discrimination between persons similarly circumstanced and conditioned. Section 3 prohibits any undue or unreasonable pref- erence or advantage to any particular person or lo- cality, or to any particular description of traffic. These various provisions are amplified and extended in the recent Elkins Act of February 19, 1903. Section 4 prohibits a greater compensation in the aggregate for transportation for a shorter than for a longer haul, under like conditions. Section 6 provides for the filing and publication of tariff schedules, etc. It also provides: "And in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said Commission. 476 Such joint rates, fares, and charges on such con- tinuous lines so filed as aforesaid shall be made public by such common carriers when directed by said Commission, in so far as may, in the judg- ment of the Commission, be deemed practicable; and said Commission shall from time to time pre- scribe the measure of publicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carriers to publish, and the places in which they shall be published. ' ' I assume that the railroad company has established a through rate from Harvard to Cleveland via Chi- cago, and that this rate is greater than the aggregate of the local rates from Harvard to Chicago and from Chicago to Cleveland. The question to be determined is whether or not these facts establish a violation of the provisions of the Interstate Commerce Act above referred to. In Hilton Lumber Co. v. Wilmington & Weldon R. R. Co., 9 Int. Comm. Reps., p. 17 (decided April 10, 1901), the precise question was passed upon. It was there observed that : "This seems to be the first case submitted to the Commission during the fourteen years since the regulating statute was passed showing a through freight charge over connecting roads in excess of a combination of charges applying to and from an intermediate point on the through line." In that case the facts were as follows : The local rates on lumber from Wilmington to Nor- folk or Portsmouth, Va., added to the rates in force from Portsmouth or Norfolk to Philadelphia, Jersey City and Boston, produced lower aggregate charges than the through rates in effect on lumber carried by the connecting defendant carriers from Wilmington direct to Philadelphia, Jersey City and Boston via Portsmouth and Pinner's Point, adjacent to Norfolk. This resulted from the fact that the arbitrary or pro- portion of the through rate from Wilmington exacted 477 by the carriers north of Portsmouth or Norfolk was greater than their rates on shipments from Norfolk or Portsmouth. The Commission, in its opinion, said : "neither competition nor the need of greater rev- enue can operate to justify such unjust discrimi- nation as is evidenced by a through rate on traffic from a competing locality higher than the combi- nation of separately established charges to and from another competing locality on the direct through line. ' ' And again : "The rates from Wilmington to Philadelphia, Jersey City and Boston, to the extent that they exceed the sum of rates from Wilmington to Nor- folk or Portsmouth and from the latter points to the northern destinations mentioned, are in viola- tion of section 3 of the statute. We also think they violate the first section. We are also of opinion that in charging a through rate which exceeds the sum of the locals by reason of the fact that the proportion from Portsmouth north exceeds the local from that point, these carriers violate the second section." The opinion concludes : "Divisions of joint rates are usually less than corresponding locals and almost without excep- tion not greater. Without determining whether a case might not arise in which such division could with propriety be made greater than the local rate, we are clearly of the opinion that no such case is presented here where the total through rate on competitive traffic exceeds the sum of the charges to and from an intermediate point." I am of the opinion that the through rate in question is prima facie a violation of the Interstate Commerce Act. There may, however, be exceptional circumstances which are not called to my attention, which might justify a greater charge for through service than the aggregate of the local charges. For instance, there might possibly exist certain conditions in transferring the shipment in Chicago from the initial carrier to the 478 connecting carrier justifying an increased charge which conditions would not exist in the case of a local shipment originating in or terminating at Chicago. The main reason for the existence of through rates is the principle of railroad economics that the rate per ton per mile decreases as distance increases, and there- fore the proportional rate should ordinarily be lower on through traffic, as it is carried at a lower expense to the carrier than that entailed in local service. This rule is not, however, a fixed rule, and it has its quali- fications and exceptions. If the facts develop that the present case is an exception to this rule, the Interstate Commerce Act may not have been violated. A complaint should be made to the Commission, and if any reason exists justifying the higher through rate the carrier must disclose it. In the absence of such evidence I am clearly of the opinion that the act has been violated. NOTE: See the later opinions of November 10, 1906, for Block- Pollack Iron Co. of July 13, 1907, for The Crane Co. and of Nov. 26, 1907, for the Latrobe Steel & Coupler Co. upon the effect of a through rate greater than the sum of the locals and as to the right of a shipper to avail himself of the combination of the locals under the Interstate Commerce Act. Ed. THE LIABILITY OF A COMPANY ACCEPTING OR PAYING A DKAFT ATTACHED TO A BILL OF LADING BEFORE THE GOODS ARE DELIVERED BY THE CARRIER. (Amazon Knitting Company, November 12, 1904.) ' * I wish you would obtain for me the opinion of Levy Mayer, attorney for the association, on the following question: At whose risk in transit is merchandise shipped under the following conditions : Condition of sale, delivery at the factory of the purchaser, a draft drawn with bill of lading, bill of lading made out in the name of the shipper and endorsed when made, against the shipment and paid on presenta- tion. Does this payment of the draft change the risk 479 of goods in transit? In other words, if damage is sustained while the goods are in transit to the mill, is it at the shipper's risk? I am not positive, but I think Mr. Mayer has in the past answered this question, and if he has, and you can forward me his opinion, it will not be necessary for him to write a new one. Other- wise, I wish you would get his opinion as requested above. ' ' As frequently stated in my prior opinions, loss or damage to goods in transit ordinarily falls upon the owner of the goods at the time of such loss or damage. Who is the owner is primarily a question of intention. Under an agreement to deliver at the place of business of the consignee, the title does not ordinarily pass to the consignee until delivery to him. On the other hand, the taking of a bill of lading to the consignor's own order is presumptive evidence of an intention to reserve the title in the consignor. The bill of lading in such a case is a symbol of the property, so that a transfer of the bill of lading is taken as a transfer of the goods themselves, and where a draft is attached to such a bill of lading the title does not pass until the payment of the draft, if it be a sight draft, or the acceptance of the draft if it be a time draft. The case presented falls between these two classes of cases. Under the contract the title does not pass to the consignee until delivery, yet by the payment of the draft the consignee has acquired the symbolical title to the goods. The goods are not delivered until after the payment of the draft. The consignee might have withheld payment of the draft and acceptance of the bill of lading until the goods reached their destina- tion. He did not do so, but preferred to pay for the same in advance. By doing so he accepted a delivery of the goods before he was bound to do so. I am, therefore, of the opinion that from the time of the acceptance of the draft the risks of carriage were upon the consignee. In such cases I consider it unsafe to pay or accept any draft until the goods are delivered by the carrier. 480 See the authorities cited in my former opinions, and Torcheimer v. Stewart (Iowa), 22 N. W., 886. NOTE: See the later opinion of April 20, 1907, for The United Breweries Co. as to upon whom is the risk of transit when goods are sold f. o. b. point of shipment with sight draft attached to order bill of lading taken in name of the consignor. Ed. WHETHER A CARRIER HAS A RIGHT TO MAKE A PER DIEM CHARGE FOR CARS IN ADDITION TO SWITCHING CHARGES. (W. 0. King & Co., November 14, 1904.) 11 We would like Mr. Mayer's opinion as to whether railroad companies, in addition to freight and switching charges, are entitled to make a per diem charge for use of cars. For instance, we are now shipping ten carloads of lumber from our yards on the C. B. & Q. to a point on the C. M. & St. P. By. in the limits of Chicago and within limit of the switching dis- trict, for which the C. M. & St. P. makes a charge of $5.00 for switching and the C. B. & Q. a switch- ing charge of $5.00 and in addition to this they charge us $1.40 per diem for use of the car." The question first to be determined is whether the shipment is a purely local one or whether it constitutes a part of a shipment that is interstate. If the lum- ber was destined for another State and it had begun to move as an article of trade to that other State, and the switching was part of that movement, then the transaction was one of interstate commerce. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State, does not affect the character of the transaction. The Daniel Ball, 10 Wall., 565. I assume, however, in the present case that the shipment originated in Chicago and terminated there, and that it is purely a local shipment. The provis- ions of the interstate commerce act, therefore, have no application. 481 Section 1 of the act of May 2, 1873 (Kurd's Rev. Stat. of 111., p. 1457), prohibits the charging of more than a fair and reasonable rate by any carrier. Section 2 provides against unjust discrimination, which is denned in Section 3. By Section 8 the railroad and warehouse commis- sioners are directed to make for each railroad corpora- tion a schedule of reasonable maximum rates of charges for the transportation of freights, passengers and cars, which schedules are prima facie evidence of the reasonableness of such rate. Section 6 of the act of July 1, 1871 (Kurd's Eev. Stat., p. 1469), provides that every railroad company shall annually report the tariff of freights, showing each charge of tariff during the preceding year, and shall file a copy of each published rate of fare and tariff for freight in force or issued for the govern- ment of its agents. I am not informed as to whether the railroad and warehouse commissioners have established a maximum rate for the charges in question, nor whether the rail- roads, in the report which they are required to make, have filed any schedules of such rates. Nor does it appear whether the charge in question is in the nature of a demurrage charge imposed where the cars are used beyond a certain period, or a per diem charge for the use of the car, irrespective of the length of time the same is used. In Schumacher v. C. & N. W. Ry. Co., 207 111., 199, the right of a carrier to charge demurrage at the rate of one dollar per day was upheld where the cars were not unloaded within twenty-four hours. As the facts are not before me, I can express no further opinion. If the charge in question is a demurrage charge, it may be unjust, as the railroads have established the rate for demurrage at one dollar a day. However, upon this question I express no opinion. (W. 0. King & Co., January 5, 1905.) "Replying to yours of the 14th inst., would say in regard to the switching referred to, the C. B. 482 & Q.'s switching tariff is $3.00 and the C. M. & St. P.'s is $5.00, but after the shipment was made we were charged $1.40 per diem, which we under- stood is an arbitrary charge made by the roads for the use of the car which is addition to their switching tariff and which we think unjust. The shipment originated in Chicago and was purely local business, of which we have consider- able. There is always something new coming up and some charge tacked on, none of which is de- murrage. ' ' Which communication is a reply to my opinion of the 14th ult. As I stated in my former opinion, the shipment being a local one, the provisions of the interstate commerce act have no application. The act of Illinois of April 13, 1871 (L. 1871-72, p. 618), provides (Section 6) that every railroad com- pany shall, on or before September 1st, in each year, make and transmit to the Board of Railroad and Ware- house Commissioners of Illinois a full and true state- ment of the affairs of the company as they existed on July 1st preceding, which report must specify : "The tariff of freights, showing each change of tariff diiring the same time * * a copy of each published rate of fare for passengers and tariff of freight in force or issued for the government of its agents during the same time. Whether the rate of fare and tariff of freight in such published lists are the same as those actually received by the company during the same time; if not, what were received?" The provisions of the Illinois statute (act of April 7, 1871), as to the extortion, unjust discrimination and reasonableness of rates, are referred to in my prior opinion. Section 4 of the act of April 7, 1871, subjects any railroad company guilty of any of these offenses to heavy penalties. And Section 6 of the same act authorizes the party aggrieved to recover treble damages, etc. As stated 483 in my former opinion, the railroad and warehouse commissioners are directed by law to make a schedule of reasonable maximum charges for the transportation of passengers, freights and cars. I have not before me the tariffs of the railroads, nor am I informed whether the per diem charge of $1.40 per car is published in the tariffs, or whether or not the railroad and warehouse commissioners have fixed any maximum per diem charge for the use of cars. I presume that the per diem charge is only im- posed where the shipper does not furnish his own cars. If the shipper furnishes the cars there would be no justification for the extra charge, as there would be no service rendered in addition to the switching service. Assuming, therefore, that the railroad com- pany furnishes the cars, the only question presented is whether the per diem charge is a reasonable charge for the use of cars. This must be determined from all the facts and circumstances. If the charge is consid- ered unreasonable, a complaint will lie to the Railroad and Warehouse Commission of Illinois. The usual demurrage charge is one dollar per diem. While a car is in transit there may be a justification for the $1.40 per diem charge, for the reason that the wear and tear on the car is greater during transit than during the time of unloading. There is, however, no law in Illinois which requires local rates to be pub- lished in advance or which requires the railroad com- pany to adhere to its published rates except the act of April 13, 1871, above referred to, with respect to the making of an annual report. In this connection I assume that no charge is made for freight excepting the switching and the per diem charge. I am not sufficiently informed as to the facts to express an opinion on the reasonableness of the switching charges. Rule 21 of the "Railroad and Warehouse Commis- sioners' Revised Schedule of Reasonable Maximum Rates of Charges for the Transportation of Passengers and Freight on all the Railroads in the State of Illi- nois" provides : 484 "The reasonable maximum rate for switching loaded cars for distances not exceeding three miles shall be two dollars per car. Switching includes the hauling of loaded cars from the station yards, side tracks, elevators or warehouses to the junc- tion of other railroads when not billed from sta- tions on its own road to said junctions, and from junctions of other railroad to the stations, side tracks, elevators and warehouses situated on the tracks owned or controlled by the railroad com- panies doing said switching; it is that transfer charge ordinarily made for moving loaded cars for short distances for which no regular way-bill is made, and which do not move beyond two regu- larly established stations on the same road." In Coivles & McKee v. C., E. I. & P. Ry. Co., No. 14, Opinions R. R. & W. Comm., 1889-1899, p. 101, the commission applied this rule. In this case, however, though the expense bill was made upon the basis of a transfer from Forty-fourth street to Twenty-second street (less than three miles), the proof showed that the car was actually transported from the Fifty-first street yards of the carrier. The car was delivered by the Atchison Company to the Chicago, Rock Island & Pacific railway at Fifty-first street (more than three miles from the Twenty-second street station). It was insisted that, inasmuch as the car in passing to the Fifty-first street yard came upon a track of the Chi- cago, Rock Island & Pacific railway, at a point less than three miles from complainant's warehouse at Twenty-second street, only the distance from such nearer point to the warehouse should be considered in determining the length of the haul. The commission said: "It does not seem to the Commission unreason- able that a railway company doing a large busi- ness in a large city should establish distributing points for the different classes of freight or cars which it hauls. If it were shown by the proof that a car was received by the company at a point nearer than three miles of its destination 485 and that such car was actually hauled by respond- ent direct to its destination, a distance of less than three miles, then the mere fact that the com- pany may have a distributing point farther away to which the car might have gone, would not justify the company in charging for the longer distance from this distributing yard, which was not, in fact, traversed; and if such a charge were made, it would constitute, if above the fixed maximum, a prima facie case of extortion. Such a case was not made by the proof under this complaint. ' ' In King v. P. F. W. & C. Ry. Co., No. Ill, p. 279, Opinion B. B. & W. Comm., the rule was again applied. It was there said : "The point urged by respondent, 'that it did not take these cars from any point on any track owned or controlled by it,' is not well taken, for the reason that respondent did this switching with a full knowledge of the switching charges as fixed by the Commission, and also with a full knowledge of the fact that they were taking these cars from a point on a line of railroad now owned or controlled by it, and it is therefore stopped from claiming any advantage or general benefit thereby. It is also true that respondent could not have been compelled to go to the Sugar Befining Com- pany's works for these cars, as it was not located 'on any tracks owned or controlled by respond- ents.' but having elected to do so, it can not now plead in defense of its conduct that the cars were not taken from a point on track or tracks that was not owned or controlled by it." In Boston Water & Light Co. v. R. R. Co. (Opin. B. B. & W. Comm., p. 373) the matter was again passed upon. It was there contended that, inasmuch as the carrier owned the lines and sidetrack, it had the right to charge the regular "cents per hundred pounds" rate. It was proven that in billing cars from the junc- tion point the carrier billed them to the first station beyond the works of the complainant and charged the regular rate for the haul, dropping the cars off the 486 sidetrack of the complainant. Referring to Rule 21, supra, the commission said: "From this rule it is clearly apparent that whenever a loaded car is taken at the junction of another railroad to be transferred to any side track, elevator or warehouse situated on the tracks owned or controlled by the railroad company tak- ing charge of such car at said junction, that the company doing said transferring shall deliver the same on their own tracks to the place of destina- tion for two dollars, provided that it is not a regu- larly established station on the same road. The evidence in this case showed that the place of business of the complainant is not a regularly established station on the line of the defendant, and under this rule it is clearly evident that the defendant was violating Rule 21 above set forth." To the same effect see: Coal Co. v. C. & A. Ry., Opinions, p. 372. Vance v. R. R. Co., Opinions, p. 329. If, therefore, the facts are sufficient to bring the present case within Rule 21, supra, then the present charge is, prima facie, illegal, and the burden is on the carrier to establish the reasonableness of the rate. It seems to me that the case justifies an appeal to the State Board of Railroad Commissioners. NOTE: Proceedings were instituted by the Association in June, 1907, before the Illinois Eailroad & Warehouse Commission involving switching rates and switching service in Illinois and these proceedings are now (Jan., 1908) pending before the Commission. See also the later opinion of April 20, 1907, for Edward Hines Lumber Co. that a carrier has no right to assess an arbitrary per diem charge for the use of the cars in addition to a switching charge. Ed. WHAT CONSTITUTES UNJUST DISCRIMINATION UNDER THE INTERSTATE COMMERCE ACT AND THE RAILROAD ACT OP ILLINOIS. (Earl Manufacturing Company, November 14, 1904.) "I had a conversation with a party represent- ing a Coal Company at Virden, 111. He states they are getting coal delivered for 75c over the Alton 487 railroad. They also have a contract with the 'Q' at 75c. The 'Q' hauls coal through here and has been asking us $1.20, but concluded to give us $1.00 rate. I understand they got a $1.00 at Aurora. This is a point of discrimination as near as I can find out and I want to find out as to how this discrimination law acts. We fought the rail- road company on the demurrage proposition and they paid us back. We are not making any great complaint, but we are going after these people to get what there is in it, like we do everything else in our line. We want your assistance on the law points and thank you kindly for your work as far as you have gone." Section 1 of the act of May 2, 1873 (Kurd's Eev. Stat. of 1903, p. 1457), forbids any railroad company to ''charge, collect, demand or receive more than a fair and reasonable rate of toll or compensa- tion," for the transportation of freight. Section 2 of the same act prohibits "unjust dis- crimination, ' ' which is defined in section 3 of the same act. Section 3 is too long to quote, but in substance it prohibits discriminating charges for transporting freight where there is no proper basis for such dis- crimination. Section 8 provides for the fixing of maximum rates by the railroad and warehouse commissioners. The above provisions apply only to the transporta- tion of freight wholly within one State and not shipped to or from a foreign country or from or to any other State or Territory. The latter class of shipments come within the scope of the interstate commerce act. Section 2 of that act provides: "That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect or receive from any person or persons a greater or less compen- sation for any service rendered, or to be rendered, 488 in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the trans- portation of a like kind of traffic under substan- tially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. ' ' Section 3 provides: ' ' That it shall be unlawful for any common car- rier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreason- able prejudice or disadvantage in any respect whatsoever. ' ' Section 4 prohibits a greater charge for a shorter than for a longer haul in the same direction over the same line. Section 6 provides for the publication and filing of a schedule of rates. If the shipments in question are interstate they are governed by the provisions of the interstate commerce act. If they are intra-state the railroad act of Illinois controls. The facts stated are not sufficient for me to express an opinion as to whether either law has been violated. If an investigation of such facts shows that there is, in fact, unjust discrimination between persons in substantially similar circumstances, a com- plaint will lie to the Interstate Commerce Commission or to the Railroad and Warehouse Commission of Illi- nois, as the case may be, and in appropriate proceed- ings the courts will furnish relief. 489 THE RIGHT OF A RAILROAD COMPANY TO ASSESS CAR SERVICE CHARGES WITHOUT MAKING TENDER OF CARS. (J. M. Glenn, Secretary, November 15, 1904.) "The Crane Company has team tracks and sidings at its Twelfth Street plant, connecting with the Pennsylvania and Burlington roads. The railroads have assessed car service charges against cars forty -eight hours after the arrival of the cars in Chicago without having made delivery to the Crane Company tracks. The railroad companies claim that the tracks were occupied and that the Crane Company could not receive the cars. The Crane Company wants to know if the railroad companies can collect car service for the cars not delivered on its tracks, or, at least, when the rail- roads have not actually tendered the cars to its switch engine." In my opinion, rendered March 14, 1904, in answer to the query of the Block-Pollak Iron Company, I dis- cussed the necessity of the carrier making delivery to the sidetracks of the consignee, saying : "Where a side track is erected and owned by the company or consignee, it is considered part of the line of the railroad and the company is obli- gated to make personal delivery to the consignee. * The liability of the carrier to make per- sonal delivery may also be established by usage or custom. * * * If, therefore, it has been the well-established and generally well-known custom and the usual course of business for the carrier to make personal delivery to the consignee where such consignee can be reached over the line of the railroad, such custom forms a part of the contract of carriage, and the railroad company is obligated to make a personal delivery." The rules of the Chicago Car Service Association of September 1, 1904, provide as follows: "Rule 3. The placing of a car upon a private track shall be construed as notice of delivery. 490 Eule 15. (a) Cars containing freight to be de- livered from track, warehouses or platforms, shall be switched to points of delivery as soon as prac- ticable after arrival. (b) The delivery of cars consigned or ordered to private tracks or designated public delivery tracks, shall be considered to have been effected when such cars have been placed on the track de- signated, or, if such tracks be full, when the road tenders the cars by giving notice of their arrival.' 1 Car service and demurrage rules, if they are reason- able and just, are usually upheld by the courts. Millers Assn. v. Phila. & R. Ry. Co., 8 I. C. B., 531. Schumacher v. C. & N. Ry. Co., 207 111., 199. In my opinion the regulation that the carrier may tender cars by giving notice of their arrival, when the consignee's tracks are full, is a reasonable and just regulation. The question, therefore, resolves itself into a question of fact. The carrier has the right to charge de- murrage if cars are not unloaded within forty-eight hours after delivery. If the tracks of the consignee are occupied, the consignee has, by its own act, pre- vented a delivery. The carrier, therefore, performs its duty in such a case when it tenders the cars or gives notice of their arrival. If such notice was given and the consignee could not receive the cars, the car- rier would, in my opinion, be entitled to charge de- murrage. If, in fact, the track of the consignee was not occupied, a personal delivery is essential and a no- tice will not suffice. 491 WHETHER A STEAMSHIP COMPANY, THE CONSIGNEE OR CON- SIGNOR SHOULD SUSTAIN THE LOSS WHEN GOODS ARE BURNED ON A DOCK AND AS TO THE APPLICATION OF THE HARTER ACT, AND THE VESSEL OWNERS' LIMITED LIABIL- ITY ACT TO SUCH A CASE. (Sanford Manufacturing Company, January 5, 1905.) "A good deal of our California business goes by the way of New York, via the American-Ha- waiian Steamship Company. When this com- pany's docks were burned, a short time ago, we had several shipments which had lain on their docks for ten days or more, which were burned in the fire. All of these goods were sold F. 0. B. New York. We hold the company's bill of lading for these shipments. Will you kindly advise us whose loss this is, the American-Hawaiian Steam- ship Company's, the consignees' or ourselves!" The first question to be determined is whether the steamship company is liable for the loss of the goods. I have not been furnished with a copy of the bills of lading under which the shipments were made. It is stated that bills of lading were issued, and I assume that they were issued by the steamship company. A carrier may limit its liability under certain condi- tions by special contract against liability for loss, or damage, except in certain cases hereafter referred to. In the absence of the bills of lading I must assume that no such exemption was contracted for. To render the steamboat company liable, a proper delivery must have been made to it. To constitute the delivery there must be a change of possession from the shipper to the carrier or from the initial carrier to the connecting carrier, and the former must relinquish all custody and control of the property for the time being, leaving the exclusive possession to the carrier. 5 Am. Eng. Enc. Law (2nd ed.), p. 182. Hutchinson on Carriers, Sec. 94 (2nd ed.). Delivery to a ship or vessel is complete as soon as some agent of the owner of the ship receives the goods ; 492 and they may be received upon the ship, on the wharf, on the beach or at a warehouse, or at any other place at which an agent, duly authorized, may agree to re- ceive them; and in all such cases the liability of the master and owners as carriers commences at the mo- ment of such acceptance. Hutchinson on Carriers, Sec. 95 (2d ed.). Scott v. Baltimore, C. & R. Steamboat Co., 19 Fed., 56, 58. Story on Bailments, 534 (9th ed.). And the issuance of a bill of lading is a waiver of ob- jections to the sufficiency of a delivery : Goodard v. Mallary, 52 Barb., 87. The delivery in this case was, therefore, completed, and, a bill of lading having issued, the steamship com- pany is chargeable as a common carrier and not as a warehouseman. The liability of a carrier as a common carrier begins with the actual delivery of the goods for transporta- tion, and nothing remains to be done by the owner be- fore shipment. Grand Tower Co. v. Ullman, 89 111., 244. I. C. R. R. Co. v. Smyser, 38 111., 354. 6 Cyc., pp. 414-415. The liability of a common carrier, in the absence of a special agreement or statutory restriction, is that of an insurer against all loss or damage during trans- portation, from whatever cause, except the act of God or the public enemy or public authority, or the act of the shipper, or the inherent nature of the goods shipped. A warehouseman, however, is liable only for failure to use ordinary care. Where goods are shipped by water, a claim for loss may be complicated by the provisions of the vessel owners' limited liability act. That act provides: (United States Revised Statutes, Sec. 4282.) (Loss by fire.) "No owner of any vessel shall be liable to answer for or make good to any person any loss or damage which may happen to any mer- chandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or 493 by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner." It will be noted that this act exempts the owner from liability for loss of goods "by reason or by means of" a fire that happens "to the ship" or "on board" of her. This statute is copied from the second section of Act 26, Geo. Ill, c. 86, which received a judicial interpretation by the Court of Queen's Bench in More- wood v. Pollok, 1 El. & BL, 743. It was there held that the act did not extend to the case of a fire occurring on a lighter in which cotton was being conveyed from the vessel to the shore. The United States courts have followed this interpretation and have held that to es- cape liability the fire must "happen to" or "on board the vessel." In the case of "The Egypt," 25 Fed., 320 (1885), involving a claim for merchandise which had been land- ed on the docks and burned in the great fire which de- stroyed the piers of several of the transatlantic com- panies at New York, January 31, 1883, Judge Brown said: " I do not think that the phraseology of the stat- ute, though capable of this broad construction, was intended to cover fire originating on the dock and happening, to goods after they had been landed. ' ' The losses occurring from this fire came before the courts many times for adjudication, and the decision in The Egypt has been upheld by the United States Su- preme Court in Constable v. Nat'l Steamship Com- pany, 154 U. S.,51 (1894). To the same effect are the following cases : Richardson v. Goddard, 23 How., 37. The City of Clarkville, 94 Fed., 201. Salmon Falls Mfg. Co. v. Tangier, 21 Fed., Case No. 12265. I am of the opinion, therefore, that this act has no application. The steamboat company, as I understand it, issued bills of lading for the shipment. I am not informed as to the stipulations contained in these bills of lading. Generally, however, carriers usually exempt themselves from losses by fire by special stipulation to that effect. And in most of the marine bills of lading which have come before the courts for examination such stipulations occur. A bill of lading is both a re- ceipt and a contract of carriage, and as a receipt it is open to explanation. Cunard S. 8. Co. v. Kelly, 115 Fed., 678, 683 (1902). That the common law liability of a carrier by water may be limited by special contract not due to negli- gence or fault is well established. N. J. Steam Nav. Co. v. Merchants' Bank, 6 How., 344. York Mfg. Co. v. 111. Cent. R. R., 3 Wall., 107. The Victory, 168 U. S., 410. The Queen of the Pacific, 180 U. S., 49, 56, 57. Saunders v. Southern Ry. Co., 128 Fed., 15 (1904). The Harter act of February 13, 1893 (Sec. 4, Ch. 105, 27 U. S. Stat. L., 445), provided that it shall be the duty of owners, etc., of vessels transporting mer- chandise to issue bills of lading, and such document shall be prima facie evidence of the receipt of the mer- chandise therein described. Section 1 of that act provides that it shall not be law- ful for a carrier by water to limit its liability against liability for loss or damage arising from "Negligence, fault or failure in proper loading, stowage, custody, care or proper delivery." Section 2 prohibits such a carrier from inserting in any bill of lading any agreement whereby the obliga- tions to "exercise due diligence (to) properly equip, man, provision and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligation of the master, officers, agents or servants to carefully handle and stow her cargo and to care for and properly deliver same, shall in any wise be lessened, weakened or avoided." 495 Section 3 provides: "That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers shall become or be held re- sponsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, nor shall the vessel, her owner or own- ers, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality or vice of the thing- carried, or from insufficiency of package or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service." There is nothing, however, in the Harter act which prohibits a carrier by water from limiting its liability for losses by fire, provided such fire is not due to its negligence, etc. In many cases stipulations have been held valid in bills of lading which exempt carriers from losses ' ' by fire before loading in the ship or after unload- ing"; "fire at any time and place," "not to be held liable for any damages to any goods which are capable of being covered by in- surance. ' The Egypt, 25 Fed., 323. Scott v. Baltimore, C. & R. Steamboat Co., 19 Fed., 56. Constable v. National Steamship Co., 154 U. S., 51. The carrier cannot, however, exempt itself from the consequences of its own negligence, either at common law or under the provisions of the Harter act. But in 496 New York a carrier may limit its liability even for gross negligence, although this doctrine is not followed in the federal courts. I am of the opinion, however, that a bill of lading issued by a steamship company for transportation on high seas is governed by the federal law (Barter act), and that the doctrine of the New York courts has no application to the present case; and, assuming that there is no stipulation in the bill of lading, I am of the opinion that the steamship company is liable. If the fire was occasioned by the negligence of the steamship company it is liable in any event. The initial carrier (railroad company) may be liable for the loss, even though the goods have been delivered to a connecting carrier. At common law a carrier was under no obligation to carry goods beyond its own line. But it may specially contract to do so. This may be done by the issuance of a through bill of lading, which does not restrict the carriers' liability to its own line. The courts of Illinois have ruled that the initial carrier, by receiving goods for transportation, consigned to a point beyond its own line, is responsible as a common carrier over the entire route. 7. C. R. R. Co. v. Frankenburg, 54 111., 88. The carrier may, however, by special contract with the shipper, and not by general notice, limit its liabil- ity to such damage or loss as may occur on its own line of carriage. If the shipper takes a receipt for the goods or bill of lading from the carrier, containing con- ditions limiting the liability of the carrier in such a way as it is competent for him to do with knowledge on the part of the shipper of such conditions contained in such receipt or bill of lading, it becomes his contract as fully as if he had signed it. 7. C. R. R. v. Frankenberg, supra. 5 Ency. of Law (2d Ed.), p. 639. And if the shipper assent to the restriction of liabil- ity he is bound thereby. Inasmuch, however, as the bill of lading is not before me, I can refer only to the general rules applicable to the subject. Whether the loss falls upon the consignor or consignee, in a case where the carrier is not liable, 497 depends upon the contract between the parties. The goods were sold f. o. b. New York. The effect of such a clause is discussed in my opinion to the Association under date of October 24, 1903. "F. o. b. New York" means that the goods are sold free of all expense to the consignee up to that point and that the expense there- after is upon the consignee. The consignor in such a case must pay the freight up to the f. o. b. point, and thus the initial carrier becomes the agent of the con- signor, in whom the title remains until the goods ar- rive at New York. The question arises whether the title passes to the consignee before the goods are placed on board the vessel, inasmuch as f. o. b. is an abbrevi- ation for "free on board." I am of the opinion, how- ever, that the title and the consequent risk pass to the consignee upon delivery to the steamship company. F. o. b. does not mean that the title will not pass until the goods are placed on board the vessel, but only that the goods will be placed on board free of expense to the consignee. When the goods are delivered to the steamship company the consignor has done all he is obliged to do under the contract. The consignee is obligated, under the contract, to pay the ocean freight and the steamship company thus becomes the agent of the consignee. Under such circumstances, if the car- rier is not liable the loss would fall upon the consignee, as a delivery has been made to his agent. The ques- tion of title and risk, however, is a question of inten- tion, and the fact that a sale is f. o. b. is not conclusive. For instance, if the bill of lading is issued to the order of the consignor, and a draft is attached to the bill of lading, this is effectual to reserve the jus disponendi of the goods in the consignor. Again, it is possible for one of the parties to assume the risk of transit, even though the title is in the other party. However, as the contract is not before me I express no opinion upon this phase of the case. 498 THE APPLICATION AND SCOPE OF THE FOREIGN CORPORATION LAW OF SOUTH DAKOTA AND AS TO COMPLIANCE THERE- WITH. (Rubber Paint Company, January 5, 1905.) ' l Will you kindly inform us whether our general counsel, Mr. Levy Mayer, has ever furnished an opinion to any member of our Association regard- ing the application and scope of the law against foreign corporations now in force in South Da- kota 1 If so, will you kindly send us a copy of such opinion? We had occasion to bring suit recently against a citizen of South Dakota for a bill of merchandise shipped and billed to him from this town, on an order taken, subject to our approval here, and the South Dakota lawyer seems to think we must comply with their anti-foreign corpora- tion law." The constitution of South Dakota (Art. VII, Sec. 6) provides : "No foreign corporation shall do business in this State without having one or more places of business and an authorized agent or agents in the same, upon whom process may be served. ' ' The civil code of South Dakota provides (Sec. 4369) : "No corporation created or organized under the laws of any other State or Territory shall transact any business within this State or acquire, hold, dispose of property, real, personal or mixed, within this State, or sue or maintain any action at law or otherwise, in any of the courts of this State, until such corporation shall have filed in the office of the Secretary of State a duly authenti- cated copy of its charter or articles of corporation, or shall have complied with the provisions of this act. Provided, That the provisions of this act shall not apply to corporations and associations created for religious and charitable purposes only. * ' The code further provides (Sec. 4371) that such cor- 499 poration shall appoint an agent, who shall reside at some accessible point in this State, duly authorized to accept service of process, and process served on him shall be due service on the corporation. A duly au- thenticated copy of the appointment of the agent shall be filed and recorded in the office of the Secretary of State and of the Registrar of Deeds in the county where the agent resides, and a certified copy thereof is made conclusive evidence of the appointment and authority of the agent. It is further provided that no action shall be maintained on any contract made by the corporation within the State unless the corporation has complied with the act. Any person acting within the State as agent of a foreign corporation, which has not complied with the act, is punishable by a fine of from ten to one hundred dollars or imprisonment from ten to thirty days, or both. The code further provides (Sec. 6199) that suit may be begun by attachment against any foreign corporation which has not com- plied with the laws of the State for appointing an agent or is removing or has assigned its property with intent to defraud creditors. In my opinion to the Association rendered July 17, 1901, in response to an inquiry of Belding & Co., I dis- cussed the foreign corporation laws of several States, among others South Dakota, and upon the method of doing business therein referred to. I stated that Beld- ing Bros, need not comply with the laws of South Da- kota in order to collect accounts on goods sold accord- ing to their statement of facts. And in my opinion of July 18, 1901, in response to an inquiry from Parlin & Orendorff Company, I discussed what constitutes ''doing business in a foreign State." I there stated that what the law is depends very much upon the pe- culiar facts in each case. I have not before me, in this instance, sufficient facts to enable me to express an opinion as to whether the method of selling goods con- stitutes "doing business" in the State of South Da- kota. Unless a corporation is "doing business" in a foreign State, it is not subject to the laws governing foreign corporations. However, it is generally held 500 that where a foreign corporation solicits orders in the State through commercial travelers, the orders being transmitted to the corporation at its domicile and there filled, the sale is considered as made at the domicile of the corporation. The foreign corporation in such a case is not doing business in the foreign State, nor subject to the foreign corporation laws. Knitting Co. v. Bronner, 45 N. Y. Supp., 714. Holden v. Aultman, 169 U. S., 81. Toledo Commercial Co. v. Mfg. Co., 55 Ohio St., 217. Varnish Co. v. Council, 32 N. Y. Sup., 492. Coit v. Sutton, 102 Mich., 324. It is everywhere held that bringing suit is not ' ' doing business" within the State. Beale, For. Corp., Sec. 209, and cases cited. In so far as the statute prevents a foreign corpora- tion, not doing business in South Dakota from main- taining action and enforcing a contract thus legally made, I am of the opinion that it is unconstitutional. I discussed this question in my opinions of October 8, 1901, January 15, 1902, and March 24, 1903, rendered to the Association in regard to the foreign corporation laws of Colorado, and stated that such a provision of a foreign corporation statute was unenforceable. I there stated that the act could apply only to foreign corporations "doing business" within the State. No State can interfere with interstate commerce, or ex- clude a corporation from engaging in interstate com- merce. In the conduct of such business, such corpora- tions are entitled to the protection of the State laws and a denial of such protection is a denial of the equal protection of the laws, contrary to the 14th Amend- ment to the Constitution of the United States. The subject is fully discussed in my opinion of March 24, 1903, and cases cited in support of my position. I have not sufficient facts before me in this case to express definitely an opinion as to whether the Rubber Paint Company is "doing business" in South Dakota or engaged in interstate commerce, but if the trans- action comes within the example above given, I am of 501 the opinion that it is not necessary for the Paint Com- pany to comply with the foreign corporation law of South Dakota to maintain its action. NOTE: It is important that in connection with this opinion, should be read the later opinion of April 20, 1907, for The Electric Appliance Co. in reference to the foreign corporation law of South Dakota and as to the advisability of compliance therewith in view of the decisions of the South Dakota courts. Ed. AS TO WHETHER CERTAIN ALUMINUM DISCS USED FOR AD- VERTISING PURPOSES COME WITHIN THE FEDERAL STAT- UTES PROHIBITING COUNTERFEITING OF COINS. (M. Born & Co., January 5, 1905.) "We are sending out in clothes the enclosed (aluminum discs) as an advertising novelty, and have been notified to-day by the secret service office that we must discontinue, as these aluminum discs are being used throughout the country as money. Inasmuch as it is customary for these discs to be used by hundreds of advertisers throughout the country, and the manufacturers tell us that they are turning them out by the million for the different advertisers, we send you this, asking you to give us an opinion as to whether we are in vio- lation of the law or not." The aluminum in question is light in weight and color, and slightly larger than a ten cent piece. Upon one side of the disc certain advertising matter ap- pears. The section of the Federal Statutes on the subject of counterfeiting is as follows : "Sec. 5457. Every person who falsely makes, forges or counterfeits, or causes or procures to be falsely made, forged or counterfeited, or willingly aids or assists in falsely making, forging or coun- terfeiting any coin or bars in resemblance or similitude of the gold or silver coins or bars, which have been, or hereafter may be, coined or stamped at the mints and assay offices of the United 502 States, or in resemblance or similitude of any for- eign gold or silver coin which by law is, or here- after may be, current in the United States, or are in actual use and circulation as money within the United States, or who passes, utters, pub- lishes, or sells, or attempts to pass, utter, pub- lish, or sell, or bring into the United States from any foreign place, knowing the same to be false, forged or counterfeit, with intent to defraud any body politic or corporate, or any other person or persons whatsoever, or has in his possession any such false, forged, or counterfeited coin or bars, knowing the same to be false, forged or counterfeited, with intent to defraud any body politic or corporate, or any other person or per- sons whatsoever, shall be punished by a fine of not more than five thousand dollars, and by im- prisonment at hard labor not more than ten years. Sec. 5458. Every person who falsely makes, forges or counterfeits, or causes, or procures to be falsely made, forged, or counterfeited, or will- ingly aids, or assists in falsely making, forging or counterfeiting, any coin in the resemblance of (or) similitude of any of the minor coinage which has been, or hereafter may be, coined at the mints of the United States; or who passes, utters, pub- lishes or sells or brings into the United States from any foreign place, or has in his possession, any such false, forged, or counterfeited coin, with intent to defraud any person whatsoever, shall be punished by a fine of not more than one thousand dollars and by imprisonment at hard labor not more than three years." Section 5457 applies to gold and silver coins, and 5458 to minor coins. The discs in question are used solely for advertising purposes. As I understand it, the discs are placed in merchandise which is sold, and are not sent sep- arately through the mails. The only question to be determined, therefore, is whether the offense of coun- 503 terfeiting has been committed. To constitute the of- fense of making counterfeit coin, there must be re- semblance or similitude to a genuine coin. It must be sufficiently exact as to impose on or deceive persons of ordinary observation, using such caution as is or- dinarily exercised by prudent men in the particular transaction in which they are engaged, although the counterfeit would not deceive a person who was ex- pert or has particular experience in such matters. Although the question of similitude is ordinarily for the jury, I am of the opinion that the making or using of the disc in question does not constitute counterfeit- ing, as there is not sufficient similitude to any genuine coin. See the following authorities : U. 8. v. Aylward, Fed. Gas., 14,482. U. 8. v. Hopkins, 26 Fed., 443. 11 Cycl., pp. 305-6. 7 Ency. of Law (2nd Ed.), p. 877. 2 Fed. Stat. Ann., Sec. 5457 and notes. U. 8. v. Briefer, Fed. Gas., 14,642. U. 8. v. Morrow, Fed. Gas., 15,819. U. S. v. Hargrave, Fed. Gas., 15,306. U. S. v. Burns, 5 McLean, 23. WHETHER A CARRIER IS LIABLE FOR THE TIME OF A SALES- MAN LOST ON ACCOUNT OF DELAY IN TRANSPORTATION OF HIS BAGGAGE. (Selz, Schwab & Co., January 6, 1905.) "You will no doubt remember the conversation our Mr. J. Harry Selz had with you this noon in regard to a claim we had placed against the C. & N. W. By., for two days' time our salesman lost owing to the failure of the baggage man to put his trunk on the train. We are enclosing herewith a copy of our claim as filed against the railroad company, also their original letter declining the claim, and will ask you to please refer the matter to your counsel, Mr. Levy Mayer." 504 The letter of Selz, Schwab & Co. to the railroad company states : "Enclosed herewith please find claim for $32.40, same representing the value of our salesman's tune (two days) and his expenses for this time. In explanation will say that our salesman, Mr. Harry Mehle, writes us under date of October 29th that he left Battle Creek, Iowa, Friday after- noon 'all set and cocked to see both of my cus- tomers at Mapleton and get out that night for Perry, Iowa, to make connections Saturday morn- ing for Valley Junction, where I sell Jacobson always on Saturday morning.' Your agent at Battle Creek, however, failed to put his baggage on the train, and as the next train Saturday morn- ing did not go until 9:30 he was too late to do any business in Mapleton on Saturday, and he, therefore, lost both of these days, as he says that neither accounts at Mapleton would look at his samples on Saturday. He was unable, therefore, to do anything at all until the following Monday, and in addition to this he had lost his opportunity to make Valley Junction to sell his customer there who only buys on Saturday. Kindly give this claim your prompt attention, acknowledge receipt of this letter, giving us your number, and oblige." In my opinion rendered to the Association of date October 1, 1902, I discussed the liability of a carrier for baggage and what constitutes "baggage." It is there stated that merchandise samples are not "bag- gage," and the carrier is not subject to its common law liability therefor unless it accepts the samples as bag- gage with notice of their character. It is a question of fact, in this instance, as to whether the carrier or the agent undertook to carry the samples as baggage with knowledge of that fact. A common carrier who receives merchandise as baggage with notice of its character is liable for its loss. L. S. & M. S. Ry. Co. v. Hochstim, 67 111. App., 514. 505 Ry. Co. v. Doges, 57 Ohio St., 38, 47 N. E., 1039. The carrier may have either actual or constructive notice of the contents of the trunks offered as baggage. If the carrier has actual notice, it is liable. But the carrier is not bound to inquire as to the contents of the trunk. If, however, a passenger tenders merchan- dise to the carrier to be carried as baggage, packed in such a way that the carrier, or its agent, can see and must know that it is merchandise, and he, notwith- standing, accepts it for carriage, he will be responsible for it in case it is lost. Hutchinson, Carriers (2d Ed.), Sec. 685. In some cases the size or construction of the trunk, or in some States its great weight, may put the agent upon notice of the character of its contents, although this is entirely a question of fact. In Massachusetts, the contrary is held and an actual agreement is necessary, Ailing v. R. R., 126 Mass., 121. But in Iowa, where the contract for transportation in question was entered into, and according to the laws of which it is interpreted, the Supreme Court said in Weber Co. v. Ry. Co., 113 la., 188, 84 N. W., 1042: "We should not care to go as far as the Massa- chusetts court has gone, and hold that a baggage agent has not the implied authority to accept mer- chandise as baggage, waiving the objection on that ground. ' ' Furthermore, it is held that there is an implied un- dertaking on the part of the carrier that the baggage should be sent on the same train that the passenger takes, if the baggage is checked a reasonable time be- fore the departure of the train, and the carrier ought not without permission send baggage by a later train unless in a strong case of necessity. Wald v. R. R. Co., 162 111., 545 (citing cases). However, if the trunk is carried as baggage without notice at the time that it contains merchandise samples, the carrier is not subject to any common law liability. The position of the carrier is then that of gratuitous bailee, and it is liable only for gross negligence. Mich. Cent. R. R. Co. v. Carrow, 73 111., 348. I have not before me sufficient facts to express any opinion as to whether the trunk was accepted as bag- gage with knowledge of its contents such as to render the carrier liable for negligence. In the absence of any other circumstances, there was negligence on the part of the carrier in delaying the trunk, sufficiently to ren- der the carrier liable for damages if the trunk was carried with knowledge of its contents. But the facts are probably insufficient to hold the carrier liable ex- cept for gross negligence, if it had no knowledge of the contents of the trunk. In case of delay in transporting baggage, the meas- ure of damages is the value of the use of it to the owner between the time of its actual delivery and the time it should have arrived. Sutherland on Damages (3d Ed.), Sec. 955. R. R. Co. v. Douglass, 30 S. W., 487 (Tex.). Remote, speculative or conjectural damages, how- ever, are never recoverable. 3 Ency. Law (2d Ed.), 585. Any definite damages, therefore, which are the di- rect and proximate result of the delay are recoverable, if the trunk was carried as baggage with knowledge of its contents. I am not informed as to the basis used in computing the value of the salesman's time, nor as to whether his expenses resulted as a direct consequence of the delay, or were such as would have been incurred in any event, and consequently can express no opinion as to whether the particular items claimed are recoverable if the trunk was accepted as baggage with knowledge. I return herewith the enclosures. NOTE: See the opinion of April 20, 1907, for the Powers Regula- tor Co. as to whether a railroad Company is liable for loss of time by an employe of the consignor or consignee when a shipment has been delayed. Ed. 507 IN REFERENCE TO QUESTIONS ARISING IN CONNECTION WITH THE PROPOSED UNIFORM BILL OF LADING AND AS TO HOW LONG CERTAIN CONDITIONS PROPOSED IN THE UNIFORM BILL OF LADING HAVE APPEARED IN BILLS OF LADING AND HAVE BEEN PUBLISHED IN THE CLASSIFICATION, AND AS TO THE PROPOSED TWENTY PER CENT. INCREASE IN RATE FOR CARRIERS' COMMON-LAW LIABILITY. (Standard Wheel Company, January 6, 1905.) "Please accept our thanks for your valued fa- vor of the 23d inst. Our inquiry to Studebaker Bros, was for the purpose of understanding their own personal views in the matter, they having en- dorsed on their orders strict instructions relative to the use of the new uniform bills of lading. We have endeavored for some time to get definite views and instructions from various sources, and find a wide range of opinion. As shippers, we desire first and last to see that transportation companies do not encroach upon the rights of shippers, and so far as we can now learn, the only cause of contention in the matter is on the ground that the railroad interests are sup- posed to be quietly preparing to draw a more strict line in regard to the liability they assume, but we have been unable to find in writing anything which changes conditions already existing. Are we asking too much if you will answer sep- arately the following questions: First: Was it to be necessary for the shipper to actually sign the new shipping orders and bills of lading in addition to the printing or stamping of his name, which must necessarily appear some- where on the forms'? Second. If so, can you refer us to a circular in which this feature is covered, or send us a copy ? Third. Is it not a self-evident fact that the con- ditions of the so-called uniform bill of lading are binding between shipper and carrier, whether signed or unsigned, if the shipper presents a ship- 508 ping order on this form and the carrier signs the bill of lading, which the shipper accepts! Fourth. Is it or is it not a fact that the same con- ditions as to liability have always been a part of the bills of lading in common use and the only difference is that the liability clause is now printed on the bills of lading proper, instead of in the classification only, the latter having been and now being a part of the contract between carrier and shipper ? We do not wish it understood that we favor the bill at all; we are only endeavoring to get at the real points at issue. We hope you can help us out along that line." I suggest that the communication be answered as follows : In response to questions 1 and 2, the Uniform Bill of Lading Committee, representing the various car- riers in Official Classification Territory, in a circular issued August 1, 1904, makes this statement : "Carriers prefer that shippers' signatures (written, stamped or printed) shall be affixed to the Uniform Bill of Lading Original and to Mem- orandum Acknowledgment, but they do not insist upon this being done. If shippers prefer to omit their signatures to these forms, no objections will be made by carriers." In response to question 3: By the laws of several of the States, including Illinois, the shipper must ex- pressly assent to a limitation of liability in a bill of lading. In other States it has been held that an un- signed general notice, limiting the carriers' liability, printed on the back of a receipt, does not bind the shipper, although he accepted it without dissent. But in most of the States the receipt of a bill of lading without objection, containing restrictions of liability, is binding on the shipper, as it is presumed that he as- sented thereto. The question can only be determined by reference to the law of the State where the contract of shipment is made. 509 In response to question 4: The conditions of the uniform bill of lading have appeared in all the offi- cial classifications since 1891, and the 20 per cent, clause for common law liability has appeared in the classifications since 1894. There is a wide difference between the printing of the liability clause in the classifications and in the bill of lading, shipping re- ceipt and shipping order. In many States the ship- per would be bound by accepting the bill of lading with the liability clause upon it where he would not if it appeared only in the classification. Furthermore, these conditions, even if they appeared in the bill of lading of many of the railroads, have not been enforced, either in the collection of freight charges or in the ad- justment of loss and damage. The conditions which have not been in practical operation for ten years or more the railroads now propose to literally enforce. The uniform bill of lading has been a dead letter in the classifications during all these, years. Although the rates specified in the schedules and classifications are, by reference, made subject to the conditions of the uniform bill of lading, the carriers have accepted the shipments at these rates under the common law liability. Again, although it has been stated in the classifications that a 20 per cent, advance would be charged for unlimited liability, this 20 per cent, in- crease has never, to my knowledge, been collected until recent date. WHETHER A GABBIER IS BELIEVED FBOM LIABILITY TJNDEB THE LAW OF ILLINOIS WHEN THE BILL OF LADING OR SHIPPING RECEIPT IS STAMPED: "BECEIVED AT OWNEfi'S BISK OF DAMAGE OB BBEAKAGE. " (Weller Mfg. Co., January 18, 1905.) "We would like to have legal advice regarding the following matter: On August 22, 1904, we made shipment of ma- chinery to the Konrad Schreier Co., of Sheboygan, Wis., via the Goodrich Transportation Co., as per enclosed shipping receipt. One iron pulley, part 510 of the shipment, was broken in transit. Their attention was called to this by the consignee. We sent the transportation company a bill for the value of the pulley. Under date of December 2, 1904, we received the following letter from them: ' I return herewith the original B/L or shipping receipt issued for this property at Chicago. It bears notation, "Received at shipper's or owner's risk of damage or breakage." Under these terms there is no responsibility with us and the claim is respectfully declined. Yours truly, Charles Gr. Hopper, G. F. A.' We would like to hear from you whether we would have any legal claim against the transporta- tion company." As I understand the facts, the shipping receipt in question contained no conditions, but the Goodrich Company stamped upon it the notation : "Received a,t shipper's or owner's risk of dam- age or breakage." In a contract of affreightment, the general rule is that the law of the place where the contract is made governs its construction, unless the parties had in view the law of some State other than that where the con- tract was made. State v. N. J. Steam Nav. Co., 15 Conn., 539. R. R. Co. v. Beebe, 174 111., 13. Transp. Co. v. Furttiman, 149 111., 66. R. R. Co. v. Boyd, 9 111., 268. R. R. Co. v. Smith, 74 111., 198. Penn. Co. v. Fairchild, 69 111., 197. The present contract is, therefore, governed by the laws of Illinois. The Illinois statute (Sec. 33, Chap. 114, Rev. Stat. of 111. ) provides : "That whenever any property is received by a common carrier, to be transported from one place to another, within or without this State, it shall not be lawful for such carrier to limit his com- mon law liability safely to deliver such property at the place to which the same is to be transported 511 by any stipulation or limitation expressed in the receipt given for such property. ' ' See also Sec. 1, Chap. 27, Vol. 1, S. & C. Eev. Stat, p. 899. I am of the opinion that the Illinois Statute, above quoted, is applicable to the shipment in question, even though the shipment was interstate. It is well settled that a statute of this character applies to interstate shipments, as well as to local shipments, as it is not considered as a regulation of commerce between the States. This being so the restriction stamped on the shipping receipt is not binding, as it is a violation of the statute of Illinois above referred to. Ry. Co. v. Solan, 169 U. S., 133. E. E. Co. v. Patterson, 169 U. S., 311. Solan v. Ey. Co., 63 N. W., 692 (Iowa). Ey. Co. v. McCann, 174 U. S., 580. Burgess v. W. U. T. Co., 46 S. W., 794 (Tex.). Armstrong v. Ey. Co., 46 S. W., 33 (Tex.). Grain Co. v. Railroad Co., 75 S. W., 638. I am not informed as to whether any bill of lading was issued, or whether the receipt in question is the only contract between the parties. Although a carrier can not limit its liability in its receipt, it may do so by special contract. A bill of lading may be both a re- ceipt and a special contract. But in Illinois the law is well settled that there must be an express assent to the conditions of any such bill of lading or special contract. Outside of the statute, therefore, the con- ditions stamped on the shipping receipt in question are not binding unless there was an express assent. A mere notice printed or stamped on a receipt does not bind the shipper, although he accepted it without dis- sent. But the receipt of a bill of lading containing restrictions with knowledge on the part of the shipper, is binding on such shipper as fully as if he had signed it. Western Transp. Co. v. Newhall, 24 111., 466. Transp. Co. v. Theilbard, 86 111., 71. I. C. R. R. Co. v. Frarikenburg, 54 111., 88. Adams Exp. Co. v. Stettanus, 61 111., 184. 186. 512 Ry. Co. v. Montfort, 60 111., 175, 178. Anchor Line Co. v. Dater, 68 111., 359, 371. Field v. R. R. Co., 71 111., 458, 462. Boscowitz v. Express Co., 93 111., 563. E. & W. Transp. Co. v. Dater, 91 111.. 195. C. & A. R. R. Co. v. Davis, 159 111., 53. C. & N. W. Ry. Co. v. Simon, 160 111., 648. Ry. Co. v. Calumet, 194 111., 9. I am therefore of the opinion that if the receipt was the only contract between the parties the restric- tion stamped thereon is not binding on the shipper. If there was a special contract restricting liability, to be binding such contract must come within the rules above set forth. THE LIABILITY OF AN EMPLOYEE ON CONTRACTS MADE BY HIS EMPLOYES OE AGENTS. (Selz, Schwab & Co., January 19, 1905.) "In accordance with the conversation which Mr. Selz had with you recently, we present herewith a case which is of interest to every manufacturer and employer in the State, in that it involves a question of how far an employer is liable for the alleged acts of his employes. The facts are as follows : In the early part of May we asked for bids for painting and lettering our wagons. Under date of May llth we received a proposition from Fred L. Meckel, of 77-83 East Thirteenth street, Chicago, which we accepted in writing under date of May 28th. One of the wagons was delivered to Fred L. Meckel 's establishment forthwith. It was reported to the writer by the barn boss a couple of weeks later that Mr. Meckel had not commenced work on the wagon. The barn boss was instructed to see Mr. Meckel at once and give instructions that the work be rushed through im- mediately. On going to Mr. Meckel 's establish- 513 ment for this purpose, the barn boss instructed him to rush the work as quickly as possible, and also told him that wherever there was a bolt loose or a nut gone to replace same before the painting was done, for which slight repairs we would have been willing to pay in addition to the price speci- fied in the enclosed order. Mr. Meckel, it seems, took it upon himself to do a large amount of ad- ditional work on the wagon and rendered us a bill for same, which was something over five times the amount of the cost of painting and lettering for which we had given written instructions. Mr. Meckel claims that he was instructed to do this work by the barn boss, who denies that he issued such instructions. The question is, whether after an employer has given a written order for certain work at a cer- tain price, he shall be liable for additional work that may be done entirely outside of the original bid and acceptance, though such work has been ordered by some employe 1 It would seem to us that if such is the case, we would be liable for thousands of dollars instead of hundreds, as in this case. We would like very much to have this case in- quired into carefully and to be advised of the re- sult." A principal is ordinarily bound by the acts of the agent within the agent's actual authority, which in- cludes not only the precise act which he expressly au- thorizes him to do, but whatever usually belongs to the doing of it, or is necessary to its performance. The principal is also bound by the acts of the agent within the apparent authority which the principal him- self knowingly permits the agent to assume or which he holds the agent out to the public as possessing. Power to act generally in a particular business or a particular course of trade, will constitute a general agency. The authority of a general agent is not un- limited but must necessarily be restricted to the trans- action within the scope of the business of the princi- 514 pal. In the case of a special agent, the authority must be strictly pursued and the principal is not bound if the agent exceeds his authority. It is the duty of all parties dealing with a special agent to inquire into the nature and extent of his authority. But the prin- cipal is bound by the acts of a general agent when acting within the general scope of his authority, as third persons are not bound by private instructions from a principal to a general agent. Vol. 1, Ency. of Law (2d Ed.), pp. 988 et seq. Mechem on Agency, Sees. 278 et seq. Doan v. Duncan, 17 111., 272. Packet Co. v. Parker, 59 111., 23. Baxter v. Lamont, 60 111., 237. In the present case, the act of the barn boss was entirely independent of the contract. The question, therefore, resolves itself into one of fact, to be de- termined from all the circumstances. The criterion is the character of the authority bestowed by the prin- cipal on the agent. If the agent had apparent authority to order repairs on the wagon, the principal is bound. The authority of the agent may be shown by his acts about the business of his principal, or by acquiescence in them when made known to the principal. The pre- vious course of dealing or the ratification of prior unauthorized acts, would be strong evidence of the extent of the authority. On the other hand, the fact that the principal called for bids and accepted them in writing is evidence of the lack of authority in the agent. Of course, if the repairs were not, in fact, ordered by the agent, the principal is not liable. But this is a question of fact and of veracity between the agent and the contractor. The law applicable to the present inquiry is simple. But the case presents a question of fact which a jury (if there be a law-suit) must pass on. It is impossible to say how a jury would view the controversy. In the first place, upon the issue of ordering the work done there is a clear issue of veracity. The barn boss denies, while the wagon-maker asserts it. The wagon- maker's position is supported by the fact that the barn boss admits ordering a few repairs. Besides this, the work was, in fact, done, which supports the theory of the wagonmaker. Again, not to hold Selz, Schwab & Co. for the work in controversy would be making a present of it to them and casting the whole loss to the wagonmaker. The wagonmaker will, in such a controversy, be likely to have the sympathy of a jury. If there were no controverted issue of fact, so that the case could be taken from the jury when plaintiff's evidence is in, a different situation would present itself. In the present case I am inclined to the view that if the case were to go to the jury a ver- dict adverse to the defendant would probably be ren- dered. There is no sure way of preventing a contro- versy like that under consideration. If the agents are absolutely prohibited from giving any order of any kind unless they are in writing and if those dealing with agents have written or printed notice of such fact, there will be less opportunity for occurrences of this kind. WHETHER A CAREIER IS LIABLE FOR LOSS OR DAMAGE TO BAGGAGE WHERE THE TRUNKS CONTAIN SAMPLES AND NOT WEARING APPAREL; AND WHETHER CARRIER CAN CHARGE STORAGE. (Wheeler & Wilson Mfg. Co., January 19, 1905.) "We wish you would please advise us, through the Association's attorney, if the railroad com- panies are liable for a trunk or its contents, when lost, or for breakage, if the contents of the trunk taken as baggage, and for which a check is given, are samples. The railroad company claims that it has a right to exclude from baggage cars any- thing and everything other than baggage which is the wearing apparel of the passenger. Also kindly advise us whether or not, if a per- son arriving in a city at, say, 9 a. m., with a trunk, calls the next day at 5 to re-check it on the same line, the owner is liable for 25 cents charges. The checks in both instances are the regular checks, with no advice or restrictions on either." In my opinion rendered to the Association under date of October 1, 1902, I discussed the liability of a carrier for merchandise samples carried as baggage. The subject is also covered in my opinion of January 5, 1905, in response to an inquiry from Selz, Schwab & Co., to which I refer. Merchandise samples are not "baggage" and if the carrier receives as baggage trunks containing samples without knowledge of that fact, it is not liable for damage to the samples, unless caused by its gross neg- ligence. If, however, a carrier knowing trunks to con- tain samples, accepts them as baggage, it will be re- sponsible for any injury thereto, just as for baggage. The facts are not before me and I can not, there- fore, express an opinion as to whether the carrier checked the trunk in question with knowledge either actual or constructive that it contained samples. Knowledge on the part of an agent of the carrier is notice to the carrier. The inquiry depends peculiarly on the facts. A carrier is allowed to exact a reasonable charge for the storage of baggage after allowing a reasonable time for it to be removed. The charge is of the same nature as that for the storage of freight in a ware- house after receipt. I am of the opinion that a charge of twenty-five cents storage for each twenty-four hours or fraction thereof, after the first twenty-four hours from the receipt of the baggage, is reasonable. 3 Ency. of Law (2d Ed.), p. 570. REASONABLENESS OF CERTAIN RULES IN RELATION TO THE INSPECTION OF STEAM BOILERS. (Fred W. Wolf Co., Jan. 31, 1905.) "You are no doubt aware that the City of Chi- cago is enforcing an ordinance passed about a year ago regarding steam boilers. We have been obliged to change blow-off pipes to 4" and are re- quested by notice to change two more. We under- 517 stand that the Hartford Insurance Company does not favor the increase in the size of the pipe and we would kindly ask you whether you have had this matter up for discussion and whether you have come to any conclusion, from a legal stand- point as well as otherwise regarding it ? ' ' In my opinion of Aug. 1, 1904, to the Association, and in my opinion of August 1, 1904, to the Aermotor Company, I discussed the subject of steam boiler in- spection. The regulation in question was made by the board of inspectors of steam boilers and steam plants in October, 1903. In these regulations the sizes of blow-off pipes are prescribed for different diameters of horizontal tubular boilers. The city has power to regulate this subject-matter by virtue of the powers granted to city councils by the City and Village Act of Illinois (Kurd's 1903, Eev. Stat., Ch. 24, Par. 62, Sec. 1, Cl. 63 and Cl. 64.) Clause 63 provides that the city council shall have power ''to prevent the dangerous construction and con- dition of chimneys, fire-places, hearths, stoves, stove pipes, ovens, boilers and apparatus used in and about any building and manufactory, and to cause to be removed or placed in a safe condition when considered dangerous; to regulate and pre- vent the carrying on of manufactories dangerous in causing and promoting fires; to prevent the deposit of ashes in unsafe places, and to cause all such buildings and enclosures as may be in a dangerous state to be put in a safe condition." Clause 67 empowers the city council "to provide for the inspection of steam boilers." The department for the inspection of steam boilers and steam plants was created by ordinance of March 23, 1903, in effect May 1, 1903. (1902-03 Council Pro- ceedings, p. 2819.) This ordinance and the amend- ment thereto contain all the provisions on the subject. The board has reasonable discretion to make general rules not inconsistent with the ordinance, and under it to make special rulings in particular cases. The 518 ruling as to the sizes of blow-off pipes is a question of reasonableness. If a pipe of 4" is a reasonable size for the boiler in question, the ruling and order of the department of inspection is valid and can be enforced. Of course, such a question of reasonableness is one of fact which must be determined from the opinions of experts familiar with such matters. PAYMENT OF REBATES ON REDEMPTION OF MILEAGE BOOK COVERS. (Pitkin & Brooks, February 1, 1905.) "We are to-day in receipt of the enclosed letter from The Western Passenger Association, in which they refuse to honor rebate checks on mileage Credential No. A 16745, issued in the name of Mr. E. S. Gregory, one of our traveling men, which expired May 25th last, stating that on the con- tract which Mr. Gregory signed the limit of time for applying for rebate on this Credential expired Nov. 25, 1904, although this mileage was all used within the specified time, and as a matter of fact, we presume they would have no right to issue rebates on an expired book if they did not expect to honor them. Will you kindly refer this to your attorney and get his opinion as to whether we have a right to enforce the collection of this' rebate or not, and oblige. ' ' The letter from the chairman of the Western Mileage Bureau states : "We have received from you for rebate mile- age credential No. A 16745 issued in the name of E. S. Gregory, which expired May 25, 1904. When he purchased this credential he signed a contract to the effect that if the credential was used by him for not less than 2,000 miles of travel within a period of one year from the date of its purchase, and if credit checks are surrendered to this bureau representing not less than that number of miles, all made within the specified time, rebate of the 519 difference between two cents per mile for the total distance traveled, and the amount paid for tickets would be allowed, provided application for rebate is made within a period of 18 months after the date on which the credential was purchased. The time limit for applying for rebate on this credential expired, Nov. 25, 1904. "When these credentials were placed on sale it was found necessary to incorporate in the con- tract the clause requiring that application for rebate be made within that time in order to provide against an accumulation of mileage credit checks and passage tickets, as many thousands of credit checks and tickets are issued daily in connection with credentials. This time limit for applying for rebate was, and is, considered as being extremely liberal. "We regret, therefore, that in accordance with our rules and the terms of the contract entered into, we would not be warranted in allowing any rebate, much as we would like to." In this case the traveling salesman of Pitkin & Brooks signed a contract limiting the time of redemp- tion. This constitutes a special contract, made in con- sideration of the reduced rate. Where the purchaser signs the ticket it must be presumed, in the absence of fraud, misrepresentations, or mistake, that he read the conditions and assented to them, and he will be bound although he did not in fact read them. 28 Encl. of Law, 176 (2nd ed.). Where the passenger has entered into a special con- tract with the carrier, evidenced by his ticket, he is entitled only to those rights which the ticket confers, and is bound to perform the obligations which the ticket imposes upon him. Hutchinson, Carriers (2d ed.), sec. 580 A. I am of the opinion that the railroad companies can legally provide a reasonable time within which a rebate may be claimed, and therefore the mileage bureau can- not be compelled to pay the rebates in question if it 520 does not choose to do so. I am of the opinion that six months is a reasonable time. I assume, however, that all parties are treated alike and that there is no element of discrimination present. AS TO THE NECESSITY OF AN EMPLOYER PAYING AN ASSIGN- MENT OF WAGES UNDER THE LAW OF ILLINOIS, WHEN THE ASSIGNMENT IS MADE BY POWER OF ATTORNEY. (Gross Printing Press Co., February 1, 1905.) "We enclose you herewith a document handed to us presumably from the Boston Outfitters Com- pany. There was nothing said; the document was simply handed to one of the office help. The ques- tion with us is, should this be construed as a legal notice that from the time of its delivery to us the man's pay as long as he works at the factory should be considered as held up for the benefit of this concern, or in order to enforce this document would it be necessary for these people to com- mence legal proceedings by garnishment to make us liable for the man's pay? If this document is held good we doubt whether the man will have a pair of socks left to wear. We would like the opinion of Mr. Levy Mayer as to the legality of this document, and how far it affects us by simply having it left at our place of business without any demands whatever being made. ' ' The assignment contract is as follows : "FOR A VALUABLE CONSIDERATION, to me in hand paid by BOSTON OUTFITTERS COMPANY, the receipt of which is hereby ac- knowledged, I do hereby sell, assign and set over to the said BOSTON OUTFITTERS COMPANY, its successors and assigns, all wages and claim for wages, or commission, earned and to be earned, and all claims or demands due or to become due me from Goss Printing Press Company, their heirs or assigns, or any other firm, person, com- pany or corporation, by whom I may hereafter 521 be employed, or who may owe me money for any consideration whatsoever, up to and including the first day of January, 1908 ; and I hereby authorize, and direct the said party or parties named above, or any of them, to pav the said demand and claim and all thereof to "the said BOSTON OUT- FITTERS COMPANY, its successors, assigns or attorneys. 1 do hereby constitute and appoint the said C. Wetmore, his heirs, executors, administrators or assigns, my attorney in my name, to take all legal measures which may be proper or necessary for the complete recovery and enjoyment of the claim or claims hereby assigned, and I hereby author- ize and empower him to receive any money which may become due hereon and receipt for same in my name, hereby ratifying any acts my said attor- ney may take therein. WITNESS my hand and seal this 25th day of October, 1904. (Signed) ANDREW GAYDOS. (Seal)" The assignment contract shows on its face what it is. It has come into the hands of the company under cir- cumstances susceptible of no other construction than that of an intent to give notice. The company has, therefore, received actual notice and would not be heard to say that it had no notice. An employe has a right to assign his unearned wages, but such assignment is not operative unless made under a subsisting contract of employment. If the employe was in the employ of the Goss Printing Press Company at the time the assignment was made, it is valid and enforceable as to all wages earned by him while employed by the printing press company up to and including January 1, 1908. The assignment is not operative as to wages to be earned by him in any new employment should he leave the service of the printing press company. An almost identical contract was upheld by the Illi- nois Supreme Court in Mallin v. Wenham, 209 111., 252. The court held that an assignment of wages to 522 be earned in the future under an existing employment, even though the employment is for an indefinite time, is not against public policy and is valid if made for a valuable consideration and untainted with fraud. The printing press company, in my opinion, should hold these funds subject to the assignment, pending an investigation of the correctness of the date, genu- ineness of the signature, etc. It does not appear that the debtor disputed the consideration for the assign- ment, or claims fraud, or has given the printing press company notice not to pay the wages to the assignee. If that element were in the case, the parties could be required, at the instance of the printing press com- pany, to interplead so that the company may know to whom to pay the money. It may be the fact, as frequently happens, that the name of the firm by whom the wages are payable, the date of the assignment, and the signature of the em- ploye were filled out on a blank assignment by virtue of another and separate power of attorney given to the creditor. The modus operandi is this : The debtor on the mak- ing of a loan gives a power of attorney ; with this power of attorney the creditor makes out a new as- signment of wages with each change of employment. The real date of the power of attorney, therefore, be- comes important. It must have been given during a subsisting employment in order to be valid as to the wages to be earned during that employment. In City of Chicago v. People, 98 111. App., 517, 521, the court said : "The power of attorney, though irrevocable in terms, does not amount to an assignment when no assignable interests exist at the time the power is made." The Appellate Court cites, with approval, Lehigh Valley R. Co. v. Woodring, 116 Pa. St., 513, where there was a power of attorney that expressly author- ized the filling up "of the power of attorney with the name of any person, firm or corporation for whom I may be 523 working at any time during the time I am receiv- ing groceries and provisions as aforesaid from the said store." The lower court held that it was against public policy that the laborer should beggar himself and family by making merchandise of what is virtually his entire wage-earning power. In affirming the decision of the lower court, the Supreme Court of Pennsylvania said : "The attempt was to assign that which had no existence either substantial or incipient. There was no foundation or contract on which an indebt- edness might arise. It was the mere possibility of a subsequent acquisition of property. This is too vague and uncertain. It can not be sustained as a valid assignment and transfer of property." The Printing Press Company should satisfy itself that the assignment was executed while the debtor was in its employ, if directly executed by him and bearing his signature. If not directly executed by him, but under a separate power of attorney, it should satisfy itself that the power of attorney likewise was given during a time when he was actually in the employ of that company. The whole matter can, however, be disposed of by a bill of interpleader in equity which will protect the Goss Printing Press Company and compel the different claimants to establish their re- spective rights. The present query is another illustra- tion of the necessity for remedial legislation. NOTE: See the later opinion of March 27, 1906, to Stromberg, Allen & Co., and the note thereto. Ed. AS TO THE LEGALITY OF A SPECIAL CONTRACT BETWEEN SHIPPER AND CARRIER, RELEASING CARRIER'S LIABILITY. (Electric Appliance Company, February 2, 1905.) The Electric Appliance Company encloses form of special contract with the Chicago, Burlington & Quincy Eailway Company, also communication from M. A. Fountain & Co., enclosing contract with the Chicago, Eock Island & Pacific Eailway Company. The latter contract provides: 524 "THIS AGREEMENT, made this day, between the Chicago, Rock Island & Pacific Railway Com- pany, party of the first part, for itself and con- necting lines, and M. A. Fountain & Co., party of the second part, witnesseth: For and in consid- eration of the price, viz. : Release tariff rates sub- ject to the different classifications now in use, or which may come in use, during the existence of this contract, at which said Company agrees to transport all shipments requiring release and guarantee by its lines from or to any station on the lines of the Chicago, Rock Island & Pacific Railway, or to or from any station on the line of any railroad company with which the road of the said first party connects, it is hereby mutually agreed that the said companies shall not be liable for any damage said property may sustain from breakage, or from being damaged by fire, or w T ater, or for any other cause whatever except such as may result from collision of trains, or cars being thrown from the tracks, and that no action for any damages shall be prosecuted, except against the company upon whose road the same shall have occurred. This contract is to extend and apply to all such shipments or articles coming under the head which are specified at released rates in the classifications between the points concerned, shipped by or to party of the second part up to December 31, 1905, and with this provision, that either party may, at pleasure, annul this contract, by giving ten days' written notice of intention to do so." The other contract is substantially the same. Both of the contracts attempt to limit the common- law liability of the carrier, and their conditions are made binding by procuring the shipper's signature thereto. The carrier can only limit the common-law liability in this State by special contract, to which the shipper assents. The carrier is now attempting to obviate the necessity of procuring this assent every time a shipment is made, by substituting the .present 525 contract, which limits the carrier's liability on all ship- ments made during the year. I have advised the members from time to time that in my opinion they are entitled in this State to have their goods carried at the present schedule rates, with common carrier's common-law liability. I know of no reason for signing the contracts in question unless the shippers obtain adequate consideration for so doing. The carriers in the Western classification territory are evidently trying to accomplish what the Eastern roads have thus far unsuccessfully attempted to ac- complish by the adoption of the uniform bill of lading. WHETHEK MANUFACTURERS ARE COMPELLED TO ANSWER INQUIRIES IN RELATION TO THEIR BUSINESS, REQUESTED BY THE CENSUS BUREAU UNDER THE UNITED STATES LAW CREATING A CENSUS OF MANUFACTURES. (The Illinois Brick Company and other members of the Association, February 4, 1905.) The Illinois Brick Company and other members of the Association enclose the "Schedule of Questions for the Census of Manufacturers, 1905," circulated by the Permanent Census Bureau, upon which schedule, and the questions therein contained, my opinion is asked. The schedule is dated January 3, 1905, and com- prises thirteen general subjects of inquiry, including character of organization, character of industry, cap- ital invested, proprietors and firm members, salaried employes, wage-earners, average number of wage- earners, employes each month, miscellaneous expense, materials used, products, classified earnings of wage- earners, time factory in operation, power, etc. Numerous questions covering these general subjects of inquiry are submitted. There is also a supplemental schedule relating to brick yards, with general subjects of inquiry relating to quantity and cost of materials used, products, machinery, kilns, etc. These questions, if answered, will furnish a comprehensive statement and review of the business of each manufacturer. 526 A census, in a general sense, is denned as an official reckoning or enumeration of the inhabitants and wealth of a country. (Bouvier, Law Dictionary.) In the Century Dictionary and Encyclopedia, ''cen- sus" is defined as: "A registering and rating of persons and prop- erty, wealth; an official enumeration of the inhab- itants of a state or country, with details of sex and age, family occupations, possessions, etc." And in Anderson 's Law Dictionary it is defined as : "A rating, numbering, valuing, assessing." In the United States the authority for making the census is derived from the Constitution (Art. I, Sec. 2, par. 3) : "Representatives and direct taxes shall be ap- portioned among the several states which may be included within this Union, according to their re- spective numbers, which shall be determined by adding to the whole number of free persons, in- cluding those bound to service for a term of years and excluding all Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States and within every subsequent term, of ten years, in such man- ner as they shall by law direct." Article I, section 9, also provides: "No capitation or other direct tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to be taken." From time to time statutes have been passed by Con- gress providing methods for taking the censuses and detailing the subjects of inquiry. The census has here- tofore always been taken every ten years, in accord- ance with the Constitution. A permanent census bureau was established for the first time by the act of March 6, 1902. (Ch. 139, 32 St., 51.) Chapter 419 of the act of March 3, 1899 (30 St., 1014), provides for "taking the twelfth and subsequent censuses." Section 7 of that act provides: ' ' That the Twelfth Census shall be restricted to 527 inquiries relating to the population, to mortality, to the products of agriculture and of manufac- turing and mechanical establishments." It also provides that : ' ' The schedules of inquiries relating to the prod- ucts of manufacturing and mechanical establish- ments shall embrace the name and location of each establishment, character of organization, whether individual, co-operative, or other form; date of commencement of operation; character of busi- ness or kind of goods manufactured; amount of capital invested; number of proprietors, firm members, co-partners or officers, and the amount of their salaries; number of employes, and the amount of their wages; quantity and cost of ma- terials used in manufactures ; amount of miscel- laneous expense ; quantity and value of products ; time in operation during the census year; char- acter and quantity of power used, and character and number of machines employed. The form and sub-division of inquiries necessary to secure the information under the foregoing topics relating to manufacturing and mechanical industries shall be in the discretion of the Director of the Census. Whenever he shall deem it expedient, the Director of the Census may withhold the schedules for said manufacturing and mechanical statistics from the enumerators of the several sub-divisions in any or all cases, and may charge the collection of these statistics upon special agents, to be employed without respect to locality." Section 22 of the same act provides : "And every president, treasurer, secretary, di- rector, agent, or other officer of every corporation, and every establishment of productive industry, whether conducted as a corporate body, limited liability company, or by private individuals, from which answers to any of the schedules, inquiries or statistical interrogatories provided for by this act are herein required, who shall, if thereto re- quested by the Director, supervisor, enumerator 528 or special agent, wilfully neglect or refuse to give true and complete answers to any inquiries au- thorized by this act, or shall wilfully give false information, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not exceed- ing $10,000, to which may be added imprisonment for a period not exceeding one year. ' ' The Act of March 6, 1902, Ch. 139 (32 St., 51), pro- vides : "That the Census Office temporarily established in the Department of the Interior, in accordance with an Act entitled 'An Act to provide for tak- ing the Twelfth and subsequent censuses,' ap- proved March 13, 1899, is hereby made a perma- nent office." Section 6 of that act provides : "That all the provisions of the Act of March 3, 1899, relating to the Twelfth Census, not incon- sistent with the provisions of this Act, shall re- main in full force and effect for the taking of the Thirteenth and subsequent censuses." Section 9 of that act provides, in part : "That in the year 190*5, and every ten years thereafter, there shall be a collection of the sta- tistics of manufactures, confined to manufacturing establishments conducted under what is known as the factory system, exclusive of the so-called neighborhood and mechanical industries; and the Director is hereby authorized to prepare such schedules as in his judgment may be necessary to carry out the provisions of this section." Section 12 provides : ' ' That the supplemental acts amendatory of the Act of March 3, 1899, approved February 1, 1900, May 10, 1900, June 2, 1900, February 23^1901, are hereby repealed; and all provisions of the Act of March 3, ,1899, inconsistent with this Act are here- by repealed." The act of February 14, 1903, Ch. 552 (32 St., 825), provides : 529 "That the Census Office, and all that pertains to the same, be, and the same hereby is, trans- ferred from the Department of the Interior to the Department of Commerce and Labor, to remain henceforth under the jurisdiction of the latter." It will be noticed that the acts above quoted pro- vide for a census of manufactures in 1905 and every ten years thereafter. This is not in accordance with the constitution, as the twelfth census was taken in 1900 and the next census thereafter would be 1910. In Republic of Hawaii v. Paris, 10 Hawaiian Rep., 579, it was held that where a statute directed the tak- ing of a census as to number, sex, population, etc., no authority was given to make a census of the wealth of the inhabitants. If, therefore, the taking of the pres- ent census is not in accordance with the constitution, it can not be justified thereunder. The authority for the statute of 1902 is not within the purview of the constitutional provisions relating directly to the census. I am of the opinion, however, that it can be supported under the implied powers of Congress, as designated in article I, section 8. It is there provided that Congress shall have power "to make all laws which shall be necessary and proper" for carrying into execution the powers expressly granted to Congress. Such a census would probably be held to be a valid exercise of the powers of Congress in aid of future legislation. The information derived from a census of manufactures is valuable and, in some respects, almost necessary to Congress in enacting laws regarding the levying of taxes, duties, imposts and ex- cises and internal revenue, appropriations for develop- ment and improvement of waterways, fostering the merchant marine, establishing trade relations, provid- ing a suitable volume of money and for many other purposes. In Cooley on Constitutional Law, p. 93, it is said : "The necessity that shall justify the making of particular laws is not an absolute necessity, but Congress can make any law, not by the Constitu- tion expressly or impliedly prohibited, which it shall deem conducive to the execution of any ex- press power." Nevertheless there is undoubtedly a limit to the ex- tent that Congress may compel the giving of informa- tion concerning the private business of the citizen for census purposes. Although census interrogatories have become more and more searching, they have pro- voked so little opposition that we have in the courts no judicial interpretation of the extent of the powers of Congress in this respect. So far as I have been able to find, only four cases have come before the fed- eral courts in relation to the census, and in those the question of the constitutionality of the census act and of the validity of the inquiries of the kind here under consideration were not passed upon. U. S. v. Sarle, 45 Fed., 191. U. S. v. Mitchell, 58 Fed., 993. U. S. v. Moriarity, 106 Fed., 886. Ching v. U. S., 118 Fed., 538, 55 C. C. A., 304. No case involving the census has reached the United States Supreme Court for final adjudication. Refer- ences to the census, however, in the nature of obiter dicta, occur in some of the decisions. In the dissenting opinion of Mr. Justice Brewer in Interstate Commerce Commissions. Brimson, 154 U. S., 447 (dissenting opinion, 155 U. S., 5, 10), it is said arguendo, that it is the duty of every citizen to re- spond to the inquiries of the census officers and fur- nish the information desired, and that "there is no question of the lawful power of Con- gress to elicit this information; possibly none as to its power to provide that refusal to give the information shall be deemed a misdemeanor and prohibited and prosecuted and punished as such." This, however, was merely obiter, and was in a dis- senting opinion, and no question of the kind was be- fore the court. Chief Justice Marshall, in Loughborough v. Blake, 5 Wheat., 317, declared : "The direct and declared object of the census is 531 to furnish a standard by which representatives and direct taxes may be apportioned among the several states." The United States Supreme Court, in Kilbourn v. Thompson, 103 U. S., 168, has held that no general power exists in either branch of Congress, or in any administrative body established by Congress, to make inquiry into the private affairs of the citizen. And in Boyd v. U. S., 116 U. S., 616, 630, it is said that the principles that embody the essence of consti- tutional liberty and security forbid all invasions on the part of the Government and its employes of the sanctity of a man's home and the privacies of his life. Again, Mr. Justice Field (of the United States Su- preme Court), while on circuit, in an elaborate opinion (In re Pacific Railway Com., 32 Fed., 241), dis- cussed the powers of an administrative body created by Congress to make inquiry into the private affairs of a citizen. Reference is there made to the census act then in force, and Mr. Justice Field said, in speaking of the census interrogatories: "There is no attempt in such inquiries to pry into the private affairs and papers of anyone, nor are the courts called upon to enforce answers to them. Similar inquiries (as to birth, marriage, oc- cupation and matters of general interest) usually accompany the taking of a census of every country and are not deemed to encroach upon the rights of the citizen. And in addition to the inquiries usually accompanying the taking of a census, there is no doubt that Congress may authorize a com- mission to obtain information upon any subject which, in its judgment, it may be important to possess. It may inquire into the extent of the pro- ductions of the country of every kind, natural and artificial, and seek information as to the habits, business and even amusements of the people. But in its inquiries it is controlled by the same guards against the invasion of private rights which limit the investigations of private parties into similar matters. In the pursuit of knowledge it can not 532 compel the production of the private books and papers of the citizen for its inspection, except in the progress of judicial proceedings, or in suits instituted for that purpose, and in both cases only upon averments that its rights are in some way de- pendent for enforcement upon the evidence those books and papers contain. Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that invoices, not merely protection of his per- son from assault, but exemption of his private affairs, books and papers from the inspection and security of others. Without the enjoyment of this right, all other rights would lose half their value. The law provides for the compulsory production, in the progress of judicial proceedings, or by di- rect suit for that purpose, of such documents as affect the interests of others, and also, in cer- tain cases, for the seizure of criminating papers necessary for the prosecution of offenders against public justice, and only in one of these ways can they be obtained, and their contents made known, against the will of the owners. ' ' In the same case Judge Sawyer, in his concurring opinion, said: "A general roving, offensive, inquisitorial com- pulsory investigation, conducted by a commis- sion without any allegations, upon no fixed prin- ciples, and governed by no rules or laws, or of evi- dence, and no restrictions except its own will, or caprice, is unknown to our constitution and laws; and such an inquisition would be destructive of the rights of the citizen, and an intolerable tyr- anny. Let the power once be established, and there is no knowing where the practice under it would end." It will be noticed, however, that the census act there referred to restricted the inquiries to birth, marriage, occupation and matters of general interest. In Wallace v. Ry. Co., 94 Ga., 732, 22 S. E., 579 533 (1894), the right of a citizen to protection in his pri- vate business is upheld. The court said: " Liberty of speech and writing is secured by the Constitution and incident thereto is the cor- relative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information, can not be coerced by mere legislative mandate at the will of one of the parties and against the will of the other. Compulsory private discovery, even from corporations, enforced not by suit or action, but by statutory terror, is not allowable where rights are under the guardianship of due process of law. ' ' In U. S. v. Moriarity, 106 Fed., 886 (1901), where a census enumerator was held indictable for making fictitious returns, there are dicta to the effect that Congress may lawfully obtain information from manu- facturing interests through the medium of the census, but in that case there was no discussion as to the scope of such inquiries or the limitations upon the same. The fourth amendment to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against un- reasonable searches and seizures, shall not be vio- lated, and no warrants shall issue but upon prob- able cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ' ' The fifth amendment provides: "No person shall be held to answer for a capi- tal, or otherwise infamous crime, unless on a pre- sentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ; nor shall be compelled in any crim- inal case to be a witness against himself, nor be deprived of life, liberty, or property, without J 534 due process of law; nor shall private property be taken for public use without just compensation." If any of the proposed inquiries require persons to disclose their private affairs or their business secrets, or if the compiling of statistics, in a particular case entails a great amount of labor and expense, this may constitute an unreasonable search and seizure or a taking of private property without due process of law or without proper compensation, in violation of the constitutional provisions above quoted. In U. ,8. v. Mitchell, 58 Fed., 993 (1893), it was held that the provision of the census act imposing a penalty upon officers of corporations "from whom answers are herein required" was ineffective because there was no provision, in that or any other act, requiring such corporation or their officers to answer questions. The court took occasion to discuss certain points which had been urged, but were not necessary for the decision of the case. The court said (p. 999) : "In view of the conclusion under the first ob- jection to this indictment, I might possibly pass this graver objection without further considera- tion of the claims of counsel, as above stated. But as further legislation will be necessary to remedy the defects found in existing statutes, should this opinion be affirmed by the Supreme Court, it may not be amiss to suggest that there may be a limit to the power of Congress to compel a citizen to disclose information concerning his business undertakings, and the manner in which they are carried on. This limit must relate, not only to the kind of information he may properly refuse to disclose, because it may be equivalent to the appropriation of private property for 'pub- lic use without just compensation, but also to the extent of the information required, as well as to the time within which it shall be given. Certain kinds of information valuable to the public, and useful to the legislative branches of the govern- ment as the basis for proper laws, have hereto- fore been voluntarily given, and may properly 535 be required from the citizen, when it is not of property value, or when the collection, compila- tion or preparation thereof does not impose great expense and labor for which compensation is not provided. It is not infrequent, however, that an- swers to questions propounded in some schedules, if fully and properly prepared, involve the collec- tion and compilation of facts that require the labor of a large force of clerks for days and weeks, entailing great expense and embarrassment to the ordinary business of the citizen. Is it within the power of Congress to make such answers com- pulsory, and require the citizen to neglect his usual business, with loss, and to prepare this informa- tion at a great personal expense, without proper compensation? Or, if a citizen, by his long ex- perience in a special line of business, and by his superior organizing and administrative ability, has so systematized it that he can carry it on at a much less expense and with greater facility than others, is it right to compel him to disclose the in- formation so acquired, and thereby open to his rivals in trade the methods by which he has been able to outstrip them in the sharp competition for business? Is not the system so established, and the knowledge so acquired, as much a property right to him as the land and shop in which he con- ducts his business? And can he be compelled to part with the former without due compensation more justly than with the latter! The zeal with which such information is sometimes solicited to maintain favorite theories of public officials, or to afford the basis for discussing economical ques- tions, often leads to excesses, and imposes upon the citizen duties for which no just compensation is afforded, either in money or in his proportion of the reward of the good results to follow to the public. As before stated, when such information is re- quired as the basis for proper legislation or the just enforcement of the public laws, the power to 536 compel its disclosure may exist, and, if unusual ex- pense attends its preparation, proper remunera- tion to the citizen can be made ; but the suggestion that the information having a property value may be demanded, which the citizen may not be obliged to impart without due compensation, so earnestly pressed by the learned counsel in this case, still remains undisposed of, and a proper subject for consideration by Congress in the future legisla- tion that may be needed to enforce such demands by the census bureau. Of course, these sugges- tions are not intended to apply to the power of Congress to compel answers to questions pro- pounded to the officers of railroad, telegraph and insurance companies, corporations of a public character, over the business methods of which the legislative power may be assured. As to such corporations, the public good requires that whole- some and strict supervision should be exercised, and all information needed as to the basis for such legislation and control should be produced when required. ' ' I am, therefore, inclined to the opinion that in so far as the questions propounded by the Census Bureau in this schedule require unnecessary and injudicious disclosure of private business affairs, or disclosures such as might, if revealed, do injury to the business of a particular person or give advantage to competitors, such person is probably under no compulsion to an- swer. But in so far as the questions to be answered relate to matters that are not private, or are merely general in character, I advise that the same be an- swered. It is impossible in a general opinion to deter- mine what specific questions should or should not be answered. The manufacturer must, in the first in- stance, determine what question would work harm to him if revealed. It is a question principally of de- gree and circumstance as to whether a particular in- quiry will involve an unnecessary disclosure of pri- vate business. The statistics, when compiled for the country are, of course, of great value, and as the 537 Census Bureau promises that all answers will be held absolutely confidential, there may possibly not be any disclosure that would work harm. Section 21 of the census act provides : "That any supervisor, supervisor's clerk, enu- merator, interpreter, special agent or other em- ploye, who, having taken and subscribed the oath of office required by this Act, shall, * * * with- out the authority of the Director of the Census, communicate to any person not authorized to re- ceive the same any information gained by him in the performance of his duties, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not exceeding $500. ' ' There is, however, no limitation on the authority of the Director of the Census to divulge information. It is doubtful whether the penalty clause in the census act of 1899 can be enforced. The act imposes a penalty upon " every president, director, agent or other officer of every corporation and every establish- ment of productive industry, whether conducted as a corporate body, limited liability company, or by pri- vate individuals, from which answers to any of the schedules, inquiries or statistical interrogatories pro- vided for by this act are herein required," etc. But nowhere in the act is a duty imposed upon such per- son or corporation to answer the interrogatories. Penal statutes are to be strictly construed, and the courts will not extend the law to cover a failure to do an act which is required to be done only by implica- tion of law. In United States v. Mitchell, 58 Fed., 993, it is said : "To make the failure or refusal to perform a duty a criminal offense cognizable in this court, the act of Congress must clearly define that duty and declare the punishment. ' ' There can be no constructive offenses, and before a man can be punished his case must be plainly and un- mistakably within the statute. U. S. v. Wiltberger, 5 Wheat., 76. U. S. v. Morris, 14 Pet., 464. 538 U. S. v. Lacker, 134 U. S., 624, 628. U. S. v. Brewer, 139 U. S., 278, 288. It was upon this precise ground (that there is no duty expressly imposed on any one to answer the in- quiries) that the court in U. S. v. Mitchell, 58 Fed., 993 (1893), supra, squarely held that an officer of a cor- poration could not be prosecuted for failure to answer questions under the census act. The act in that case is almost identical in terms with the act of 1899. See, further, as holding that where no specific duty is imposed by the statute, there can be no criminal or civil liability: Maker v. Slater, etc., Co., 23 Atl., 63 (R. I.). Beklers v. Daniel, 31 Atl., 582 (B. I.). Hitchcock v. Chicago, 72 111. App., 196. Chicago v. Rumpff, 45 111., 90. Commonwealth v. Watson, 97 Mass., 562. Thomas v. People, 31 Pac., 348. 21 Ency. of Law (2nd Ed.), 99. Anderson v. State, 11 S. W., 33 (Tex.). Belk v. People, 125 111., 584. U. S. v. Knoivles, Fed. Gas., 15, 540. Reg. v. Smith, 11 Cox C. C., 210. Reg v. Pocock, 5 Cox C. C., 172. Reg v. Barrett, 2 C. & K., 343. Reg v.Gray, 4 F. & F., 1098. Wharton's Crim. Law, Sees. 130, 337-8. Wharton on Homicide, Sees. 72, 80, 98. Roscoe's Crim. Ev. (8th Ed.), p. 923. Ex Parte Grand Trunk Ry., 18 Lower Can., Jurist, 141. People v. Davis, 1 111. C. C., 217, 245. People v. Davis, 2 111. C. C. The question under consideration is one of great importance, and I submit for the consideration of the board whether an attempt should be made to test the matter in the courts. NOTE: The above opinion attracted considerable attention and the following bulletin issued by the Association under date of March 22, 1905, is self-explanatory: Ed. 539 CHICAGO, March 22, 1905. To Members: On February 4th, 1905, our general counsel, Mr. Mayer, in answer to a question submitted to him concerning the legality of the ' ' Schedule of Questions for Manufacturers, 1905," circulated by the Permanent Census Bureau, rendered an opinion that certain of the questions pro- pounded by the Census Bureau called for such disclosures that those who were unwilling to answer them could not be legally compelled to do so. In his opinion Mr. Mayer stated that all questions that related to matters that are not private, or to matters of a general character, must be answered. He further said that: "It is a question principally of degree and circumstances as to whether a particular inquiry will involve an unnecessary disclosure of private business. The statistics, when compiled for the country, are, of course, of great value, and as the Census Bureau promises that all answers will be held absolutely confidential, there may possibly not be any disclosure that would work harm. ' ' It is not thought that any of the members of the Association have misunderstood Mr. Mayer's opinion, which was and still is adopted aa the opinion to govern this Association. It appears, however, from a communication received by the President of the Association, from Hon. S. N. D. North, Director of Census, that erroneous views have been drawn by outsiders as to the scope and purport of Mr. Mayer's opinion. The Association, to the extent that it can facilitate the work of the Census Bureau, which is most valuable and of far-reaching importance, is anxious to do so, to any extent that does not infringe upon the legal rights of its members. So that members of the Association may know the views by Mr. North on the subject, a copy of his communication is appended, and in sending the same it is a source of gratification to the Association that its position upon matters affecting manufacturers is con- sidered of such weight and importance as not only to have called forth Mr. North's letter, but also his special visit from Washington to this city. Yours very truly, JOHN M. GLENN, Secretary. Department of Commerce and Labor, Bureau of the Census, Washington. Office of The Director. MR. JOHN E. WILDER, President Illinois Manufacturers' Assn. My Dear Sir: In accordance with our conference this afternoon, I write to ask that you will bring to the attention of the Executive Com- mittee of your Association the fact that the success of the United States census of manufacturers in Illinois is likely to be somewhat impeded by the publication of the opinion of Hon. Levy Mayer, the Counsel of your organization, and the erroneous conclusions which have been drawn in some of the newspapers. I am confident that a brief resolution of your Committee, urging Illinois manufacturers to respond promptly and cheerfully to the census inquiries, will wholly overcome this adverse im- pression, which, as I stated to you, is founded on wholly erroneous grounds. In accordance with your request, I will briefly recapitulate what I said in our conversation. 1. There is not the slightest danger that the data asked for on the Census schedule will ever become public, or in any way used to the detriment of any manufacturer. I have myself been officially connected 540 with every federal census of manufacturers since 1880, and in that en- tire period there has never been a single complaint that the information containued on a schedule has been made public, or become known to competitors, or used in any way to the detriment of the manufacturer supplying the information. I am fully prepared, as Director of the Census, to make good the guarantee, which appears on every schedule, as to the confidential treatment of the data. As the schedule is con- structed, it is impossible to determine from it the profit or loss of the year 's business. But even if this were not so, the statistics are so com- piled, for publication, that the operations of no individual establishment can be known. 2. The Census Office wants only aggregates, to show the growth of industries and localities. The manufacturing census has been made a five-year census, instead of a ten-year census, as formerly, on the demand of the manufacturers themselves, who insisted, when the permanent census was created, that our manufacturing development was ad- vancing so fast that it ought to be measured more frequently than once in ten years. The agricultural interests of the country are now de- manding a five-year census also, and they will eventually get it. If it is such a good and necessary thing I cannot understand why the manu- facturers of a single state like Illinois should object to it, when every- body else favors it. The great manufacturing associations of the coun- try, with the single exception of the Illinois Association, are heartily co-operating with the Census Office in this Census and giving us every assistance. 3. Illinois, more than any other state, is vitally interested in this particular census. For two decades it has held the third rank as a manufacturing state, being surpassed only by New York and Pennsyl- vania. Prior to 3890 it was fourth in rank, Massachusetts being third, and Massachusetts still presses it very closely. If the movement started by your Association -shall gain any headway, Illinois will fall back again to the fourth rank, and Massachusetts will again stand third in the procession. 4. I want to fully explain this last remark to avoid any possible misunderstanding. We have in the Census Office a complete manu- facturing schedule for every manufacturing establishment which existed in Illinois in 1900, when the last census was taken. It is the same sched- ule, by the w ay, in all practical essentials, as that of 1905 ; and why man- facturers should have filled it out them, with no subsequent detriment to themselves, and yet should be afraid of it now, is a mystery I cannot solve.) If any Illinois establishments now decline to make a report, the only course open to the Census Office will be to reproduce their reports for 1900 to bring them forward on the assumption that they are doing a business to-day equal to the business of five years ago. We shall thus have a return from every manufacturing establishment which existed in 1900; but in the case of every refusal we shall lack any record of the increase of business in the interval. We shall not lack that record in any other State in the Union, for nowhere, save in Illinois, has there appeared objection to the work the Census Office is doing. The only visible effect of such refusals, therefore, will be to make an official record to the effect that Illinois is retrograding as a manufacturing state; that she is not keeping pace with her neighbors; and, as I have before intimated, that she has fallen from the third rank to the fourth among the manufacturing States of the Union. It will not require many refusals from large establishments to effect precisely this result in the official figures. The growth in our manufacturing industry, 541 since the last census was taken, has been enormous; few of us compre- hend or understand it. The Census Office has recently completed, in co-operation with the State of Michigan, a census of the manufactures of that state, which is to be a part of the Manufacturing Census of 1905. It shows an increase in the value of the products of manu- facturing industry in Michigan since 1900 of something more than 40 per cent. There is reason to believe that a result equally extraordi- nary and gratifying will be shown throughout the states of the Middle West. Everywhere the public interest is aroused in the hope that the Michigan record can be matched everywhere but in Illinois. I be- lieve it will be fully matched here if your powerful organization puts itself behind the Census Office in the effort of the latter to get at the full facts. On the other hand, I can readily see that if you take no steps to counteract the impression produced by the wide dissemination of Mr. Mayer 's opinion, the returns, when finally compiled, will create the permanent impression that Illinois is falling behind in the great race of industrial progress. 5. I am not unmindful of the main contention of Mr. Mayer 's brief that there is room to doubt the constitutional right of the federal- government to demand from individual manufacturers such definite data concerning their private business affairs as the Census schedule calls for. I note carefully his suggestion that this question has never been ju- dicially determined, and that some Illinois manufacturers might prop- erly raise it in this connection. To this proposition I make the follow- ing answer: The law requires that the manufacturing census shall be taken in 1905, and we propose to carry out the law. We cannot post- pone the census, pending the judicial determination of the question of the constitutional right of the federal government to ask these ques- tions, or any of them, and we don't propose to do so. The matter is one that can only reach the courts on the initiative of the Director of the Census, in penal proceedings against a manufacturer for refusal to comply with the law, and render full and true answers to questions the law requires him to answer. It is therefore not in the power of any individual manufacturer to estop the entire census, pending a judicial determination of this question. If any individual manufacturer refuses to make the return required by the law, we shall use his return as made to the census of 1900, and prosecute him afterwards. There is lots of time in the future to determine this more or less academic ques- tion. At present the only thing in view is to make the quickest and best census yet made of American manufactures; and the only ques- tion for Chicago and Illinois manufacturers to determine is whether they will aid or embarrass the work. 6. Mr. Mayer intimates that the census schedule is so technical and minute as to constitute an unreasonable, if not an impertiment, de- mand upon the time and patience of the manufacturer. As to that, admitting that the schedule is formidable in appearance, I wish to say that it is not as troublesome as it looks. The manager of any establish- ment which keeps its books in accordance with modern business methods, can turn the schedule over to his bookkeeper, who can fill it out in a comparatively short time. The census accepts the statement as made at the last inventory, or balancing of annual books. If the exact figures do not exist as the books of a firm or corporation are kept, the census accepts a careful estimate. It sends an agent to assist in filling out the schedule, whenever this is desired. It does everything in its power to help the manufacturer and to minimize the trouble and annoyance arising from its requests. 542 In accordance with this policy, the Census mailed blank schedules to every manufacturer months in advance of the canvass, to be filled out at leisure and returned by mail. I am gratified to be able to state that hundreds of the largest manufacturing establishments of Chicago and Illinois, representing many millions of invested capital, have taken ad- vantage of this opportunity, and have sent forward to Washington schedules filled out in every particular. They have not stopped to raise any question of constitutional right, or complained about intrusion into their private affairs. They are anxious to help and not to hinder a great government work, undertaken primarily in the interests of the manufacturer. They regard it as a patriotic duty to contribute their aid in this work; and so, I am sure, will the members of your Executive Committee and your great Association, when you come to consider all the facts. Again thanking you for the personal courtesy and consideration you have extended to me, I remain, Very respectfully, S. N. D. NORTH, Director of Census. CHICAGO, ILL., February 28, 1905. RIGHT OF A MANUFACTURER TO USE FAC-SIMILE OF EXPO- SITION AWARDS FOR ADVERTISING PURPOSES WITHOUT COMPLYING WITH THE REGULATIONS OF THE EXPOSITION COMMITTEE ON AWARDS. (Eclipse Gas Stove Co., February 6, 1905.) " Please advise us if the question has been brought before the legal department of the Asso- ciation, of the right to re-produce for advertising purposes, cuts or illustrations of the authorized emblems of the awards issued by the Louisiana Purchase Exposition. We have been awarded the gold medal and as this will not be issued for sev- eral months they are issuing what they call an official award ribbon. Of these we ordered 75 at $3 each and as there has been some delay in their delivering these to us, and we wishing a half-tone reproduction to print in our catalog, wrote them asking if they could hurry forward the ribbons and also if they would have half-tone cut made so that we could use it in our catalog. We have a reply to-day from the St. Louis official award rib- bon committee, copy of which we enclose with this letter. What we would like to know is, have we the right to reproduce this in our catalog without complying with the regulations set forth in their letter." 543 The letter of the St. Louis official award ribbon com- mittee is as follows : ''In reply to your esteemed favor of Dec. 8th, we beg to say that we have placed your desires before the officials to re-produce the half-tones of your official award ribbons and declarations. We presume you are aware that these author- ized emblems are protected by letters patent and copyright ; therefore, successful exhibitors are not allowed to reproduce them in any manner whatso- ever until they have received our written permis- sion to do so. Although it has now been arranged to allow to those who purchase 100 or more rib- bons the right to produce them for advertising purposes. We find on referring to our previous instruc- tions that you have already ordered seventy-five, therefore, it will only be necessary to send us a further order for twenty-five ribbons for you to secure the right to reproduce half-tones for illus- trating your catalog. We can, if you so desire, produce for you a copy- righted half-tone 4^x7", for $25. This we could send to you within a week, providing your catalog has already been printed, you could, if you so de- sired, make the illustration of the official award ribbon and declaration a special insert page, which would probably be more effective than if you had it arranged in your catalog." The Louisiana Purchase Exposition Company is a corporation organized under the laws of the State of Missouri. Government participation in the exposition is provided for by Act of Congress passed March 3, 1903 (Chap. 864, Session II, 56th Congress). Section 6 of that act provides : "That the allotment of space for exhibitors, classification of exhibits, plan and scope of the exposition, the appointment of all judges and examiners for the exposition, and the awarding of premiums, if any, shall all be done and performed by the said Louisiana Purchase Exposition Com- 544 pany subject, however, to the approval of the Commission created by section two of this act." Section 12 of the same act provides : "That the National Commission hereby author- ized shall cease to exist on the first day of January, 1905." By Act of Congress passed June 28, 1902 (Ch. 1301, p. 446, Sess. I, 57 Congress), Sec. 12 was amended to make the National Commission cease to exist on the first day of July, 1905. I have not before me the rules of the Exposition Company covering the issuance of awards. From the statutes above cited, it appears that the National Com- mission is still in existence, and has jurisdiction to pass on the reasonableness of rules governing awards. Unless the National Commission has already exhausted its power by a ratification of the rules, protest may be made to that body. The ribbons are covered by a design patent; the printed certificate to which they are attached is cov- ered by a copyright. Neither the design patent, nor the copyright, was issued to the Exposition Company. I am not informed whether or not there has been an assignment to the Exposition Company of the patents and copyrights in question. It is impossible to pass categorically on the question of law submitted. There is involved the power of the Exposition Company to impose extortionate and un- reasonable conditions on the use of its awards as well as the questions of restrictive control over the same under color of patent and copyright privileges. Only the owners, assignees or licensees can reproduce the emblems in kind, that is identical replicas or copies, nor may photographs be made where there is any ele- ment or unfair trade or competition. Where no original has been awarded to the exhibitor, the Imitation of the official emblems would be a fraud upon the public and injunction might properly be invoked. Here the stove company has been awarded a prize and it is not seeking to reproduce its award in kind, 545 but merelv to make photographs for its catalogues as evidence that it has received an award. It wishes to get the greatest benefit out of the commercial excel- lence of its product on account of which the awards were made. It seeks no advantage over the Exposition Company with the respect to the exclusive right to make the emblems, and the emblems as such are not in any way in the line of the stove company's business. The stove company has made an exhibit; the excellence of its goods has been publicly recognized, and it seeks to use commercially the public recognition. The use sought to be made of the photographs is not unfair or piratical in the usual sense. In my opinion the stove company is free to photo- graph the ribbon, but whether or not it may photo- graph the certificate to which the ribbon is attached, is a question not free from doubt. The courts may hold that the conditions imposed with the awards are reasonable and that the design patent and copyright permit the Exposition Company to retain some control over the use of the awards after their issuance, although, as I have already intimated, I think this is a perversion of the patent and copyright privilege. The precise question has never been passed on by the courts. The stove company, therefore, should ap- peal to the National Commission, and in the meantime it would probably be safe in issuing the half-tones in its catalogue. The amount in controversy is small, and it is im- probable that the Exposition Company would begin suit. If the amount in controversy were sufficiently large and enough members of the association were interested to make it an association matter, I would suggest that the rule of the Exposition Award Com- mittee should be boldly repudiated and a legal attack be courted, so that what seems to me to be a petty and unreasonable regulation could be tested in the courts. 546 WHETHER IT IS LEGAL ON THE PART OF AN EMPLOYER OR NUMBER OF EMPLOYERS TO AGREE NOT TO EMPLOY UNION MEN. (Illinois Manufacturers' Association, February 18, 1905.) " A number of firms, engaged in the same line of trade, associated themselves for the purpose of opposing unionism. They practically succeeded in eliminating the unions from their plants. Will you kindly answer the following questions for them: Is it unlawful on the part of an employer to refuse to employ a man because he is a union man ! Is it unlawful for a number of employers or firms to agree among themselves that they will not employ any union man ? ' ' The matter is covered by my opinion of May 13, 1903, in answer to the query of W. D. Allen. There is no obligation on the part of an employer to hire any particular person, and an employer may, therefore, refuse to hire such person for any reason whatever, no matter how unreasonable, whimsical or capricious that reason may be. For the same reason an employer may arbitrarily refuse to hire any par- ticular class of persons, without reference to their qualifications or capacities. I, therefore, answer the first question in the negative. A different question is presented when a number of employers agree among themselves that they will not employ a particular class of persons, viz., union men, unless such action is necessary to the maintenance or preservation of the employers' legal rights. The right to hire such persons as they may see fit is a legal right of the employer, but it is an individual right and not a collective right. The combination possesses hurtful powers which the individual has not, and the effect of such a combination is to proscribe and discriminate against union labor. Although there are intimations to the contrary in some of the decided cases elsewhere, I am of the opin- ion that in this State such an agreement will be held 547 illegal and in violation of the criminal laws of the State. See the authorities cited in my prior opinion of May 13, 1903. Since the giving of that opinion, the Appellate Court of this district, in Christenson v. The People, ex rel. (Judge Adams speaking for the court), held that a closed shop agreement constitutes a conspiracy and discriminates against non-union labor. This is the converse of the question submitted. NOTE: The decision in Christenson v. People was affirmed by the Supreme Court of Illinois in O'Brien v. People, 216 111., 354. Ed. AS TO THE FOREIGN CORPORATION OF INDIAN TERRITORY AND AS TO COMPLIANCE THEREWITH. (Rubber Paint Company, March 17, 1905.) 1 i We will appreciate it if you will mail us, say, six or eight different opinions furnished by Attor- ney Levy Mayer to members of our association in the past explaining what constitutes doing busi- ness in other States and Territories, and what con- stitutes interstate commerce. We had occasion to bring suit recently in the Indian Territory for a bill of merchandise shipped from Chicago and made payable here. The merchandise was origi- nally sold by one of our traveling men in the Indian Territory, but the order was subject to our approval here in Chicago. The attorney in the Indian Territory representing us held that the transaction was strictly interstate commerce, but the federal commissioner, before whom suit was brought, is of the opinion that no foreign corpora- tion can maintain a suit in the Indian Territory without complying with the foreign corporation legislation now in force there. He takes the stand that the Indian Territory is governed directly by Congress and that decisions covering points of this kind arising between the different States will not apply. Hoping that you may be able to furnish us with an opinion or some authorities covering this par- ticular case, we are." 548 The exact question has not been passed upon by the courts. The commerce clause of the constitution is not applicable to the territories, as they are entirely sub- ject to the legislative power of Congress. They are not organized under the constitution, but are the crea- tion exclusively of the legislative department and sub- ject to its supervision and control. Endelman v. United States (C. C. A., 9th Cir.), 86 Fed., 456. Prentice & Egan on the Commerce Clause, p. 305. The question must be determined irrespective of the commerce clause and the decisions thereunder, and by reference to the laws of the Indian Territory alone. By Act of Congress of May 2, 1890 (26 Stat. L. 81), what had theretofore been known as the Indian Terri- tory, with the exception of certain portions, was erected into the Territory of Oklahoma. The portions excepted were given the specific designation of "The Indian Territory" which is the territory "actually oc- cupied by the five civilized tribes, and the Indian tribes within the Quapaw Indian Agency and the unoccupied part of Cherokee outlet." Section 29 of that Act provides: "That all that part of the United States which is bounded on the north by the State of Kansas, on the east by the State of Arkansas, and Mis- souri, on the south by the State of Texas, and on the west and north by the Territory of Oklahoma, as defined in the first section of this act (in sub- stance, supra) shall for the purposes of this act be known as the Indian Territory." In an opinion of the Secretary of the Treasury (22 Op. Atty. Gen., 235) the Attorney General said: "What is known and described in the statutes and generally as the 'Indian Territory' was organ- ized and described by metes and bounds by the act of May 2, 1890 (26 Stat., 81, 93, Sec. 29), and the territory within those bounds is just as much a separate, distinct, integral part of the United States as is the State of Kansas or Territory of 549 Arizona, and, while within the general description of Indian country as defined by Section 1 of the act of 1834, is yet governed for the most part by laws applicable to that Territory alone. Nor does its existence or status of the 'Indian Territory' depend upon the continuance of the Indian title to the land or upon the fact that any Indians remain there. On the contrary, although the Indian title had become extinct as to every foot of land in the Territory, and although there is no longer an In- dian there, still the laws applicable to that Terri- tory would continue in force as before until re- pealed or changed, except, of course, those relating to the Indians. While the general Indian country ceases to be such upon the extinction of the Indian title, this Territory, as organized and defined by metes and bounds and named the 'Indian Terri- tory,' does not at all cease to be such upon any contingency, and laws applicable to that Terri- tory continue to govern it, no matter who owns the soil, excepting, as before, laws relating peculiarly to Indians." By Sec. 1 of the Act of February 18, 1901, Ch. 379 (31 Stat. L. 794) Congress provided that sections 504, 509 and 960, 1035, of the laws of Arkansas, 1884, shall be put in force in the Indian Territory, so far as they may be applicable. The Arkansas sections referred to supply a body of statutes applicable to domestic corporations. Sec. 2 of the above Act of February 18, 1901, provides inter alia that wherever the words "Secretary of State" occur in the Arkansas section, there shall be substituted therefor the words "Clerk of the United States Court of Appeals for the Indian Territory." Section 3 provides that foreign corporations may be authorized "to do business" in the Indian Territory, but subject to the same regulations and with no greater powers than domestic corporations. Section 4 provides that : "Before any foreign corporation shall begin to 550 carry on business in the Indian Territory, it shall designate an agent, file a certificate, etc." Section 5 provides that on failure of a foreign cor- poration to comply with the requirements of the fore- going sections, "All its contracts with citizens and residents of the Indian Territory shall be void as to the cor- poration, and no United States Court in the Indian Territory shall enforce the same in favor of the corporation." As I have stated, the commerce clause of the con- stitution and the decisions thereunder have no appli- cation. The questions now presented are, however, closely allied to those arising under the commerce clause. The laws of the Indian Territory governing foreign corporations are applicable only to corpora- tions doing business therein. The words ' ' doing busi- ness" should have no other or different meaning in this connection than when used in connection with in- terstate commerce transactions. The decisions under the commerce clause are, therefore, applicable here. Every transaction of a corporation in a particular place does not constitute doing business. In general, the corporation must transact what is in fact some- thing substantial within the particular place. Isolated or incidental transactions will not bring the corpora- tion within the rule, nor would the maintenance of a suit, the purchase of supplies, or the doing of any other act merely collateral or incidental to the carrying of the business of the corporation. I have heretofore given the association many opinions upon different phases of the question. I am not informed as to the methods pursued by the corporation with reference to its business in the Indian Territory. If the corporation merely received an order for goods from the Territory by mail or through the medium of a traveling salesman, who takes orders, subject to the approval of the home office, and the goods are shipped from this State, I am of the opinion that the corporation need .not comply with the laws of the Territory. 551 WHETHER IT IS COMPULSORY FOR CARRIERS TO FURNISH CARS AND ALLOWABLE TO EXACT PER DIEM CHARGES FOR SUCH CARS. (Barrett Manufacturing Company, March 17, 1905.) "Will you please submit to our counsel, Mr. Levy Mayer, for his opinion, the question as to whether or not it is compulsory for the carriers to furnish cars to transport shipments between points within their terminals, whether handling over one or more lines; if handling over more than one line, which line should be asked to fur- nish the equipment, the line on which the shipment originates or the line delivering the shipment ; and if it is legal for them to assess in addition to the charge for the services performed a rental charge for the equipment ? The case we have before us is that our factory at Kansas City, which is located on the Missouri Pacific tracks. In switching ship- ments to points located on the C. & A. the equip- ment is furnished by the Missouri Pacific and the charge of $3.00 assessed by the company for the service, $3.00 for rental of the car and $3.00 for the service performed by the C. & A." In Eevised Statutes of Missouri, 1899, Sec. 1082, it is provided : "Every such railroad corporation is hereby re- quired to receive all freight or live stock which may be offered for transportation at the place of starting, at the junction of other roads, and at usual stopping places, and shall take, transport and deliver the same, without unnecessary delay, according to contract." Section 1090 provides for a penalty of not less than $100 nor more than $500 against any railroad com- pany failing to obey the provisions of the act, and Sec. 1120 gives the shipper the right to furnish cars himself if the railroad fails to furnish them and requires the railroad to transport these cars. Under these provisions it is compulsory for the car- 552 rier to whom freight is offered for transportation to furnish cars to transport the same. At common law a carrier is not required to transport goods beyond its own line, nor is a connecting carrier compelled to give the use of its tracks to cars of other lines. In my opin- ion of this date, in response to an inquiry from the Manierre-Yoe Syrup Company, I discussed the rela- tions and liabilities of the connecting carriers with reference to interstate commerce. However, this ship- ment I assume is entirely local and is, therefore, gov- erned by the laws of Missouri. The Statutes of Missouri (1899, Rev. Stat., Sec. 1122) provide: ''Any railroad corporation, or association, or- ganized for the purpose, shall have the right to construct and operate a railroad between any points within this State, and to connect at the State line with railroads of other States; and shall have the right, with its roads, to intersect, con- nect with or cross any other railroad, and shall receive and transport each other's passengers, tonnage and cars, loaded or empty, without delay or discrimination." The original or initial carrier, under this act, would, in my opinion, be liable to furnish the cars for ship- ment even if it be necessary to handle the same over other lines. If, however, the delivering carrier has trackage agreements and rights permitting it so to do, it may properly be asked to supply the equipment and undertake the transportation. But in any event, the originating carrier is primarily liable to supply cars. In my opinion of January 5, 1905, in response to an inquiry from W. 0. King & Co., I discussed fully the legality of per diem charges for the rental of cars in switching traffic, where such charges are in addition to the charges for freight and switching. I have not before me sufficient facts to express an opinion as to the reasonableness of a $3 rental charge in Kansas City. The laws of Missouri require tariffs to be pub- lished by the railroads and provide complaints to be 553 made to the Kailroad Commission, if such rates are unreasonable, unjust or extortionate. NOTE: See opinion of April 20, 1907 (Hines Lumber Co.) as to the right of a carrier to assess per diem charges against a shipper in addition to a switching charge. Ed. WHETHER A RAILROAD COMPANY IS OBLIGED TO FURNISH FIFTY-FOOT CARS IF DEMANDED BY THE SHIPPER. (E. M. Miller & Co., March 17, 1905.) "We have been having some little difficulty in securing fifty-foot furniture cars for loading to Southern California points. The Southern Pacific and the Santa Fe, being the only roads into that territory, have made what is termed a gentle- man's agreement, so that neither road will take a shipment in a fifty-foot car, unless the other one is agreeable to the first one's accepting the busi- ness. Either one of the roads is in position to handle fifty-foot equipment to the coast, and it looks to us as though this arrangement of theirs was a breach in Interstate Commerce laws. We should be glad to have your opinion on this subject." It is the duty of the carrier to equip its road with the means of transportation, and to furnish adequate and suitable car equipment for all the business it undertakes, impartially to all shippers of like traffic. Truck Farmers' Assn. v. R. R., 6 I. C. Rep., 295. Refiners' Assn. v. R. R., 5 I. C. C. Rep., 415. Hutchinson, Carriers (2d ed.), Sec. 291a, 293. 6 Cyc. Law, 372. The Interstate Commerce Act provides (Sec. 3, cl. 1) : "It shall be unlawful for any common carrier subject to the provisions of this act, to make or give any undue or unreasonable preference or ad- vantage to any particular person, company, firm, 554 corporation, or locality, or any particular descrip- tion of traffic, in any respect whatsoever, or to subject any particular person, company, firm, cor- poration, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." Under the provisions of this section, the carrier can not lawful ly, without adequate reasons, refuse to fur- nish fifty-foot furniture cars to one shipper and sup- ply them to another, if such act subjects one shipper to undute or unreasonable prejudice or disadvantage. A common carrier can not unjustly discriminate. It must treat alike all its patrons who are similarly situated. It is the duty of the carrier to furnish cars suitable for the purpose required. Upon the West- ern Classification, Rule 6 B, applicable to furniture in carload lots, the maximum size of car provided for is one of fifty-feet six inches long. If furni- ture cars of less than fifty-feet length are suitable for the purpose, then the largest size is merely a facility and advantage in loading. The railroad company is under no obligation to furnish a fifty- foot car, if a suitable car is tendered, provided that no undue or unreasonable advantage is given to one shipper over another. The duty to furnish the cars without discrimination may be enforced by mandamus. Covington Stock Yards Co. v. Keith, 139 U. S., 128. If there is discrimination along the line covered by the question under consideration, the matter is a proper subject for investigation by the Interstate Com- merce Commission, upon appropriate complaint being made to it by Miller & Co. NOTE: See later supplementary opinion of June 29, 1905, for E. M. Miller & Co. upon this same question, and also the opinion of Nov. 7, 1906 (John E. Burns Lumber Co.) as to whether a consignor can control the routing of his shipments when the carrier refuses to accept shipments unless it has the right to route same as it desires. Ed. 555 THE TRADEMARK LAW ENACTED FEBRUARY 20, 1905, BY CONGRESS, AND THE NECESSITY FOR REGISTRATION UNDER THE SAME. (Kubber Paint Company, March 17, 1905.) "We have been recently receiving a flood of letters from attorneys in reference to the new trademark law, in which they seem to agree that we should make a re-registration of all of our trademarks. This would be quite an expense to nearly every manufacturer and it seems to us under the general trademark law to be useless. We would like to have you submit this matter to our attorney for an opinion, and oblige," etc. On June 20, 1904, I gave an opinion to the associa- tion in which I stated : "The right to a trademark is a common law right and is not dependent for its validity upon any statute. Statutes have been enacted by Con- gress and different States in aid of the common law rights and providing for the registration of trademarks, but compliance with such statutes is not a prerequisite to the acquisition of a valid trademark. A right to a trademark is not created by registration. Eegistration under the Act of Congress is of little practical value, except for the purpose of creating a permanent record of the date of the adoption and use of the trademark, or in a particular class of cases where it is desirable to assert one's rights in the United States courts. That class of cases has reference to foreign com- merce and commerce with the Indian tribes. Reg- istration is only prima facie evidence of owner- ship of the trademark registered, and is not con- clusive or binding upon the courts as to the right of the party to exclusive use. The mere fact that the trademark has been registered does not create the conclusive right of user." Since the rendition of that opinion, Congress has en- acted a new law in relation to the registration of trade- 556 marks (passed February 20, 1905). Section 17 of the act confers original jurisdiction on the Federal Courts of all suits respecting trademarks registered under the act. The act applies to all trademarks used in commerce with foreign nations, or with the Indian tribes, and to all trademarks used in commerce be- tween the States. The original act did not apply to the latter class of trademarks, but only to those used in commerce with foreign nations and with the Indian tribes. The present act, therefore, permits the owner of a registered trademark, used in interstate com- merce, to seek relief in the Federal tribunal. Section 16 of the law provides : ''That the registration of a trademark under the provisions of this act shall be prima facie evi- dence of ownership. Any person who shall, with- out the consent of the owner thereof, reproduce, counterfeit, copy, or colorably imitate any such trademark and affix the same to merchandise of substantially the same descriptive properties as those set forth in the registration, or to labels, signs, prints, packages, wrappers, or receptacles intended to be used upon or in connection with the sale of merchandise of substantially the same descriptive properties as those set forth in such registration, and shall use, or shall have used, such reproduction, counterfeit, copy, or colorable imitation in commerce among the several States, or with a foreign nation, or with the Indian tribes, shall be liable to an action for damages therefor at the suit of the owner thereof; and whenever in any such action a verdict is rendered for the plaintiff, the court may enter judgment therein for any sum above the amount found by the ver- dict as the actual damages, according to the cir- cumstances of the case, not exceeding three times the amount of such verdict, together with the costs." Section 19 provides: "That the several courts vested with jurisdic- tion of cases arising under the present Act shall 557 have power to grant injunctions, according to the course and principles of equity, to prevent the violation of any right of the owner of a trademark registered under this Act, on such terms as the court may deem reasonable, and upon a decree being rendered in any such case for a wrongful use of a trademark the complainant shall be en- titled to recover in addition to the profits to be ac- counted for by the defendant, the damages the complainant has sustained thereby, and the court shall assess the same or cause the same to be as- sessed under its direction. The court shall have the same power to increase such damages in its discretion as is given by section sixteen in this Act for increasing damages found by verdict in actions of law ; and in assessing profits the plain- tiff shall be required to prove defendant's sales only; defendant must prove all elements of cost which are claimed." If, therefore the owner of a trademark used in in- terstate commerce deems it of advantage to resort to the Federal tribunals or desires to recover more than the actual damages, as above provided, such trade- mark should be registered. If the proper diversity of citizenship exists, and if at least the sum of $2,000 is involved, the Federal courts would have jurisdiction without reference to the act above quoted. IN REFERENCE TO THE TELEPHONE LITIGATION WHEN THE NAME OP THE FIRM HAS BEEN CHANGED. (Strube Machine Works, March 17, 1905.) The telephone company has asked the Strube Com- pany to sign a contract for telephone service at the rate of $175 per annum, and has refused to accept payment under such contract at the rate of $125 per annum unless a bond is furnished. Herman Strube became a party to the telephone litigation on October 2, 1901, and the injunction issued by Judge Tuley was 558 made operative as to him. Although I am not so in- formed, I assume that the Strube Machine Works is the successor to Herman Strube, and that the present inquiry relates to the same telephone as that covered by the injunction in favor of Herman Strube. Although strictly speaking the Strube Company is not protected by the injunction now in force in favor of Herman Strube, I understand that the telephone company is not enforcing the excess charge of $50 against companies or corporations succeeding to the rights of those who are parties to the telephone litiga- tion. The Strube Company can therefore sign the contract under protest, and write on the contract that it signed under protest, and thereafter tender payment at the rate of $125 per annum for the telephone serv- ice. If the telephone company refuses to accept such a contract and the amount specified above, if you will so advise me I will have the proper steps taken to pro- tect the Strube Company. I suggest that the Strube Company advise the telephone company that it is ad- vised by counsel that it is protected by the injunction now in force in favor of Herman Strube. Of course, if the Strube Company is not the succes- sor to Herman Strube, these remarks will not apply. IN REFERENCE TO THE LIABILITY FOR SWITCHING CHARGES AND FOR PER DIEM CHARGES IN ADDITION THERETO. (The Marsh & Bingham Company, March 17, 1905.) "As subscribers of your association, we would like your legal opinion on the following switching question, if we are entitled to same as members. We shipped from our yard, Thirty-seventh and Iron streets, Chicago, located on the Chicago Junction Eailroad, two cars of timbers to a point on the Belt Eailway. We paid the Belt their switching charges as per their bills. Our dealings were with the Belt Railway and we did not know the Chicago Junction in the matter, further than the material originated on their line, and we are 559 located on same. The Chicago Junction now pre- sent us with a bill for $1.40 per car per diem re- claim. We did not retain these cars over the pre- scribed time in loading. The Chicago Junction do in their published tariff, which we have marked, provide for an ad- dition at $1.40 charge, but in this case should not this charge be taken care of by the Belt Railway? Can a third party come in and collect charges after you have settled with the delivering road and is this per diem reclaim legal under the Inter- state and Elkins laws, as said per diem is not for any detention or demurrage? An answer on this question will be of great serv- ice to ourselves, as well as other members of your company which may be located on the Chicago Junction Railroad or have similar cases." The matter is covered, as far as I can ascertain from the facts, now presented, by my opinion of No- vember 14, 1904, and January 5, 1905, in answer to the query of W. 0. King & Co., to which I refer. As I understand the facts, the company made its arrangements with the Belt Company. That company furnished the cars and transported them to their desti- nation. The Junction Company was not known in the transaction at all, and the M. & B. Company had no dealings whatever with that company, nor any notice that the Junction Company was at all concerned there- with. The M. & B. Company settled with the Belt Railway for the entire services without any reserva- tion of any claim on the part of the Junction Com- pany. If these assumptions are correct, I am of the opin- ion from the facts before me, that the Junction Com- pany has no claim against the M. & B. Company, but must look for its charges to the Belt Railway. NOTE: See opinion of April 20, 1907, (Hines Lumber Co.) as to the right of a carrier to collect per diem charges in addition to a switching charge. Ed. 560 WHETHER A RAILROAD COMPANY IS COMPELLED TO RECEIVE CARS FROM A CONNECTING LINE WHEN CONSIGNED TO PARTIES LOCATED ALONG THE TRACKS OF THE FORMER, AND AS TO THE EFFECT OF AN EMBARGO AGAINST THE RE- CEIPT OF FREIGHT FROM CONNECTING LINES. (Manierre-Yoe Syrup Company, March 17, 1905.) "We should be pleased to receive an opinion from the attorney as to whether or not a railroad has the right to place an embargo upon cars of- fered by a connecting line consigned to parties located on the tracks of such railroad. In other words, does not the law compel a railroad to re- ceive cars from another road when consigned to parties located on the tracks of such road?" In my opinion of May 19, 1904, in response to an inquiry from the Mathis Bros. Company, I discussed the nature and effect of an embargo, with reference to a claim for damages against the carrier. An embargo is a declaration by a carrier that a condition of congested traffic exists that will justify .it in refusing to receive freight consigned from certain points to certain other points. It is lawful for a car- rier to give reasonable preference to certain goods over other goods, and exempt them from the operation of the embargo, as, for instance, in the case of perish- able freight. I have not before me sufficient facts to understand the nature of the embargo laid by the carriers, nor do I know whether the embargo is laid against the cars of a particular carrier or against the traffic of all roads in general. It is the duty of the carrier to keep open its tracks so that freight transportation and passenger travel will not be obstructed. If conditions of traffic so re- quire, it is proper, however, for the carrier to lay an embargo against cars from connecting lines. As was said in Daish v. R. R. Co., 9 I. C. C. Eep., 520 (in- volving an embargo laid by the Baltimore & Ohio R. E. in 1902) : 561 "It is also proper that embargo notices should be given such connecting lines so as to avoid the further congestion of freight in junction freight yards ; and in the forwarding of freight from con- necting lines it was proper that cars should be forwarded as far as practicable in the order of their receipt, so that there should be no unrea- sonable discrimination or preference which might be avoided." If, however, there is discrimination against a cer- tain connecting carrier, and cars offered by it are not accepted for continuous transportation, there may be a violation of the Interstate Commerce Act. It must appear also that no unjust discrimination or undue preference has been exercised against the particular person to whom the consignments have been directed. Section 3 of the Interstate Commerce Act provides : "Every common carrier subject to the provi- sions of this act shall, according to their respec- tive powers, afford all reasonable, proper and equal facilities for the interchange of traffic be- tween their respective lines, and for the receiving, forwarding and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connect- ing lines; but this shall not be construed as re- quiring any such common carrier to give the use of its tracks or terminal facilities to another en- gaged in like business." Section 7 of the Interstate Commerce Act provides : "That it shall be unlawful for any common car- rier subject to the provisions of this act, to enter into any combination, contract or agreement, ex- pressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means of devices, the carriage of freights from be- ing continuous from the place of shipment to the place of destination; and no break of bulk, stop- page, or interruption made by such common car- rier shall prevent the carriage of freights from 562 being and being treated as one continuous car- riage from the place of shipment to the place of destination, unless such break, stoppage or inter- ruption was made in good faith for some neces- sary purposes, and without any intent to avoid or unnecessarily interrupt such continuous car- riage or to evade any of the provisions of this act." At common law a carrier is free to enter into ar- rangements for the use of its tracks or terminal facili- ties with one or more connecting Ihies to the exclusion of others, and in making such arrangements it does not subject itself to the charge of giving undue preferences or advantages. Oregon Short Line v. North Pac. R. Co., 51 Fed., 465. A. T. & 8. F. R. Co. v. V. D. N. & 0. R. Co., 110 U. S., 667 (1883). The Interstate Commerce Commission has ruled that while a carrier is not obliged to make a contract for joint tariffs with a connecting line, yet under the sec- tions above quoted, if the carrier chose to contract with one connecting carrier it will not be justified in refusing to another carrier equal facilities and condi- tions. But the courts, in the majority of the cases, have declined to enforce the orders of the commission in this regard. There is considerable conflict of authority in the Federal courts as to whether a carrier under these provisions of the Interstate Commerce Act can grant facilities to some connecting carriers and deny them to others. The United States Supreme Court has never directly passed upon the provisions of section 3 of the Interstate Commerce Act to the effect that a carrier shall not be required to give the use of its tracks or terminal facilities to another connecting carrier en- gaged in like business. However, in the following cases relief has been granted to a connecting carrier against a refusal of facilities granted to other car- riers : 563 Cutting v. Ey. Co., 30 Fed., 663 (1887). N. Y. & N. R. Co. v. N. Y. & N. E. R. Co., 50 Fed., 867 (1892). Packet Co. v. Mobile R. Co., 60 Fed., 545 (1893). August R. Co. v. W rights vitte R. R., 74 Fed., 522 (1894). In the Augusta R. R. case, supra, it was held that the resisting carrier could be compelled by mandamus to forward the freight of competing carriers on like terms and furnish like facilities as were furnished rival competitors. And in the Packet Company case, supra, an action of damages for discrimination against the resisting carrier was maintained by the connecting carrier. However, the great weight of authority is to the ef- fect that a carrier may grant certain facilities to one connecting carrier and refuse the same to another, without subjecting itself to a charge of discrimination. This conclusion is based on the provision of Sec. 3 of the Interstate Commerce Act, that "this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to an- other carrier engaged in like business," which is a qualification and limitation on the preceding require- ments as to affording equal facilities without dis- crimination. To this effect, see: Kentucky & I. Bridge Co. v. L. & N. R. Co., 31 Fed., 567, 627 (1889). Little Rock R. Co. v. St. Louis, etc., R. Co., 41 Fed., 559 (1890). Little Rock R. Co. v. E. Tenn. R. Co., 47 Fed., 771 (1891). Little Rock R. Co. v. St. Louis, 'etc., R. Co., 59 Fed., 400. Little Rock R. Co. v. St. Louis, etc., R. Co., 63 Fed., 775, 11 C. C. A., 417. Cowan v. Bond, 39 Fed., 54 (1889). Oregon Short Line v. North Pac. R. Co., 51 Fed., 465, affirmed in 61 Fed., 158, 9 C. C. A., 409 (1894). 564 St. Louis Drayage Co. v. L. & N. R. Co., 65 Fed., 39 (1894). Prescott & A. R. Co. v. A. T. & S. F. R. Co., 73 Fed., 438 (1896). Gulf R. R. v. Miami S. S. Co., 86 F., 407, 30 C. C. A., 142(1898). In Stockyards Company v. L. & L. R. R., 118 Fed., 113, 55 C. C. A., 63, it is said that certain facilities cannot be denied to some and afforded to others, but that this is far from saying that it was the purpose of the law to dictate to common carriers the means by which it shall discharge its obligations to shippers. The reason of the rule is well expressed in Ken- tucky & I. Bridge Company v. L. & N. R. Co., 31 Fed., 570, by Judge Jackson, where it is held that : 1 ' The provision in Sec. 3 of the Act to the effect that a common carrier shall not be required to give the use of its tracks and terminal facilities to another carrier engaged in like business, is a limitation upon, or qualification of, the duty of affording all reasonable, proper and equal facili- ties for the interchange, or for the receiving, for- warding and delivering of traffic to, from and be- tween connecting lines; and therefore it is left open to any common carrier to contract, or enter into arrangements for the use of its tracks and terminal facilities with one or more connecting lines, without subjecting itself to the charge of giving an undue or unreasonable preference or advantage to such lines, or of discriminating against other carriers who are not parties to, or included in such arrangements. No common car- rier can therefore justly complain of another that it is not allowed the use of that other's tracks and terminal facilities upon the same or like terms and conditions, which, under private contract or agree- ment, are conceded to other lines. ' ' On the other hand, if the public is seriously incon- venienced by a denial of equal facilities, I am of the opinion, on the authority of the doctrine stated by the United States Supreme Court in the Express Cases, 565 117 U. S., 128, that a different question would be pre- sented and relief might be granted. But if the em- bargo is to relieve congestion of traffic, or is even a denial of the facility of a thorough shipment in bulk, and without change of cars, to one connecting carrier, I am of the opinion that it is legal and the shipper has no recourse. If, however, the embargo is illegally maintained, and undue preference is given to a par- ticular class of traffic, not justified by the nature of such traffic, a different question would be presented. NOTE: See the opinion of April 20, 1907 (Wilson's Interest) as to forcing the interchange of business by connecting carriers, and the cases therein cited. Ed. SPECIAL PRINTED CONTRACTS WITH CARRIERS RELEASING CARRIER FROM LIABILITY, AND THE ADVISABILITY OF SIGNING SAME. (Williams, White & Co., March 17, 1905.) Williams, White & Co. ask an opinion upon a pro- posed contract between that company and the C., B. & Q. R. Co. The contract is as follows : * ' CHICAGO, BURLINGTON & QUINCY BAIL WAY Co. Special Contract. Moline, 111., Jan. 1, 1905. Whereas, Williams, White & Co., desirous of both shipping and receiving property and freight, both perishable and otherwise, from time to time, over the lines of the Chicago, Burlington & Quincy Railway Company, and wishes to avoid the incon- venience of making a special contract for each separate shipment ; and whereas, the said Chicago, Burlington & Quincy Railway Company is willing to receive for shipment such property upon the conditions herein named : Now the parties hereto agree, in consideration of said railway company receiving and transport- ing such property without payment of freight in advance, that each and every shipment of such property to or by said Williams, White & Co., 566 over the lines of the Chicago, Burlington & Quincy Railway Company shall be deemed to be shipped under the terms and conditions herein expressed, in addition to the terms and conditions contained in the bill of lading or receipt for the said prop- erty; that is to say, that said railway Company shall not be liable for any damage to, or loss of weight or quantity of said property, however the same may occur, except as such as may result from negligence of the railway company, and, further, that if the freight and charges upon any of said shipments are not paid upon arrival of the same at the point of destination, or within twenty-four hours thereafter, or in the event that any of the property so shipped shall be taken upon legal process from the possession of the rail- way company without payment of said freight and charges the said Williams, White & Co. will pay the same upon presentation of a bill therefor. This contract shall also extend and apply to all freight which is specified at released rates in the classifications governing shipments between the points concerned, shipped by or to party of the second part up to December 31, 1905, and such released rates are a further consideration for this contract. CHICAGO, BURLINGTON & QUINCY RAIL- WAY COMPANY, By H. S. FRISTOE, Agent." The matter is covered by my opinion of February 2, 1905, in answer to the query of M. A. Fountain & Co. The carrier is attempting to limit its common law liability by obtaining the signature of the shipper to the above contract. The shipper has everything to lose and nothing to gain by signing such a contract, as the consideration is for the benefit of the carrier alone. I, therefore, advise that the shipper refuse to sign the same. Whether the contract is binding upon the shipper, if signed, is covered by my opinion of February 13, 567 1904, and the various opinions subsequent thereto. If the shipper is not given "real freedom of choice," and if the requisites referred to in my opinion are not present, the contract is not binding. The contract does recite that the agreement is made in considera- tion of the railway company ' ' receiving such property without payment of freight in advance." Although this makes the contract slightly stronger than the con- tract referred to in my prior opinion, I am of the opin- ion that it will not be sufficient to exempt the carrier from liability in this State. But to be on the safe side, I advise that the contract be not signed. WHETHER A CARRIER CAN LIMIT ITS COMMON LAW LIABILITY BY OBTAINING SIGNATURE OF THE SHIPPER TO A SPECIAL CONTRACT RELEASING WAREHOUSE LIABILITY OF A CAR- RIER, UNDER THE LAW OF ILLINOIS. (S. Oppenheimer & Co., March 17, 1905.) "We enclose herewith notice received from the Chicago Great Western Railway. We see no reason why we should sign an agreement of this kind. Do you?" The notice and form of agreement referred to are as follows : "Herewith form of release to be signed for goods stored in our freight house for your ac- count. Will you kindly sign and return to me, and oblige. In consideration of the Chicago Great West- ern Railway Company storing at any time for the undersigned any personal property on its prem- ises or in its depots, warehouses, freight houses or cars, the undersigned does hereby release and discharge said railway company from, and agrees to indemnify it against any and all claims for dam- ages arising from or growing out of any loss, dam- age or injury to said property by fire, while said property is on said premises or in said depots. 568 warehouses, freight houses or cars, whether caused by the negligent act of said railway company or its employes or otherwise, and from all claims for damages arising from or growing out of any loss or damage to said property by lightning, rain- storm, or other cause except the negligent or wil- full acts of the railway company while said prop- erty is on said premises or in said depots, ware- houses, freight houses or cars. ' ' In my opinion of December 30, 1902, in answer to the query of the Roos Manufacturing Company, I dis- cussed the liability of a carrier as warehouseman, with reference to its right to charge storage on freight. A warehouseman is bound to exercise reasonable care, but he is not an insurer. He is liable only for losses which may be guarded against by the exercise on his part of ordinary care and diligence. R. R. v. Montgomery, 39 111., 336. However, the duties of a common carrier do not terminate, and those of a warehouseman begin, until the goods are safely stored in a suitable warehouse. C. & A. R. R. v. Scott, 42 111., 132. Gregg v. /. C. R. R., 147 111., 550. The law does not require the warehouseman to con- struct his building and freight houses secure from all possible contingencies ; if they are reasonably and ordi- narily safe against ordinary and common occurrences, it is sufficient. As in all bailments, the nature and value of the property affect the question of ordinary care. Lawson on Bailments, Sec. 47. By this agreement the Chicago Great Western Kail- way Company seeks to relieve itself from all liability for losses on goods stored, caused by fire, whether due to its failure to use ordinary care or not. In other words, the shipper signing such an agreement relinquishes any claim for losses caused by fire. He is thus forced to cover the additional risk by insur- ance. The only consideration offered by the railway company for such a release is the storing of goods which are in its depots, warehouses, etc., not specific- 569 ally stating that no charge will be made for such stor- age. The agreement attempts also to release other claims for liability which might be occasioned by its undertaking as warehouseman. The contract offered is a vicious one, and I advise that no member of the association sign such an agreement. It is for the bene- fit of the railway company alone, and the shipper receives no corresponding advantage for releasing the railway company from liability. It is also doubtful whether the contract is binding, inasmuch as there is no consideration moving to the shipper. THE RIGHT OF THE OWNER TO CHANGE SHIPPING INSTRUC- TIONS ON GOODS IN TRANSIT. (St. Charles Condensing Company, March 17, 1905.) "As members of your association, we desire from your experience or such information as you can gather (if without expense to us) an opinion on the following export shipping question : Brown, Smith & Co. recently made shipment of car of goods for Hongkong, China, procuring through documents from one of the Chicago rail- way agents in the usual manner. Shipping direc- tions on these documents reading as follows : To the order of Brown, Smith & Co., Hong- kong, Notify John Dow, Hongkong. Goods to be carried from port of Seattle to Hongkong via steamer Washington, all freights prepaid by Brown, Smith & Co. The draft vs. documents covering shipment reaching Hongkong in advance of arrival of steamer carrying goods in Shanghai, John Dow promptly takes up the draft and notifies steamer people to unload the goods in Shanghai, which was done entirely without the knowledge or con- sent of Brown, Smith & Co., thereby creating great annoyance and damage, as under no circumstances or at any price would Brown, Smith & Co., have 570 sold John Dow the goods for shipment direct to Shanghai. Now the question is, did not the transportation company by landing the goods in Shanghai in- stead of carrying them through to Hongkong as arranged for, violate their contract with Brown, Smith & Co., and lay themselves liable?" While the goods are in transit, the owner may at any time change the instructions to the carrier as to their destination. The consignee is presumed to be the owner of the goods in transit, and the carrier is entitled to regard him as such, unless the carrier is advised that the consignor has not parted with his title and that it is to vest in the consignee only upon the performance of certain conditions. Hutchinson, Carriers (2d Ed.), Sec. 394. 5 Am. & Eng. Ency. Law, 214. In this case there was an "order and notify" bill of lading, and the title would not pass to the con- signee until the drafts attached to the bill of lading were taken up by the consignee. The authorities upon this proposition are referred to in my opinion of June 18, 1903, to Selz, Schwab & Co. When, therefore, the draft was taken up by John Dow, the title to the goods passed to him; and as owner of the goods he had the right to change the destination of the goods. The carrier did not violate its contract by thus changing the destination, as it was bound to obey the direction of the owner. However, as between the carrier and John Dow, it could exact the amount of the freight charges for the entire distance if it chose so to do, or any expense incurred by it in changing the destina- tion. THE EFFECT OF STAMPING BY CAKRIEKS OF "OWNER'S RISK" ON SHIPPING RECEIPTS. (F. H. Earl Manufacturing Company, March 17, 1905.) That company states that several of the carriers are stamping the shipping receipts of the shippers with the notation "Owner's Bisk." I have in various opin- 571 ions called attention to the fact that a limitation of the common law liability of the carrier is not binding on the shipper in this State, unless he expressly assents thereto. The stamping of the shipping receipt, with- out the consent of the shipper, as above mentioned, is not sufficient to constitute an assent to the restriction. Of course, if the shipper signs a contract or shipping order containing restrictions, this constitutes an assent to its terms. I advise that all shippers use a shipping receipt, or bill of lading, which contains no restrictions whatever and which does not refer in any way to the company's rules or their regular bill of lading. If this is done and no special contracts are signed or entered into, the goods will be carried at common law unrestricted liability. WHETHER A SHIPPER CAN RECOVER MORE THAN AN AGREED VALUATION IN CASE OF DAMAGES TO GOODS IN TRANSIT. (L. A. Becker Company, March 21, 1905.) "We wish you would obtain for us the opinion of Mr. Levy Mayer, attorney for the association, on the following question: The railroad freight charges on a polished marble slab are very high as shipped as such. A lower rate may be obtained by entering into an agreement with the railroad that in case of dam- age in transit claim should be settled at the rate of forty cents per cubic foot. A shipper in a re- cent case was awarded damages to the extent of forty-two cents for a broken slab worth $16.00. The question in the case is this : Can the ship- per recover more than the forty-two cents!" The matter is covered by my opinion of April 27, 1903, to W. H. Bice, and of February 13, 1904, to F. T. Bentley. The various classifications provide for two different rates for the carriage of marble, one under a restricted valuation at a lower rate, and the other at common law liability. If the shipper is offered his choice be- 572 tween these two rates or has actual knowledge of the same, and then accepts the lower rate and assents to a contract limiting the liability of the carrier, he is bound thereby. In such case, therefore, the shipper, in case of loss, could only recover the agreed valua- tion. It is legal, in such a case, to fix the "valuation" and such will be binding even though the breakage was due to the negligence of the carrier. See: Ullman v. R. R. Co., 112 Wis., 186, 88 N. W., 41, citing cases. Hart v. R. R. Co., 112 U. S., 331. IN REFERENCE TO PRICE AGREEMENTS ON COMMODITIES UNDER THE ILLINOIS STATUTES. (Sandwich Manufacturing Co., March 17, 1905.) "With this we attach copy of a circular just received from the Leather Belting Manufacturers' Association of New York, same dated January 19th, 1905. How can an announcement of this kind be recon- ciled with the anti-trust and anti-price agreement laws of Illinois ? The most of these Leather Belt- ing Manufacturers have branch houses located in Chicago, and these branches should and doubtless do receive from Secretary of State annually the blank for affidavit by which they certify that they have nothing to do with any trust or combina- tion formed for the purpose of fixing prices, re- stricting product, etc. Some Illinois Manufac- turers, including ourselves, have refused for a long time to participate in any of these price agreement conferences because we could not do so legally and we certainly would not perjure our- selves to evade the consequences of such agree- ments and affiliations. Can the Illinois representatives of such asso- ciations as the Leather Belting Manufacturers' ignore or in any way avoid making reply under oath to the questions propounded annually by Secretary of State? If not, it would look to us 573 as though their certificates of non-participation in price agreements were false." The circular in question states : 1 1 A special meeting of this Association was held in this city yesterday. It was unanimously decided to advance the price of leather belting 15 per cent, over prices pre- vailing November 1st, 1904. This advance is to take effect immediately. I am directed by the Association to ask each member of the trade whether he will abide by this action of the Association, and will honestly en- deavor to obtain the above mentioned advance in price. ' ' The Illinois statute (Section 1, Act of June 1, 1891; Laws of 1891, p. 206) provides: ''If any corporation organized under the laws of this or any other State or country, for trans- acting or conducting any kind of business in this State, or any partnership or individual or other association of persons whosoever, shall create, enter into, become a member of or a party to any pool, trust, agreement, combination, confederation or understanding with any other corporation, partnership, individual, or any other person, or association of persons, to regulate or fix the price of any article of merchandise or commodity, or shall enter into, become a member of or a party to any pool, agreement, contract, combination or confederation to fix or limit the amount or quan- tity of any article, commodity or merchandise to be manufactured, mined, produced or sold in this State, such corporation, partnership or individual or other association of persons shall be deemed and adjudged guilty of a conspiracy to defraud, and be subject to indictment and punishment as provided in this act." The amendatory act of June 20, 1893 (Laws of 1893, p. 89) provides that the Secretary of State shall an- nually address to every corporation a letter of inquiry as to whether the said corporation 574 "has all or any part of its business or interest in or with any trust, combination or association of persons or stockholders, * and to require an answer under oath, a form of affidavit shall be enclosed * as follows." Then follows a form of affidavit in the language of the act above quoted, and stating that the company for which it is made has not violated the law, etc. If, therefore, a manufacturer of this state enters into any arrangement or agreement with any other person for any of the purposes set forth in the statute above quoted, he is subject to indictment as provided in the act, and if any such manufacturer agrees to abide by the action of the Association and to raise the price of the commodity, such agreement being made or performed within this state, would be guilty of a violation of the act. If any person falsely makes an affidavit that his corporation has not violated the law, he will be guilty of perjury. The corporation would also be subject to indictment for violation of the law, as the immunity provided for in the act is only applicable where there is a truthful disclosure. IN KEFEBENCE TO LABELING IMPORTED FOOD PBODUCTS UNDEB REGULATIONS OF THE DEPARTMENT OF AGRICUL- TURE. (Glaser, Kohn & Co., March 17, 1905.) "We are in possession of a circular No. 18, Bureau of Chemistry, issued by U. S. Department of Agriculture regarding foreign labeling and branding of foods, drugs, etc., and would like to obtain what information we can about same : How will it affect the use of fictitious foreign names and addresses on domestic goods? How will it affect the labeling of goods imported in bulk, bottled in this country and labeled with a fictitious foreign name and address? How will it affect the labeling of goods imported 575 in bulk, blended with domestic goods and labeled with foreign name and address ? Its affect on goods imported in bulk, bottled in this country and bearing the name of importer and bottler. Any other information regarding the workings of this law which you may possess." The appropriation act for the year ending June 30, 1905, made an appropriation for the following pur- pose: "To investigate the adulteration, false label- ing, or false branding of foods, drugs, beverages, condiments, and ingredients of such articles, when deemed by the Secretary of Agriculture ad- visable; and the Secretary of Agriculture, when- ever he has reason to believe that such articles are being imported from foreign countries which are dangerous to the health of the people of the United States, or which shall be falsely labeled or branded either as to their contents or as to the place of their manufacture or production, shall make a request upon the Secretary of the Treas- ury for samples from original packages of such articles for inspection and analysis, and the Sec- retary of the Treasury is hereby authorized to open such original packages and deliver speci- mens to the Secretary of Agriculture for the pur- pose mentioned, giving notice to the owner or con- signee of such articles who may be present and have the right to introduce testimony; and the Secretary of the Treasury shall refuse delivery to the consignee of any such goods which the Secre- tary of Agriculture reports to him to have been inspected and analyzed and found to be dangerous to health, or falsely labeled or branded, either as to their contents or as to the place of their manu- facture or production, or which are forbidden en- try to be sold, or are restricted in sale in the coun- tries in which they are made or from which they are exported." The circular recites: 576 "In order to facilitate the execution of this law and to avoid any unnecessary delay in the inspec- tion of products on arrival, the attention of im- porters is called to the following suggestions." Then follows a statement as to the purposes of the inspection and a statement of what foods are deemed to be adulterated, misbranded. etc. It is then recited: "Food products will also be excluded from entry into the United States if they are of a char- acter or kind forbidden entry in the country where they are manufactured or from which they are. exported. Food products will also be excluded from the United States if they are forbidden to be sold or are restricted in sale in the countries in which they are manufactured or from which they are exported. ' ' It is thus apparent that the inspection relates only to articles that are imported, and the only effect pro- duced by a report that goods are adulterated or falsely labeled would be to deny entry to such goods when imported. I am of the opinion, therefore, that if the goods when imported are not adulterated or falsely labeled, they cannot be denied entry because of the fact that they may be afterwards falsely labeled or adulterated. The circular in question does not, in my view, affect any of the queries in the communication under consideration. WHETHER MONEY THAT IS COLLECTED ON A NOTE MADE PAYABLE AT A CERTAIN BANK IS A TRUST FUND FOR THE OWNER OF THE PAPER WHEN THE BANK FAILS AFTER HAV- ING MADE THE COLLECTION ; THE RULE IN TEXAS. (Studebaker Bros. Manufacturing Company, March 21, 1905.) "We would like to have you get Mr. Levy Mayer's opinion on the following case: We held the note of a Texas customer, which note we sent out for collection through our local 577 bank, who in turn sent it to the American National, of Abiline, Tex., the bank at which the note was payable. The latter bank collected this note from our customer and sent our South Bend bank their check on the Hanover National Bank, of New York, which check in turn was forwarded by our bank to the Hanover National Bank, of New York, for collection. The check in question was protested and returned with the notation, 'We understand the American National Bank of Abi- line, Tex., is in the hands of the comptroller of the currency.' The question we would like to ask Mr. Mayer is, whether we have a preferred claim against the American National Bank, of Abiline, Tex., or will we have to come in as a general creditor of the bank and take our pro rata with the other cred- itors of the bank? Our contention is that the funds received from the collection of this note never were the funds of the American National Bank, but were trust funds, and as such should not be considered a part of the funds for distribution to the general cred- itors of the American National Bank, and did not the American National Bank set aside a portion of their funds on deposit with the Hanover Na- tional Bank, of New York, to take care of the de- posit with the Hanover National Bank, of New York, to take care of these funds, and are we not entitled to such funds as a preferred creditor 1 ' ' The question must be determined from the nature of the relationship between the forwarding bank and the collecting bank. It is almost the universal doctrine that when a draft or note is forwarded to a bank for collection and the proceeds are paid to the collecting bank, such bank is liable as a debtor, and not as a trus- tee, unless there are special facts which take the case out of the ordinary rule. 1 Morse on Banks and Banking (3rd ed.), Sec. 248. 3 Ency. of Law (2d Ed.), p. 819. 578 Com'l Nat'l Bank v. Armstrong, 148 U. S., 50. Waterloo Milling Co. v. Kuenster, 158 111., 259. Marine Bank v. Rushmore, 28 111., 463. Frinkham v. Heyworth, 31 111., 519. Akin v. Jones, 93 Tenn., 353. Billingsby v. Pollock, 69 Miss., 759. If, therefore, the collecting bank becomes insolvent, the creditor has no lien on such proceeds and is not entitled to preference in the payment of its claim. 3 Ency. (2d ed.), p. 280, and cases supra. The law is otherwise in some States. In the pres- ent case, the collecting bank is located in Texas, and if the question were to arise in a court of that State, it would be determined by the decision of the Texas courts. In Continental Nat. Bank v. Weems, 69 Tex., 489, 6 S. W., 802, where the course of dealing between two banks had been for one to discount notes for the other, to whom they were forwarded at maturity, for collec- tion and return, with an understanding that the pro- ceeds should be preserved as the property of the dis- counting bank and returned to it as such, it was held that upon the insolvency of the collecting bank having sufficient funds to cover the proceeds of the notes so collected, it is to be deemed a trustee for the discounting bank of the proceeds of the notes so col- lected and the latter is entitled to payment of the same in full, in priority to other creditors. While the conclusion in the above case would seem to be contrary to the general rule, it is based upon the facts peculiar to that case. The notes were sent for "collection and return of proceeds," which the court held to be sufficient to constitute the collecting bank a trustee. The court, however, recognizes the general rule, stating: "If the securities had been sent for collection merely, the proceeds to be credited to the New York Bank, it is clear that after their collection the relation of creditor and debtor would have 579 subsisted, and the latter would have no claim upon the funds." In Hunt v. Towns end, 26 S. W., 310 (Tex. Civ. App.), plaintiff sent a draft to a bank for collection. The bank collected it and then passed into the hands of a receiver without remitting. The bank had made similar collections for plaintiff, the proceeds of which were always remitted to him promptly and never credited to him as a deposit. It was held that the plaintiff was entitled to be paid the entire proceeds of the draft out of the bank's asset in the receiver's hands and that the bank was a trustee and not a debtor. The court said: "The course of dealing between these parties, and the acts of the bank in reference to such transactions, necessarily involved an understand- ing that the collection should be made and re- mitted without unreasonable delay. There is noth- ing from which could be implied an authority for the bank to hold the money, and treat it as a deposit. The amount of this collection was on hand, of the general funds of the bank, when the receiver took possession, and plaintiff is entitled to receive the same, instead of a pro rata with creditors. ' ' In Peters Shoe Company v. Murray, 71 S. W., 977 (Civ. App. Texas, 1903), plaintiff drew a draft on its debtor and sent it to the defendant's assignor, a banker, for collection. The drawee paid it with a check on the bank of such banker where the drawer had sufficient funds to meet it and the amount was charged to the account of such drawer, and a draft issued on another bank and mailed to the plaintiff. Before such draft reached plaintiff, the banker as- signed to the defendant, and the bank on which the draft was drawn refused to pay it. When the bank failed, money more than sufficient to pay such draft passed to the assignee. There was no evidence of the course of dealing between plaintiff and defendant's assignor, or of any instructions given by plaintiff. It was held that the relation between plaintiff and de- 580 f endant 's assignor was merely that of debtor and cred- itor, and plaintiff had no claim to the money received by defendant as assignee of a trust fund. The court said: "The facts of this case are very similar to those in the case of Hunt v. Townsend, 26 S. W., 310, decided by this court, the material differences being that the check in that case was paid in cash, and in this was paid by a check drawn by the payor on the collecting bank, and in that a course of dealing and instructions were shown, and none were shown in this. It is the well settled doctrine in this State, as well as in a large number of States in the Union, that in a case like the pres- ent, where a special agency is created, and the bank has no authority to hold and credit the pro- ceeds of the bank, but is bound by the agreement to remit them immediately to its correspondent, the relation of trustee and beneficiary is created, and the money collected, or its equivalent, can be recovered from the assignee of the insolvent bank. Bank v. Weems, 69 Tex., 489, 6 S. W., 802, 5 Am. St. Rep., 85. ******* We are of the opinion that the funds were col- lected by Briscoe on the draft as much so as though the money had been paid into his hands, but it does not follow that they were invested with the trust character. 'When the funds are col- lected, and in the collecting bank, whether or not those funds become a general deposit in the bank, it depends upon the course of dealing between the parties, if there has been one, or, if there has been no course of dealing, and no express contract, ex- cept to collect, has been made, the funds after collection belong to the bank, and the relation of debtor and creditor exists between the bank and its depositor.' Zane, Banks and Banking, Sec. 133. The text is well supported by authority, Bank v. Weems, 69 Tex., 489, 6 S. W., 802, 5 Am. St. Rep., 85; Bank v. Armstrong, 148 U. S., 50, 581 13 Sup. Ct., 533, 37 L. ED., 363; Bank v. Hubbel, 117 N. Y., 384, 22 N. E., 1031, 7 L. E. A., 852, 15 Am. St. Bep., 515. In this case it does not ap- pear that any proof was made of the course of dealing between appellant and Briscoe, nor was it shown what instructions were given by appellant to Briscoe. The transaction is one merely of sending a draft to a bank for collection without and former course of dealing or special instruc- tions to take it out of the general rule, which would raise the relation of debtor and creditor be- tween the bank and drawer of the draft. It is a well established rule that when a bank is hope- lessly insolvent, and that fact is known by owners or officers, the acceptance of a draft for collection is such fraud as will entitle the owner of the pro- ceeds to reclaim them." The question presented in the present case must, therefore, be determined from the course of dealing between the parties and the banks, the instructions to the collecting bank and from all the facts and circum- stances in the particular case. I have not sufficient of the facts to formulate a definite conclusion. I have, however, gone sufficiently into the authorities to guide the Studebaker Manufacturing Company. I wish to point out in conclusion that the Federal courts, sitting in Texas, are on the question under consideration, not bound by the Texas court decisions. The question is one of general commercial law, upon which the Federal courts formulate their own rule of decision which is stricter than that laid down by the Texas courts. That the Texas courts will not neces- sarily follow the State courts upon such a question, see: Swift v. Tyson, 16 Pet., 1. Mfg. Co. v. Ins. Co., 179 U. S., 15. Upon the present inquiry the Federal courts hold that the trust fund theory does not apply, and that the relation of debtor and creditor exists. See : Bank v. Armstrong, 148 U. S., 50. In the present case suit would lie in the State courts 582 of Texas, even though the comptroller is in charge of the bank. Bank v. Armstrong, 148 U. S., 50. Calhoun v. Lanaux, 127 U. S., 634, 639. Bank v. Pahquique Bank, 14 Wall., 383, 395. THE LIABILITY OF A BANK FOR PROCEEDS OF CHECKS FOR- WARDED FOR COLLECTION WHEN THE CHECKS ARE SENT FOR COLLECTION TO THE BANK UPON WHICH THEY ARE DRAWN. (Beggs Manufacturing Company, March 22, 1905.) "We believe that information as to the following proposition would be of general interest to the members of the association, and we should be glad to have the opinion of the association's attorney, Mr. Levy Mayer, as to the liability. An out of town attorney in remitting for a col- lection sent us his personal check drawn on his local bank; we deposited the check with our bank here in the regular course of business. It after- ward transpired that they sent the check direct to the bank on which it was drawn and received in payment thereof that bank's draft on an east- ern bank. This draft in turn was sent through the regular channels to the bank on which it was drawn and they returned same to our bank with the notation, "refused because of insufficient funds. ' ' The question is, who is to suffer the loss? Our bank asks us to reimburse them, claiming that they are acting as our agent when collecting money and that they never actually received it. If we accept their version what is our recourse? If our bank would return to us the original check we could go to the attorney who made the collec- tion and ask him to make it good, but as the bank does not return us the check, but simply the bank draft, our attorney says that he paid us the money with his check, which afterward was re- turned to his bank and has been charged up 583 against his account. We should like to know whether or not our bank's position is the correct one. It would seem to us that if we deposited a $100.00 bill and the bill afterward became muti- lated or destroyed so that its full face value could not be collected, that they might ask us to make that bill good." In my opinion of March 21, 1905, in response to an inquiry from Studebaker Bros. Mfg. Co., I discussed the liability of the assignee of an insolvent collecting bank, for the proceeds of papers forwarded for col- lection. In Illinois it is held that a bank which receives for collection a check on another bank, according to the general banking customs, and uses due care and dili- gence in forwarding the check and selecting the col- lecting bank, is not liable to the payee for negligence for the default of the collecting bank, as the collecting bank is the agent of the payee and not of the forward- ing bank. Wilson v. Nat 'I Bank, 187 111., 222. In other words, the collecting bank becomes the agent of the owner of the check and not merely of the for- warding bank. Milling Co. v. Kuenster, 158 111., 259. And with few exceptions all checks which are credited to depositors are entered with the express or implied right to charge them back if they are not paid. 5 Cyc. Law, 499, citing cases. It is held by many of the courts that the bank upon which a check is drawn is not a suitable agent to collect the bill, and the forwarding bank is guilty of negligence in selecting such bank and must answer for all loss accrusing as the result of such a selection. SEncl. Law (2d Ed.), 809. 1 Morse, Banks and Banking (3d Ed.), Sec. 236a. Bank v. Goodman, 109 Pa. St., 422. Farwell v. Curtis, 1 Biss., 160. Bartel v. Bank, 95 Ga., 277. Anderson v. Rogers, 53 Kas., 542. 584 Door Co. v. Bank, 76 Minn., 36. In Illinois it has been held that a Chicago bank, which received a certified check for collection, and for- warded it for collection to the certifying bank, which mailed in return a worthless draft, was liable to the depositor for the full amount of the check. The court there said that the debtor can not be the disinterested agent of the creditor to collect the debt, and is not a suitable agent for collection. Drovers Nat 'I Bank v. Provision Co., 117 111., 100 (1886). In a later case, Wilson v. Carlinville Nat'l Bank, 187 111., 222 (1900), it was held that where one deposits in a bank a check for collection, drawn by a third person on another bank, which is the only one at the place where it is located, and it is the custom of banks, in collecting checks, to transmit them directly to the drawee, where no other bank exists at the particular point, such depositor can not be heard to say that the selection of the correspondent bank, which was also the drawee, was negligent in rendering the forwarding bank responsible for the loss of the check. The court there said : "It is a well-known, long established and gen- eral custom of collecting banks, to transmit directly to their correspondent out of town banks for collec- tion checks drawn upon such out of town banks and in their hands for collection in cases where there is no other bank in such towns. ' ' And so in Whitney v. Esson, 99 Mass., 308, 311, it was held that it was not a reasonable usage to send the draft to the drawee and run the risk of receiving worthless paper in return, and of sacrificing the claims of the owner on prior parties. Custom and usage, however, enter largely into the construction of the liability of a bank for collections. A depositor in selecting a bank as his collecting agent and thus availing himself of its facilities, is bound by any reasonable usage prevailing among the banks whether he knew of it or not. 5 Cyc. Law, 504. 585 There might be proof of such a custom and usage among banks to send collections to its own correspond- ents even though such correspondents were also the drawees, as would preclude the depositor from claim- ing that the forwarding bank was negligent in that regard. In Drovers' Nat'l Bank v. Provision Co., 117 111., 100, 106, the court said that the quantum of evi- dence that certain banks in Chicago were in the habit of transmitting checks drawn on other banks, to those for collection, hardly came up to the requirements of the court in regard to proof of a common law custom. In Farwell v. Curtis, 1 Biss., 160, it was held that the practice of sending checks by mail to the drawee was not usual, thereby indicating that no such custom or usage was there established or relied upon. But in Kershaw v. Ladd, 34 Ore., 374, 44 L. E. A., 236 (1899), it was "held that it was not negligence of the forwarding bank to send a check to the drawee's bank for collection where it was proved that such was the custom of banks, nor was such custom unreason- able. The court there relied upon the fact that it was evident in most of the cases that such a custom had not been raised or established. Furthermore, in Givan v. Bank, 47 L. E. A., 270 (Tenn. Ch. 1898), it was held that where the forward- ing bank selects a suitable intermediate bank, which forwards the check for collection to the drawee bank, the forwarding bank is not liable for negligence, but the negligence is that of the intermediate bank, and the forwarding bank is not then liable to the depositor. In most of the cases where the forwarding bank has been held liable for negligence, the ground of the de- cision has been that the debtor bank is not a proper agent to collect where such collecting bank is itself the debtor. Where a check or draft is drawn on a bank, such bank is not a debtor until the check or draft is accepted except in states like Illinois where a check constitutes an assignment of the fund. It has been held that where a note is payable at a bank it is not negligence to send such note to that bank. Indig v. Bank, 80 N. Y., 100. 586 However, the distinction in question does not seem to have been referred to in any of the cases. I have not sufficient facts before me to express an opinion as to whether such a custom could be proved in the present case. In the absence of such a custom I am inclined to the opinion that in this state the bank is guilty of negligence, in sending the check for collec- tion to the drawee and it is therefore responsible to the depositor for the loss occasioned thereby. In the absence of such liability, the insolvent bank could be liable only as a general creditor for the amount of the check ; of course, if there is no other bank in the town the case would fall within the doctrine of Wilson v. Bank, 187 111., 222, supra. There can, however, be no claim against the local attorney. His check was paid by the bank when it cancelled the check and drew its draft as a remittance for the proceeds. NOTE: See First National Bank v. Whittier, 221 111., 319. Ed. THE LIABILITY OF A CONSIGNOR FOR FREIGHT CHARGES WHEN THE CONSIGNEE REFUSES TO ACCEPT THE GOODS OR HAS BECOME BANKRUPT. (Garden City Sand Company, March 22, 1905.) "Shipper ordered material shipped from a cer- tain point to a certain other point; the consignee refused to pay the freight and other charges due on the material on its arrival at destination ; sub- sequently the consignee was thrown into bank- ruptcy. Has the railroad company the right to store the goods in warehouse without notice to the con- signor, and then after such storing notify the con- signor, and hold consignor responsible for the freight, demurrage and storage charges? It seems to us in this matter that if the railroad company is legally right in its action, the company can, if so inclined, subject an innocent shipper to 587 a severe loss by reason of the charges for freight, demurrage and storage being in excess of the value of the material. In above matter the consignor was notified after demurrage had accrued. Is it not the duty of a railroad company to look to the consignee for the charges against the property shipped? We do not know how often cases of this kind occur, but in our experience it is the first case of the kind, and we would like to have the benefit of the advice of the association's counsel; and we feel sure that other members of the association will be glad to read his opinion." In general, the consignor is liable for freight charges when the consignee refuses to accept the goods shipped, irrespective of whether title is in the consignor or the consignee. 6 Cyc., 500, and cases cited. Holt v. Westcott, 43 Me., 445. If the consignee refuses to take the goods on arrival, it is the duty of the carrier to store them and the lia- bility thereafter is that of a warehouseman. The carrier is under no obligation to return them. R. R. Co. v. Heilprin, 95 111. App., 402. 6 Cyc. Law, 474, and cases cited. In Illinois no obligation rests upon a railroad com- pany to give special notice to the consignee of the arrival of goods, unless such notice is required by a valid custom, of which the parties have notice, and which is presumed to be a part of the contract. There is a conflict of authority as to whether the carrier is bound to give notice to the consignor of the refusal of the consignee to accept the goods. The question has not been squarely passed upon in this State. In Gregg v. I. C. R. R., 147 111., 550, it was decided that the carrier need not give the consignor notice that the consignee refuses to accept the goods, where such notice was given by the consignee, and to the same effect is Rubber Shoe Company v. R. R. Co., 41 N. Y. S., 82. 588 In Hutchinson on Carriers (2d Ed.), Sec. 388, it is said: "The duty to give notice to the consignor or owner of the goods, in case of their refusal by the consignee, or when he is absent or can not be found, can arise only when the carrier is required to make a personal delivery or to give notice to the consignee of their arrival. It has no applica- tion, therefore, to railroad companies, when they are only required to deposit the goods in their warehouses to await the call of the consignee, with- out notice to him, which, as we have seen, is all that is generally required of such companies. Their whole duty as carriers is performed as soon as this is done, and the failure as warehousemen to give such notice would not be such negligence as to make them liable in that character for any loss which might be thereby occasioned. It is also said that when the duty devolves upon the carrier to give such notice to the consignor, and the at- tempt is made to hold him liable for the failure to perform it, it must appear, before he will be made liable, that the loss for which the claim is made upon him was the consequence of the omission to give the notice. If the loss be attributable to a cause which had no connection with notice to the owner, and which such notice would not have pre- vented, it is evident that the carrier should not be held liable for his failure to give it." And to the effect that no notice is necessary to the consignor, are the following authorities: Kremer v. Express Co., 6 Cold. (Tenn.), 356. Weed v. Barney, 45 N. Y., 344. Shoe Co. v. R. R. Co., 41 N. Y. Supp., 83. 6 Cyc., 474, and cases cited. On the contrary, however, it has been held that it is the duty of the carrier to notify the consignor when the consignee fails to receive the goods. Sugar Refining Co. v. McGhee, 96 Ga., 27. 5 Ency. Law (2d Ed.), 222. In 6 Cyclopedia of Law, 474, it is said : 589 ''If the consignee fails or refuses to take or accept the goods when ready for delivery, the car- rier remains liable for them as warehouseman only, but he is not under obligation to return them to the consignor. The duty of the carrier is to store or keep as warehouseman, and it seems that the carrier is not bound to give the consignor no- tice of the refusal of the consignee to accept." But, as opposed to this, in 5 Encl. of Law (2d Ed.), 222, it is said : "Notice should be sent to the consignor or owner, and the goods should be held in storage for a reasonable time, subject to further orders; if the parties still refuse to act, the lien may be enforced as provided by law." Although most of the cases cited in support of the latter quotation do not bear out the statement, it ap- parently presents the better view and I am of the opin- ion that this rule would probably be held to be the cor- rect one, if the question were raised in the courts at the present day. Custom and usage have entered so largely into the construction of contracts of this char- acter, that if it appeared that it was the usage of car- riers to notify consignors of the refusal of consignees to accept, the carrier would be bound to do so. When the consignee refuses to accept or pay for the goods, this is notice to the carrier that the goods are the property of the consignor, and the carrier must look to the consignor for the charges. The carrier thus becomes the agent of the owner (consignor) and is bound to exercise a reasonable diligence in protect- ing the rights of the owner. I am inclined to the opinion that the courts of this State, if the question is squarely presented, ought to and will hold that it is the duty of the carrier to notify the consignor, with due diligence, and hold the goods in storage for a reasonable time to await further orders. If any loss directly results from the failure of the carrier to give timely notice, the carrier is liable therefor. The carrier has a lien on the goods for freight and 590 storage charges and the consignor is liable for those charges. Some doubt exists as to whether the carrier has a lien for demurrage charges, but in most of the States, including Illinois, such a lien exists. Schumacher v. R. R. Co., 207 111., 199 (1904). R. R. Co. v. Dorsey Fuel Co., 1"2 111. App., 382. Yazoo, etc., R. Co. v. Searles, 37 So. Rep., 939 (Miss., 1905). In most of the States, therefore, the consignor would be liable for freight, storage and demurrage charges. However, if the carrier failed to use due diligence under the circumstances in notifying the consignor and damage directly results therefrom to the con- signor, the consignor is entitled to deduct such charges from the amount due the carrier. NOTE: See the later opinion .of Nov. 26, 1907 (Hunt, Helm, Ferris & Co.), as to the law of all the states upon the duty of a carrier to give notice to the consignor of the consignee 's refusal or failure to receive the good shipped. Ed. WHETHER A CONSIGNEE CAN BE COMPELLED TO PAY CAR SERVICE CHARGES ACCRUING AT POINT OF SHIPMENT. (Charles H. Hears & Co., March 22, 1905.) "We have had some controversy lately with Mr. H. H. Peebles, local agent for the C. M. & St. P. Ey. at Division street. He has put a few cars into our yard, on the expense bill for which, beside the ordinary freight charge, there was attached an item varying from $1.00 to $3.00, same being for car service accruing at point of shipment. Inas- much as this car service was something we could not locate, and, from our point of view, being properly a collection to be made by the agent at said point of shipment, we refused to pay this claim for car service, claiming, first, that the agent had no right to attach a charge for car service on to a regular expense bill, and second, that this car service should have been collected at point of shipment by the local agent at said point. No rail- way company, we contend, has a right to make a 591 collection agency out of us for something that we know nothing about. Mr. Peebles refers us to Article E, in Rule 19 of the Car Service Rules, under date of Septem- ber 1, 1904. We should like to have an opinion from your office as to whether we are right or wrong in our contention." I am not familiar with the terms of the bill of lad- ing under which the shipment was made, nor am I informed as to the place where the shipment orig- inated. In the various classifications it is provided that the consignee shall be liable for demurrage ac- cruing both at point of shipment and at destination. The uniform bill of lading contains a similar condi- tion. The consignor has the power to bind the con- signee by signing a bill of lading containing such a condition and in such a case the consignee would be liable. I assume, however, that no such condition was contained in the present bill of lading. Demurrage charges in this State are not considered as transportation or freight charges. Article E in Rule 19 of the Car Service Rule provides : "Car service charges due for detention of cars ordered to connecting lines within the switching limits of this association shall be collected by the agent of the forwarding line. When cars are or- dered or destined to points beyond switching lim- its, the agent, may, at his option, collect from ship- per or consignee, or let the charges follow as ad- vances." These rules do not bind the consignee or the shipper unless they are just and reasonable. In the present case I assume, as appears to be the fact, that the cars upon which the demurrage accrued have been deliv- ered to the consignee. It does not appear that the carrier is attempting to withhold the cars or to en- force a demurrage lien thereon. In most of the States, including Illinois, the carrier is entitled to a lien against the goods for demurrage, but it waives this lien by delivering the goods to the shipper. In the absence of any provision in the bill of lading 592 as above set forth, there is no privity of contract be- tween the carrier and the consignee in relation to the demurrage charge in question and I am of the opin- ion that the consignee can not be held liable therefor. See: Schumacher v. C. & N. W. Ry. Co., 207 111., 199. R. R.'Co. v. Fuel Co., 112 111. App., 382. Miller v. R. R. Co., 88 Ga., 563. R. R. Co. v. Steel Co., 201 Pa. St., 624. R. R. Co. v. Adams, 90 Va., 393. Darlington v. R. R. Co., 72 S. W., 122 (Tex.). Construction Co. v. R. R. 'Co., 121 Ala., 621. R. R. Co. v. Comm., 46 S. E. (Va.), 911. R. R. Co. v. George, 35 So., 193 (Miss.). Yazoo, Etc., R. Co. v. Searles, 37 So., 939 (Miss., Feb., 1905). NOTE: See opinion of March 27, 1906 (Western United Gas & Electric Co.), as to the right of a carrier to a lien for car service or demurrage charges and as to the law in general in relation to de- murrage charges. Ed. WHETHER A RAILROAD CAN REFUSE TO HANDLE SHIPMENTS FOR POINTS WITHIN THE CITY LIMITS TO WHICH THEY HAVE PUBLISHED TARIFFS, AND AS TO THE EFFECT OF THE PROBABILITY OF A STRIKE AS AN EXCUSE FOR SUCH REFUSAL. (Barrett Manufacturing Company, May 22, 1905.) " Referring to the writer's conversation with you over the 'phone this morning regarding re- fusal of the C., M. & St. P. Railroad to handle shipments for points within the city limits to which they have published tariffs. The only excuse which they have to offer for not doing so is that their Mr. C. D. Bush, General Superintendent, has entered into an agreement with the switchmen, trainmen, freight handlers and heads of all Unions employed by that com- pany, not to handle any freight within the switch- ing limits during the Teamsters' strike. The 593 Unions ' part of the agreement being that they will handle any freight which is delivered to the freight houses or received from connecting lines from points outside of the city limits whether loaded or delivered by Union or Non-union labor. Their switching tariff No. 14 reading between Chicago station, also between Chicago station and points of interchange with connecting lines pro- vides for switching rates between Chicago, Union Stock Yards, Western avenue, Cragin Junction, Division street, Deering and Union Stock Yards of from $5.00 to $8.00 per car. Their G. F. D. No. 4700 provides for local rates based on Illinois Distance from Chicago to Cragin, Elsmere, Her- mosa and various other points within the city lim- its. They have, however, refused to receive freight for any of these points. Mr. Bush, as well as the other officials of the St. Paul, no doubt, feel that they are legally bound to perform this service even under the present conditions, but evidently prefer to stand any damages which they may be put to on account of their refusal to perform the service rather than have their system tied up for a few days on account of a strike. If there is any action we can take to compel the St. Paul to handle our business we would like to be advised at an early date so that the proper steps can be taken in this direction. ' ' In a subsequent communication the company states : "The only information which we now desire on the subject is what action can be taken to compel the St. Paul Kailroad to handle shipments as pre- scribed by law. ' ' A common carrier is bound at common law to re- ceive and transport goods for all alike without un- just discrimination. This is its public duty and it can not exempt itself therefrom by any contract. Such a contract would be against public policy and there- fore void. C. & N. W. Ey. Co. v. People, 56 111., 365. Railway Co. v. Mining Co., 68 111., 489. 594 Not only this duty exists at the common law, but it has been recognized and provided for by express statutory enactment. Kurd's Kev. Stat. of 111., 1903, Chap. 114, Sees. 22, 23. If the carrier, therefore, refuses to accept and carry freight without sufficient excuse therefor, it can be coerced to do so by the writ of mandamus. Of course, the carrier can refuse to carry in particular cases, as, for instance, that the freight is improperly packed or because the charges are not paid in advance, but where the freight is refused on a particular ground the car- rier is estopped to say that it refused on other grounds. Again, the statute above referred to expressly pro- vides that freight need only be paid in advance where That mandamus is the proper remedy, see the fol- lowing : People v. R. R. Co., 176 111., 512. C. & N. W. Ry. Co. v. People, 56 111., 365. 5 Am. Eng. Enc. Law (2d ed.), 162. /. C. R. R. Co. v. People, 143 111., 434. C. & A. R. R. Co. v. Suffer*, 129 111., 274. The rule is otherwise in some of the States for the reason that in such States mandamus will not lie where the party has other adequate remedy. Hutchinson on Carriers (2d ed.), Sec. 115 b. Under the Illinois Statute regulating mandamus, however, the existence of another remedy does not af- fect the right to a mandamus. The statute also pro- vides that treble damages may be recovered. See R. R. Co. v. People, 19 111. App., 141. A mandatory injunction can also be obtained to compel the railroad company to carry goods without discrimination. Marshall Field & Co. v. Becklenberg, 1 111. C. C., 59 (1905). C., B. & Q. Ry. v. Burlington R. R., 34 Fed., 481. Toledo & C. R. Co. v. Penn. R. Co., 54 Fed., 730. 595 lift v. Southern R. Co., 123 Fed., 789. In re Lennon, 166 U. S., 548. Vincent v. C. & A. Ry., 49 111., 33. High on Injunctions (3d Ed.), Sec. 621a. NOTE: See opinion of April 20, 1907 (Wilson's Interest), in refer- ence to forcing the interchange of switching by connecting carriers. Ed. THE METHOD OF PROCEDURE TO OBTAIN A SECOND LEVY ON PROPERTY COVERED BY A JUDGMENT. (E. H. Sargent & Co., March 22, 1905.) "We would like to ascertain what method of procedure is taken to obtain a second levy, pro- vided one levy is made covering a judgment, and the amount of the levy is not sufficient to satisfy the entire judgment." Section 4, Chap. 77, Eevised Statutes of Illinois, provides : "The person in whose favor any judgment, as aforesaid, may be obtained, may have execution thereon in the usual form, directed to the proper officer of any county, in this State, against the lands and tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law. ' ' '(2 S. & C., Rev. Stat., p. 2331.) Section 8 provides: "Executions * * * shall be made returnable ninety days after the date thereof. ' ' Section 10 provides: "All and singular the lands, tenements, real es- tate, goods and chattels (except such as is by law declared to be exempt) of every person against whom any judgment has been or shall be hereafter obtained in any court of record, for any debts, damages, costs, or other sum of money, shall be liable to be sold upon execution, to be issued upon such judgment." (2 S. & C., Rev. Stat., 2340.) 596 Section 48 of the same act provides the method for the sale of personalty levied upon, under an execu- tion. The original execution is, therefore, effective for ninety days after its issuance, and during this time an alias or second can not be levied. During this period the sheriff may levy upon any property of the defend- ant not exempt, sufficient to satisfy the judgment. The sheriff, however, may take the responsibility of re- turning the execution before the expiration of the ninety days. If the judgment is unsatisfied, in whole or in part, after the return of the first execution, the plaintiff may cause an alias or second execution to be issued and levied on the property of the defendant. This can not be done, however, until the return of the original execution and until the prior levy has been disposed of by the sale of the property, or otherwise. Marshall v. Moore, 36 111., 321. Harris v. Evans, 81 111., 419. Bowen v. Parkhurst, 24. 111., 258. 8 Ency. of PI. & Pr., p. 440. But it is within the power of the court to issue an alias execution even though the original execution has not been returned and where exceptional circumstances exist this power will be exercised. Freeman on Executions (2d ed.), Sec. 52. In case the sheriff fails to proceed with the sale, a writ of venditioni exponas may be issued compelling him to do so. The levy upon property is not prima facie evidence of a satisfaction, and if the prior levy is undisposed of, the writ of venditioni exponas can be issued in a fi. fa. clause or an alias execution added. The officer must then sell the property levied on under the first execution and if it proves insufficient, then the officer can seize and sell other property sufficient to satisfy the judgment. Babcock v. McCamant, 53 111., 214. Freeman on Executions (2d ed.), Sees. 57-59. 597 INJUNCTIONS AGAINST EMPLOYES TO RESTEAIN PICKETING. (La Bastie Glass Company, of Ottawa, 111., April 17, 1905.) "We have at present a strike on, and at times our old employes bother us considerably in the way of interfering with our present workmen. In men- tioning the fact to our attorney this morning of being members of this Association, he said it might be well if we would write you and ask you for in- formation from the Association's attorney, as to injunctions, as we are about to ask the court to grant us an injunction against our old employes." In my opinion of November 10, 1904, in response to an inquiry from the Illinois Malleable Iron Com- pany I discussed the granting of injunctions to re- strain picketing by labor unions. An injunction will generally lie to restrain labor unions and members from attempting by intimidation, threats of personal violence and other unlawful means to force employes to quit work and join a strike. In Christensen v. Kellogg Switchboard & Supply Co., 110 111. App., 61 (1903), it was held that an in- junction was properly issued to restrain strikers from gathering around their former employer's place of business, stationing themselves in the streets and al- leys and approaches to such place of business, intimi- dating the employes of such employer who insist on remaining at work, maintaining what is known as a system of picketing, and menacing and threatening his employes where such employer has suffered pe- cuniary loss through his inability to complete his con- tracts. In my opinion above referred to, I said : "Picketing in itself is not unlawful, but when accompanied by threats, abusive epithets, or in- timdations, it becomes unlawful." So, in this case, if there is merely persuasion exer- cised by the striking employes, an injunction will not lie. But, if violence, intimidation or such interference 598 with the employes is used as to intimidate a reason- able man and prevent him from laboring, such acts are unlawful, and can be enjoined. The authorities are in general accord on this ques- tion and injunction will be granted under the limita- tions above stated. In response to the information de- sired, I cite the following cases where the rule is laid down as above: To the same effect see: Beaton v. T arrant, 102 111. App., 124 (1902). Shoe Co. v. Saxey, 131 Mo., 212, 32 S. W., 1106. Vegelalin v. Gunther, 167 Mass., 92 ; 44 N. E., 1077, 35 L. E. A., 722, which discusses the subject thoroughly. Plant v. Woods, 176 Mass., 492, 57 N. E., 1011. Cumberland Glass Mfg. Co. v. Union, 59 N. J. Eq., 49, 46 Atl., 208. Flaccus v. Smith, 199 Pa. St., 128. Mfrs. Outlet Co. v. Longley, 20 E. L, 86. Lyons v. Wilkins, (1896) 1 Ch., 811, 830. Printing Co. v. Howell, 38 Pac., 547, 28 L. E. A., 464. Murdoch v. Walker, 152 Pa., 595, 25 Atl., 492. Sherry v. Perkins, 147 Mass., 212. Erdman v. Mitchell, 207 Pa., 79. Mining Co. v. Miner's Union, 51 Fed., 250. And see note on Injunctions against Strikes, in 28 L. E. A., 464, and cases there cited. 18 Am. Eng. Enc. Law (2d Ed.), 80, 91, 92. And see cases in Century Digest, vol. 27, cc!812-15, sees. 174, 175. 2 Eddy on Combinations, sec. 1027 et seq. Eay on Contractual Limitations, sec. 77. Cogley on Strikes and Lockouts. NOTE: See also, the later Illionis cases: O'Brien v. People, 216 111., 354, affirming Christensen v. People, 114 111. App., 40; Sloan v. Peo- ple, 115 111. App., 84; McBride v. People, 127 111. App., 344; Franklin Union v. People, 220 111., 355; Flannery v. People, 225 111., 62; Hake v. People, 230 111., 174; and Employers' Teaming Co. v. Teamster's Joint Council, 141 Fed., 679. Ed. 599 THE CONSTITUTIONALITY OF THE FOREIGN CORPORATION TAX LAW OF TEXAS. (Parjin & Orendorff Company, April 17, 1905.) "We enclose herewith a copy of the Texas law on franchise taxes and would be pleased to have you give us your opinion upon its constitutionality or the necessity of paying the tax as a foreign corporation domiciled in the State of Texas. Must the tax be paid on the entire corporation stock in the Illinois corporation, or only upon the capital furnished to the branch houses doing business in the State of Texas?" I have examined the law in question and am of the opinion that it is a constitutional enactment. The law provides inter alia. "Each and every foreign corporation hereto- fore authorized or that may hereafter be author- ized to do business in this State, shall, on or be- fore the first day of May of each year, pay to the secretary of state the following franchise tax for the year following, to-wit : One dollar on each one thousand dollars or fractional part thereof of the authorized capital stock of the corporation up to and including one hundred thousand dol- lars; and one dollar on each five thousand dol- lars or fractional part thereof of such stock in excess of one hundred thousand dollars, and up to and including one million dollars ; and one dol- lar on each twenty thousand dollars or fractional part thereof of such stock in excess of one mil- lion dollars, and up to and including ten million dollars ; and one dollar on each fifty thousand dol- lars of such stock in excess of ten million dollars ; but such tax shall not be less than twenty-five dollars in any case. Whenever a corporation is chartered or authorized to do business in this State, it shall pay the proportional part of such annual franchise tax corresponding to the length of time before the next following first day of May, 600 and if such tax is not then paid, no such charter shall be filed or permit issued. The franchise tax herein provided for shall be computed upon the basis of the total amount of the capital stock issued and outstanding, plus the surplus and undi- vided profits of the corporation, instead of upon the authorized capital stock, whenever such total amount is different from the authorized capital stock. ' ' The tax must be paid upon the whole of the author- ized capital stock and not upon the amount within the State of Texas. The tax must be computed upon the basis of cap- ital stock issued and outstanding, plus the surplus and undivided profits, instead of upon the authorized cap- ital stock, whenever such total amount is different from the authorized capital stock. WHETHER A RAILROAD COMPANY CAN CHARGE MORE FOR A SHORT THAN A LONG HAUL. (W. 0. King & Co., April 17, 1905.) "We would thank you to advise us the address of the Interstate Commerce Commission. We would also like to know whether railroad companies are allowed to charge more for a short than a long haul. For instance, the rate from Duluth and Ashland to Chicago is lOc per hun- dredweight. The rate from Couderay, Wis., fifty or sixty miles nearer Chicago than Duluth is 12c and the same from many other points south of Duluth range from lie to 12|c to Chicago. These rates certainly come within the interstate commerce business and we would like to know whether there is any appeal from the present rates. The railway companies are arbitrary and the rates excessive. ' ' The address of the Interstate Commerce Commis- sion is Washington, D. C. Communications addressed to Hon. E. A. Moseley, secretary Interstate Commerce 601 Commission, Washington, D. C., will receive prompt attention. The Interstate Commerce Act in the long and short haul clause (Sec. 4) provides as follows : 1 ' That it shall be unlawful for any common car- rier subject to the provisions of this act to charge or receive any greater compensation in the aggre- gate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance ; but this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer dis- tance : Provided, hoivever, That upon application to the Commission appointed under the provisions of this act, such common carrier may in spe- cial cases, after investigation by the Commis- sion, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act." A carrier in making a tariff rate may judge in the first instance as to whether, in prescribing a greater charge for a short than for a long haul, the circum- stances and conditions are or are not "substantially similar." It is not obliged to seek an investigation by the Interstate Commerce Commission as to whether circumstances and conditions justify the rate. But in fixing the rate the carrier does so at its peril sub- ject to liability under the act if it should be afterwards adjudicated that the charge so fixed is unlawful. Interstate Commerce Com.m. v. Atcliison, 50 Fed., 295. In construing this section, the United States Supreme Court has laid down the rule that competition, no 602 matter where it originates, and whether actual or potential, creates a dissimilarity of circumstances and conditions that will justify the carrier in charging more for a short haul than for a long haul over its line for like merchandise carried in the same general direction. If a dissimilarity of conditions exists, the question arises whether this is so great as to justify the discrimination complained of. E. Tenn. R. Co. v. Interstate Com. Comm., 181 U. S., 1. T. & P. Ry. Co. v. Interst. Com. Comm., 162 U. S., 197. Interest. Com. Comm. v. Alabama R R., 168 U. S., 144. And in Interstate Commerce Commission v. L. & N. R. Co., 190 U. S., 273, it was held that where a lower rate is given to a point on the carrier's line as a result of competition, the making of such rate does not violate the long-and-short haul clause. In the present instance, the carrier undoubtedly is justified in charging a lower rate from Duluth and Ashland. Both of these cities have lake competition to Chicago as well as rail competition. They are com- petitive points. An interior point, where no competi- tion exists such as at Duluth, can not complain if its rates are higher than the rates from Duluth to Chicago, even though such interior point is nearer to Chicago than is Duluth. Furthermore, lake competition is a great leveler of rates and must necessarily force the railroads to make lower rates between Duluth, Ashland and Chicago than between points where such water competition does not exist. I am of the opinion that lower rates from Duluth and Ashland to Chicago than from Couderay are justifiable and legal. The discrimination must be reasonable, but in the absence of all the facts and circumstances, I can express no opinion as to whether the difference of 2c per cwt. between the two places is more than is warranted. Of course, an appeal lies to the Interstate Commerce 603 Commission, and if the difference in rates is unwar- ranted, relief may be had. IN REFERENCE TO FORM OF BILL OF LADING FOR COMMON LAW LIABILITY. (Tonk Manufacturing Company, June 24, 1905.) "We have read Mr. Mayer's letter to you, out- lining his opinion as to the stamping by carriers 'Owner's Bisk' on shipping receipts. We send you herewith original and duplicate of the ship- ping receipts we are using, and will ask you to inform us as to the advisability of eliminating the underscored portions of same. We would appreciate hearing from you in reply to this letter. ' ' The shipping receipt and order referred to contain the following clause : "Received from Tonk Manufacturing Company, in good order, the following goods described below, to be forwarded without unnecessary delay to con- signee named, subject to the rules and conditions printed on the regular shipping bills now used loy the company signing this receipt." While I am of the opinion that the clause in italics would probably not in this State subject the shipper to the conditions of the bills of lading limiting the car- rier's liability, I suggest that in order to avoid mis- understanding with the carrier in event of loss or dam- age, the clause in question be omitted from both the shipping order and receipt. In my opinion of March 17, 1905, in response to an inquiry from the F. H. Earl Manufacturing Com- pany, I discussed the question as to the stamping by the carriers of "Owner's Risk" on the shipping receipts, and in my various opinions in reference to the uniform bill of lading, I have stated that in Illinois and a few other States, express assent by the shipper to the conditions limiting the Carrier's liability is necessary, in order to enable the carrier to take advan- tage of the conditions. 604 In many States mere notice is sufficient. In Dunbar v. Charleston and W. & C. Ry. Co., 62 S. C., 414; 40 S. E., 884, it was held that a receipt stating that the shipment is subject to the bill of lading of the carrier constitutes notice to the shipper of the terms of the contract of carriage. THE LIABILITY OF A CONSIGNEE FOR DEMURRAGE OR CAR SERVICE CHARGES. (Reid, Murdoch & Co., June 24, 1905.) "I inclose you the correspondence we have had with the Michigan Car Service Association in ref- erence to their claim for demurrage at New Buffalo. Will you kindly look into this matter and see what can be done, and oblige. ' ' Bills rendered by the Michigan Car Service Asso- ciation for the Michigan Central Railroad to Reid, Murdoch & Co. for car service to the amount of $237.00 on certain cars of apples delayed at New Buffalo Sta- tion are enclosed, together with correspondence with the manager of the Car Service Association relative to payment of the same. In my opinion of November 14, 1904, and January 5, 1905, for W. 0. King & Co., and of March 22, 1905, for Charles H. Mears & Co., I discussed the subject of demurrage, to which I refer. Sufficient facts are not presented to enable me to express a positive opinion as to the liability of Reid, Murdoch & Co. for these demurrage charges. This liability may depend upon the terms of the bill of lading or contract of shipment, whether demurrage occurred at point of shipment or at destination, or upon condi- tions surrounding shipment or delivery. Assuming that car service occurred at New Buffalo, through failure of the consignee to unload the cars within forty-eisrht hours after delivery to him, as pro- vided by the Car Service Rules, I am of the opinion that the consignee would be liable for the charges. 605 Circumstances, however, might be such that the con- signee would not be liable, as improper or faulty deliv- ery by the carrier, etc. On the other hand, if the car service accrues at point of shipment, a different ques- tion arises as to the liability of the consignee for these charges. If the bill of lading provides (as did the Uniform Bill of Lading) that the carrier may make a reasonable charge for detention of the car for loading or unloading, the consignee may be bound by the terms of the bill of lading and liable for car service at point of shipment, as the consignor may be the agent of the consignee and bound by the bill of lading issued to the consignor. Scarf e v. Tobin, I L. J. K. B., 183, 184. And where a common carrier, upon delivery of goods at destination, waives its lien for unpaid freight charges, and permits the consignee, who has knowledge of the fact that charges to a certain amount remain unpaid, and that the carrier is giving up a lien thereon for his benefit, to accept the goods and to remove them, such acceptance and removal are evidence from which to imply an agreement on the part of the consignee to pay to the carrier the known amount of the charges. Cent. R. R. Co. v. MacCartney, 68 N. J. L., 165; s. c. 52 At!., 575, 577. THE LIABILITY OF AN INITIAL CARRIES FOR THE ACTS OF A CONNECTING CARRIER IN DELIVERING GOODS WITHOUT THE PRODUCTION OF THE BILL OF LADING WHERE GOODS ARE SHIPPED TO ORDER OF CONSIGNOR WITH SIGHT DRAFT ATTACHED TO BILL OF LADING. (Francis Beidler Company, June 24, 1905.) "As members of your association we wish to be, advised relative to the liability of carriers when accepting a shipment which, on account of doubt- ful rating of customer, is shipped to the order of consignor with bill of lading and sight draft attached. The case we refer to is a shipment made from our southern mill, this car originating on the rails 606 of the Atlantic Coast Line, and they issued bill of lading, in which we were shown both as consignor and consignee. This shipment, however, is des- tined to a point beyond their rails, and it seems that when this car reached its destination the agent of the delivering line surrendered car to our cus- tomer, regardless of the fact that the car was billed to ourselves and could only be delivered upon surrender of bill of lading or making pay- ment of a sight draft. We have been unable to secure any satisfaction whatever as the initial line disclaims any respon- sibility. To what extent is the initial line liable for its immediate connections? Can we not hold them to pay for this car, or is it incumbent upon us to look to the delivering line for adjustment of our claim? The party who received this lumber is not a responsible person, and he has declined to make payment for this car." Where the consignor ships goods by railroad and attaches a sight draft to the bill of lading, this evi- dences an intention on the part of the consignor to reserve the title in himself until the payment of the draft. The carrier, in such a case, is not authorized to deliver the freight to the consignee without the sur- render of the bill of lading, and if it does so it is liable for the value of the goods to the consignor. In the case presented, therefore, the connecting carrier which makes the delivery is directly liable to the consignor. Whether the initial carrier is liable presents a more difficult question. In my opinion of this date, in response to an inquiry from the United States Pharma- cal Company, I discussed the liability of initial car- riers for the defaults of connecting carriers, to which opinion I refer. As will be seen from that opinion, the liability of the initial carrier for the defaults of the connecting carrier depends upon the conditions of the bill of lading constituting the contract of transporta- tion, or the particular circumstances of the case, or the law of the State where the contract of transporta- tion was entered into. 607 I can not express a positive opinion without further information as to the terms of the bill of lading and the points of origin and destination of the shipment in question. In any event, recourse may be had against the connecting carrier in default. IN REFERENCE TO THE FOREIGN CORPORATION LAW OF WIS- CONSIN AND THE NECESSITY OF COMPLIANCE THERE- WITH. (B. P. Smith & Sons Company, June 24, 1905.) "We inclose herewith a communication which we received this morning. We suppose you have received others like this and they have been passed upon. Will you please write us in regard to the subject, and oblige." The enclosure referred to is a communication from a law firm of Madison, Wis., stating : "Inclosed you will please find copy of statement being sent by the secretary of State to all foreign corporations. "We understand that the provision of the law will be strictly enforced hereafter. All foreign corporations not having filed certified copies of their articles should do so at once, as neglect to do so is disastrous to the corporation in case of liti- gation within the State. ' ' This question is fully covered in my opinion of March 17, 1905, in response to a query from The John Davis Company. Since writing the foregoing opinion, the Supreme Court of Wisconsin in March, 1905, has handed down a decision in reference to the foreign corporation laws of Wisconsin, in the case of Greek-American Sponge Co. v. RichardsonDrug Co., 102 N. W., 888, which fully confirms the conclusions of my former opinion. The court there said : "The facts before us show a course of dealing wherein a foreign corporation, as a dealer, has undertaken to enforce payment for goods which 608 were transported to this State, delivered and ac- cepted by a purchaser, under an agreement made in this State providing that when the goods were delivered to the purchaser they might be rejected if not satisfactory. It is unquestioned in this case that respondent was engaged in interstate com- merce while transporting the goods from Chicago, 111., to Milwaukee, Wis., but it is urged that sub- sequent to their arrival in Milwaukee and before their delivery to defendant they ceased to be an article of interstate commerce coming under the clause of the federal constitution, and, therefore, the provisions of section 1770b, Eev. Stat. 1898, applied to the transaction had concerning them in Milwaukee, which resulted in a consummation of the sale, and that this renders the contract of sale non-enforceable by the plaintiff." And held: ''It must be held that the contract of sale sought to be enforced by the respondent pertained to the sale of a lawful article of commerce in its original package, while it was an article of interstate com- merce. Under these circumstances the contract is exempted from the provisions of section 1770b, and plaintiff is not precluded from enforcing it, though, as a foreign corporation, it has failed to comply with the requirements of this law. The right of the State to prescribe the conditions upon which foreign corporations may carry on business within the State is undisputed and stands ap- proved by the courts. When, however, such regu- lation imposes conditions which restrict them in their rights, as foreign corporations, to make con- tracts pertaining to commerce between the States, then such legislation is an invasion of their con- stitutional right under the provision which con- fers upon Congress the power to regulate such commerce, and such legislation is invalid to that extent. ' ' If the method of doing business in Wisconsin is as outlined in my former opinion, a foreign corporation 609 need not comply with the foreign corporation laws of Wisconsin. However, as the facts are not before me as to the method of doing business employed by the E. P. Smith & Sons Company, I can express no opin- ion in their particular case. NOTE: See, also, the later Wisconsin cases of Allen v. Milwaukee, 106 N. W., 1099 (Wis., 1906) ; and Catlin # Powell v. Schuppert, 110 N. W., 818 (Wis., 1907). Ed. WHETHER THE INITIAL CAREIEE IS LIABLE FOR THE DE- FAULTS OF CONNECTING CARRIERS IN THE TRANSPORTA- TION OF FREIGHT AND BAGGAGE. (United States Pharmacal Company, June 24, 1905.) "As shippers we have met with loss on several occasions, both in the way of baggage and freight, on which we have not been able to collect from the railways, owing to the fact that the freight and baggage passed through two or more lines, and each railway repudiated responsibility, leav- ing the burden on our shoulders. We would like to know if there is any way by which we could reach one of two or more roads in traveling over two or more States where baggage has been lost in transit, likewise where freight has been dam- aged or robbed in transit. To state a specific point: A person traveling from Michigan to St. Louis was there joined by a second party and together they traveled to Arizona over four lines of railways. Somewhere between St. Louis and Arizona their baggage was opened and robbed, some $15 to $20 worth of new clothing being re- moved. Application to several railways in each case answered that the theft did not occur on their line, and leaving us unable to prove, beyond the fact that the theft had been committed, on which of the roads it occurred. Is there any law which would enable us to bring suit against one, and if so, which road! The States through which the baggage traversed were Missouri, Arkansas, \ 610 Texas and the Territory of Arizona, similarly in the case of freight. What action could we take!" In my opinion of October 30, 1903, in response to an inquiry from the Austin Manufacturing Company, I discussed the liability of an initial carrier for the neg- ligence of connecting carriers, to which opinion I refer. It frequently becomes difficult to determine whether, under the circumstances of a particular case the initial carrier is liable for the safety of goods throughout the whole course of transit over connecting lines, or only to the terminus of its own line. At common law a car- rier is not bound to transport freight beyond its own line. But it is well settled that a carrier may specially contract to carry freight beyond the termini of its own line so as to become liable for its safe delivery at the ultimate destination, and such liability con- tinues throughout the entire transit. When the carrier thus undertakes to carry freight through to its destination, all connecting lines partici- pating in such transportation become its agents for whose default it is responsible to the owner of the goods. Hutchinson on Carriers (2d Ed.), Sec. 145. It is difficult to determine what is sufficient to con- stitute a contract on the part of the carrier to carry the goods to the destination beyond its own line. The courts in this country are at variance in their holdings as to such liability. In many States it is the established law that where the carrier accepts goods for carriage, directed to a point beyond its own route, it assumes by the very act of acceptance, in the ab- sence of any express contract to the contrary, the ob- ligation to transport the goods to the final destination. In such a case the responsibility rests upon the initial carrier until the end of the transit, and this is the rule in Illinois. I. C. R. R. Co. v. Frankenberg, 54 111., 88. R. R. Co. v. Copeland, 24 111., 332. R. R. Co. v. Johnson, 34 111., 389. R. R. Co. v. People, 56 111., 365. Adams Exp. Co. v. Wilson, 81 111., 339. 611 St. L. S. W. Ry. Co. v. Elgin Milk Co., 175 111., 557. R. R. v. Jagqerman, 115 111., 407. Lock Co. v. fl. R., 48 N. H., 339. Beard v. R. R., 79 la., 527. R. R. v. Campbell, 36 Ohio St., 647. Transp. Co. v. Zocft, 86 Term., 393. Pereira v. . R., 66 Cal., 92. Muschamp v. . #. Co., 8 M. & W., 421. 6 Am. & Eng. Enc. Law (2d Ed.), 611. E. J. & E. Ry. v. Bates, 200 111., 636. The reason of the rule is well stated in /. C. R. R. Co. v. Frankenberg, 54 111., 88, 98 : ' ' Now, on the point of public convenience, which consideration had great weight with us in deter- mining which rule should be adopted, it seems to us that consignors of the productions of our coun- try, or other property, by railroad, should not be required, in case of loss or damage, to look for re- muneration to any other party than the one to which they delivered the goods. It would be a great hardship, indeed, to compel the consignor of a few barrels of flour, delivered to a railroad in this State, marked to New York City, and which are lost in the transit, to go to New York or to the intermediate lines of road and spend days and weeks, perhaps, in endeavors to find out on what particular road the loss happened, and having as- certained it, in the event of a refusal to adjust the loss, to bring a suit in the courts of New York for his damages. Far more just would it be to hold the company who received the goods in the first instance as to the responsible party, and the inter- mediate roads, its agents, to carry and deliver, and it is the most reasonable and just, for all rail- roads have facilities not possessed by a consignor of tracing losses of property conveyed by them, and all have, or can have running connections with each other. Above all, when it is considered the receiving company can, at the outset, relieve itself from its common law liability by a special and 612 definite agreement, such a rule can not prejudice them. The rule being known, all parties can read- ily accommodate their business to it and no incon- venience can result to any one from its opera- tion." But the greater number of States hold the initial carrier liable only for losses on its own line, unless there is an express contract to the contrary. Hutchinson on Carriers (2d Ed.), Sec. 149. 6 Am. & Eng. Enc. Law (2d Ed.), 615. Detroit v. R. R. Co., 43 Mich., 609. Hope v. R. R. Co., 69 N. W., 487 (Mich.). Myrick v. Mich. Cent. R. R. Co., 107 U. S., 248. Nutting v. R. R. Co., I Gray, 502. C. & 0. R. Co. v. Stock, 51 S. E., 161 ( Va., June 15, 1905). The issuing of a through bill of lading would con- stitute an express contract and the initial carrier would be liable. Statutes in several States make a carrier respon- sible for the negligence of succeeding carriers. Such a statute exists in Missouri (Rev. St. 1899, Sec. 5222). It has been there held, however, that the initial carrier may by express contract limit its liability to loss or damage occurring on its own line, if it agrees to carry only to the end of its own line. Dimmitt v. R. R., 103 Mo., 433. Hill v. R. R. Co., 46 Mo. App., 520. But if a through bill of lading is issued, in Missouri, the initial carrier is liable for the negligence of sue- ceedinjr carriers. Grain Co. v. R. R., 176 Mo., 480, 75 S. W., 638 (1905). Liability beyond the terminus of the carrier's line may be excluded by contract, and limitations of this nature are found in nearly all the present bills of lading. They will ordinarily be enforced under the same circumstances that any other contract would be enforced. But in those States where acceptance of goods directed to a point beyond its own line renders the carrier responsible for the entire transit, the ship- 613 per must assent to the terms limiting the liability to its own line, and in Illinois and several other States an express assent is necessary. It was held in I. C. R. R. v. Carter, 165 111., 570 (1897), that while a carrier may refuse to assume the responsibility of a through carrier, and by contract with the shipper may restrict its liability to its own line, yet it can not do so by a mere stipulation in a bill of lading not signed by the shipper, without proof that the shipper accepted the same and consented to the restriction. On the other hand, even if there is a contract for through carriage, the intermediate carrier who caused the injury may be held liable. C. & N. W. R. Co. v. The Packet Co., 70 111., 218. R. R. v. Tisdale, 74 Tex., 8. Barter v. Wheeler, 49 N. H., 9. And it has been held that where a partnership as- sociation exists between several railroads, any one or all may be held liable, unless exempted by contract. Block v. Fitchburg R. R. Co., 139 Mass., 308. (Erie & North Shore Despatch Fast Freight Line.) As to baggage, the liability of a carrier is that of an insurer. Its liability is ordinarily the same as in the carriage of freight, and is governed largely by the same rules. The carriage of baggage being a mere incident to the carriage of the passengers a through contract as to the passenger will be a through contract as to bag- gage. Hutchinson on Carriers (2d Ed.), Sec. 715. The usual baggage check delivered to a passenger upon receiving his baggage is a receipt merely in- tended to afford evidence of ownership and identifica- tion ; and in no sense embodies the contract of car- riage between the passenger and the carrier. 3 Am. & Eng. Enc. Law (2d Ed.), 580. Isaacson v. N. Y. Cent. R. R. Co., 94 N. Y., 278. 614 The initial carrier of baggage may contract to be liable for the entire route, or restrict its liability to losses on its own line. In a number of States, where baggage is checked through under a through ticket the carrier is held to insure the safe delivery at destination and is liable for injuries to such baggage whenever occurring. 3 Am. & Eng. Encl. Law (2d Ed.), 573. /. C. R. R. Co. v. Copeland, 24 111., 332. Hawley v. Screven, 62 da., 347. Western Sash Co. v. R. R., 177 Mo., 641; 76 S. W., 998. But in other and perhaps the larger number of States, the initial carrier is held liable only for losses on its own line, or through its failure to make proper delivery to connecting lines. 3 Am. & Eng. Enc. Law (2d Ed.), 576. Mich. Cent. R. Co. v. Manfg. Co., 16 Wall., 318. In a late case in Missouri it was held that a carrier which agrees to transport a passenger and her bag- gage to destination is, in the absence of a special agree- ment limiting its responsibility, liable throughout the journey for the loss of the baggage by itself or by any other carrier which assists in performing the contract. Hubbard v. M. & 0. Ry. Co., 87 S. W., 52 (Mo., May 2, 1905). In the specific case mentioned, sufficient informa- tion is not furnished to enable me to express a definite conclusion. The liability would be governed by the laws of the State where the contract of transportation was entered into. A different situation would exist if the passage from Michigan to Arizona was under a through contract that if tickets were purchased at St. Louis, or at other points. Furthermore, the condi- tions of the contract of transportation would affect the liability. If the tickets were purchased at S. Louis and provided for through transportation, and the con- tract did not limit liability to the initial carrier's own line, I am of the opinion that under the laws of Mis- souri the initial carrier, by accepting the baggage, 615 would be liable for the safe transportation to the desti- nation. NOTE: See opinion of July 20, 1906 (A. L. Goetzmann), in ref- erence to the liability of initial and connecting carriers, setting out the statutes of the various states relative thereto. The Interstate Com- merce Act as amended in 1906 (sec. 20) now makes the initial car- rier liable for the negligence of connecting carriers. Ed. THE LIABILITY OF A COMMON CARRIER FOR DELAY IN DELIV- ERY OF SHIPMENTS AND THE MEASURE OF DAMAGES THEREFOR. (Joseph T. Ryerson & Son, June 26, 1905.) 1 'On February 12, 1902, one of our mills shipped from Youngstown, Ohio, to a galvanizing company at Chicago one car of angles for one of our cus- tomers located at Elgin, 111. Our customer had a contract with the galvanizing company for galvan- izing, and the carload rate of freight from Chi- cago at that time being five cents and the L. C. L. eight cents, as material was sold by us f. o. b. Chi- cago, the cost of material to our customer would be their Chicago price, plus the galvanizing and five cents per 100 pounds freight, which would make their cost at Elgin $2.40. The railroad company brought the cars to Chi- cago, and through some error of theirs transferred the material to another car and returned same to Youngstown. In tracing we were unable for a considerable time to locate material or get any satisfaction from the railroad company. Our cus- tomer, on account of the delay, was compelled at various times to purchase galvanized angles out of Chicago stock, prices ranging from $2.70 to $2.75 Chicago, which, plus freight charges, caused them a loss of $228.28 over what they would have been compelled to pay had the car been delivered to the galvanizing people in a reasonable time. Our customer charges us with this amount, and we filed claim against the railroad company. They held claim two and one-half years, during which 616 time we traced, but could secure no reply. They now return the claim to us, advising that inas- much as the price of angle iron advanced one-half cent per pound between the time the property should have been delivered to the galvanizing com- pany and the time it was turned over to them, and as we billed against them for value of the galvan- ized iron, they are unable to figure out that we suffer any by reason of the delay, or that they are indebted to us for any amount. Inasmuch as we had contract with the mill for a large tonnage, and as our customer had a con- tract with us for 312 tons, the advance in price during the time the car was out could in no way benefit either of us. Will you kindly advise what the measure of dam- ages should be in this case, and if we can hold the railroad company for the full value of this claim ? ' ' In my opinion of October 28, 1902, in response to an inquiry from F. T. Bentley, chairman of the traffic committee, I discussed the liability of a carrier for damages for delay in transportation. In general, where there is a delay for which the car- rier is liable, the measure of damages is the difference between the market value of the property at the time and place at which delivery should have been made and the value when actually made, whether the differ- ence in value was the result of a decline in the market or of an injury suffered by the goods in consequence of the delayed delivery. R. R. Co. v. Dickinson, 74 111., 249. R. R. Co. v. McClellan, 54 111., 56. Devereus v. Buckley, 34 Ohio St., 16. Hutchinson on Carriers (2d Ed.), Sec. 775. 5 Am. & Eng. Ency. Law (2d Ed.), 384. The carrier will not be liable for profits lost by rea- son of failure to perform a special contract, or on account of other special circumstances not apparent from the transaction itself, unless he has notice of the special contract. If the carrier is not informed of the contract, or its terms, sufficiently to know that unusual 617 loss would result from a delay, the measure of dam- ages must be determined according to the general rule. 6 Cyc. Law, 450. 5 Am. & Eng. Enc. (2d Ed.), 395. Am. Express Co. v. Jennings, 38 So., 374 (Miss., May 15, 1905). Where goods have been transported by the carrier with knowledge of the special contract between con- signor and consignee, the contract price furnishes the measure of damages. I. C. R. R. v. Cobb, 64 111., 143. And in an action to recover damages for delay, the owner may recover for any reasonable expense to which he has been put by the delay. Hutchinson on'Carriers (2d Ed), Sec. 328. 5 Am. & Eng. Enc. (2d Ed.), 386. Thus it has been held that as part of the damages, the expense incurred in a necessary search for the goods delayed may be recovered. R. R. v. Pritchard, 77 Ga., 412. Legal interest on the value of the goods has usually been considered a proper element of damages to be computed from the time when the goods should have arrived, or demand has been made. I. C. R. R. v. Haynes, 64 Miss., 604; 1 So., 765. Dunn v. R. R. Co., 68 Mo., 268. Gulf R. Co. v. Lee, 65 S. W., 54. Houston v. Jackson, 62 Tex., 209. R. R. Co. v. Truskett, 104 Fed., 728. Wolfe v. Lacey, 30 Tex., 349. 5 Am. & Eng. Enc. (2d Ed.), 379. But the contrary has been held in Illinois. I. C. R. R. Co. v. Cobb, 72 111., 148. The general rule is that a carrier can not limit its liability for delay except by a special contract with the shipper, and that in no event can it limit its liability for delay resulting from its own negligence. And in Ohio and Illinois there must be an express assent to the limitation on the part of the shipper; assent can not be implied from mere acceptance of the receipt or bill of lading containing the limitation. 618 5 Am. & Eng. Enc. (2d Ed.), 258. R. R. Co. v. Barnett, 36 Ohio St., 448. Gaines v. Union Transp. Co., 28 Ohio St., 418. In the case stated the measure of damages for the negligent delay in delivering the goods would be the difference between the market value at the time that delivery should have been made and when actually made. Theoretically, at least, I don't see how the increase in price ''could in no way benefit either of us." The Elgin party having bought the angles in the Chicago market at the advanced price, to that extent Eyerson & Son's supply was increased, and their supply satis- fied, and as the market value increased it would appear as though Eyerson & Son directly or indirectly received the benefit of such increase. It does not appear that the carrier had notice of any special contract, and in such event, as the market value increased, the carrier would ordinarily not be liable. The carrier is responsible for the expenses reasonably incurred in the necessary search for the goods. IN REFERENCE TO SUPPLY HOUSE PIRATING PARTS AND USING WITHOUT RIGHT BRANDS OR MARKS BELONGING TO THE MAKER OF ARTICLES, AND THE REDRESS THEREFOR, AND AS TO WHETHER REPAIRED GOODS OR RECONSTRUCTED ARTICLES CAN BE SOLD UNDER THEIR ORIGINAL TRADE- MARK. (Parlin & Orendorff Company, June 29, 1905.) ' ' The plow manufacturers, as well as other manu- facturers, have in the past experienced much diffi- culty on account of the supply houses pirating parts. Will you have the kindness to ask your attorney, Mr. Mayer, what the law is bearing on this subject? For instance, we may have a certain style share, branded with a certain number and with our name. Is there not some penalty for parties pirating these parts and using our brand? Please get his opinion and have the kindness to advise me." A manufacturer can not lawfully stamp upon or 619 attach to his goods the name of another manufacturer. Goodyear Rubber Co. v. Day, 22 Fed., 44. In Drake Medicine Co. v. Glesner, 68 Ohio St., 337; 67 N. E., 722 (1903), it was held that where a person has established a business and reputation for an article of traffic, under a particular name and label, whether the words constitute a trademark or not, another per- son, whether it be his own name or not, can not lawfully assume the same, with slight alterations, so as to induce the belief that his imitation is original. In Southern White Lead Co. v. Gary, 25 Fed., 125, 126, it was said : "The defendants so brand the heads of their kegs as to naturally mislead and induce persons purchasing for consumption to suppose they are purchasing the complainant's lead when they are getting an inferior article. The brand used by the defendants is so like the complainant's as to induce the public to mistake the one for the other. The defendants sell their goods to retail dealers, and it may be that such dealers are not deceived, but they sell to consumers who are or may be de- ceived. The complainant is entitled to relief if the brand used by the defendants sufficiently re- sembles the complainant's brand to be mistaken for it, and the defendants adopted their brand for the purpose of selling their kegs as the kegs of the complainant, or for the purpose of enabling retail dealers to do so, and the complainant has been in- jured by this fraud, or is likely to be injured by it." In Vitascope Co. v. U. S. Phonograph Co., 83 Fed., 30, 32, it was said that the grounds on which unfair competition in trade will be enjoined are either that the means used are dishonest, or that, by false repre- sentation or imitation of name or device, there is a tendency to create confusion in the trade, and work a fraud upon the public by inducing it to accept a spurious article. In Laivrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S., 537-549, the court said : 620 "In cases of unfair competition, fraudulent in- tent upon the part of the defendant must be proven. ' ' In 28 Am. Enc. Law (2d Ed.), 433, it is said: "Any one who deals in another's goods may use or sell them with the latter 's trademark upon them, for in such case there is no deception. The mark truthfully indicates origin or ownership." But in General Electric Co. v. Re-New Lamp Co., 121 Fed., 164 (1903), it appears that the defendant was engaged in the business of buying burned out electric lamps, among others, lamps made by the complainant, and having its trademark, cleaning and repairing them and inserting new filaments, after which they were re- sold. It was held that such process was a reconstruc- tion and not merely a repairing, and defendant's lamps were thus a different product from those of complain- ant, and not entitled to be re-sold under its trademark. In Job Printers' Union v. Kinsley, 107 111. App., 658, it is said : "Where, therefore, a party has been in the habit of stamping his goods with a particular mark or brand, so that the purchasers of his goods hay- ing that mark or brand know them to be of his manufacture, no other manufacturer has a right to adopt the same stamp, because by doing so he would be substantially representing the goods to be the manufacture of the person who first adopted the stamp, and so would or might be depriving him of the profit he might make by the sale of his goods which the purchaser intended to buy. ' ' The most usual form of civil action to secure re- dress for trademark piracy in this country is by bill in equity, praying for an injunction, discovery, account of profit and damages. The remedy at law is by an action on the case, for deceit. Hopkins on Unfair Trade, Sec. 104. Under the authorities above stated, if the supply houses are fraudulently using parts branded as if made by the Parlin & Orendorff Company, or with in- tent to deceive, or are using parts made and branded 621 by Parlin & Orendorff Company, in setting up ma- chines, intending to deceive the buyer and to be sold as a complete machine manufactured by Parlin & Orendorff, I am of the opinion that an injunction may be obtained restraining such fraudulent use and also that accounting of profits may be had and damages as- sessed. It is further to be noted that the Illinois statutes pro- vide for the protection and registration of trademarks, labels, terms, designs, etc. Any imitation of such de- signs, labels, etc., is unlawful, and any person counter- feiting or imitating such labels, etc., or knowingly sell- ing wares, etc., with such counterfeited labels, is sub- ject to a fine of not less than $100 nor more than $200, or to imprisonment for not less than three months nor more than one year, or to both fine and imprisonment. The statute also provides that an injunction may be issued in such cases, and an accounting of profits and damages awarded. It is also provided that any per- son who uses or displays the genuine label, etc., of such person, association, etc., in manner not author- ized, shall be guilty of a misdemeanor and be punished by imprisonment not less than three months nor more than one year, or by a fine of not less than $100 nor more than $200, or both. Jurisdiction is also given to justices of the peace to enforce the fines provided for in the act. 1903 Kurd's Rev. Stat. Ills., p. 1874. This act has been held constitutional and to extend to corporations the right to have registered and pro- tected their labels, designs, etc. An action may be commenced under the provisions of this act if the circumstances warrant. THE DUTY OF A COMMON CARRIES TO FURNISH PROPER EQUIPMENT AND THE ROUTING OF SHIPMENTS. (E. M. Miller & Co., June 29, 1905.) "We have yours of the 20th, inclosing commu- nication spoken of therein. The point that is most vital with us is not touched upon in this communi- cation you have from Mr. Mayer. The idea is ex- actly this : The Union Pacific, in connection with the South- ern Pacific, and the Santa Fe being the other road, are the only ones reaching southern California points, such as San Francisco, Oakland and many other points on down the State, including Los An- geles, San Diego, etc. In the past, each of these roads has taken fifty* foot furniture cars for us down that way. We have succeeded in developing a nice business down that way, but our customers demand that ship- ments be made in closed cars. Our competitors who have warerooms in Chi- cago are able to secure thirty-seven foot cars from the Chicago & Northwestern road, this equipment being made with end doors and thereby accom- modating the commodity, but we can not get that equipment. A fifty-foot furniture car is the only equipment having door space sufficiently large to allow these landaus being placed inside the car. It is not a question of the length of the car with us, but a question of getting the vehicle inside the car. But the question that we wish to know the legality of is whether either of the two railroad companies, being the only ones entering that field, should be allowed to say what equipment it will carry out there and hold the other one from carrying that equipment when each road is amply able, on ac- count of its constructions, grades, tunnels, etc., to carry the larger equipment." In my opinion of March 17, 1905, for E. M. Miller & Co., I discussed the duty of a carrier, as to supplying 50-foot cars, and the liability of a carrier for discrimi- nation in so doing. In State v. C. B. & Q. R. Co., 101 N. W., 23 (Neb. Oct., 1904), it was held to quote the syllabus, that : "A common carrier of goods is required to pro- vide facilities for and to receive and ship goods 623 tendered at its stations on payment or tender of the usual tariff rates, and has no right to discrim- inate or favor one shipper over another in rates or facilities, but this general principle is subject to the modification that, if the carrier has fur- nished itself with cars sufficient to carry the freight which may reasonably .be expected to be offered for carriage, taking into consideration the fact that at certain seasons more cars are needed, it has exercised due diligence in that regard, and where, through causes which are not within its control, it can not supply the cars temporarily made necessary by unusual demand therefor, it is entitled to apportion the same in a fair and equi- table manner among its patrons and can not be compelled to provide one shipper with cars to the exclusion of others." The Interstate Commerce Act, Sec. 5, provides : ' * That it shall be unlawful for any common car- rier subject to the provisions of this act to enter into any contract, agreement or combination with any other common carrier or carriers for the pool- ing of freights of different and competing rail- roads, or to divide between them the aggregate or net proceeds of the earnings of such railroad, or any portion thereof; and in any case of an agree- ment for the pooling of freights, as aforesaid, each day of its continuance shall be deemed a separate offense. ' ' The statute contemplates two methods of pooling, both of which are prohibited. First, a physical pool, which is a distribution of property by the carrier of- fered for transportation among different and compet- ing railroads in percentages previously agreed upon; and second, a money pool, which is a division of earn- ings. In re Pooling Freights, 115 Fed., 588 (1902). The Sherman Act provides: "Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or 624 with foreign nations, is hereby declared to be illegal." Congress has power in legislating upon interstate commerce to declare that no contract, agreement or combination shall be legal which shall restrain trade and commerce by shutting out the operation of the general law of competition. U. 8. v. Joint Traffic Assn., 171 U. S., 505. U. S. v. Trans-Missouri Freight Assn., 166 U. S., 295. Northern Securities Co. v. U. S., 193 U. S., 197. And in the "Orange Routing Cases," Interstate Commerce Com. v. South. Pac. R. Co., 132 Fed., 829, 846 (Sept., 1904), it is said: 4 'After careful consideration of the subject I am of the opinion that any contract, agreement or combination between different competing rail- roads, whereby the volume or quantity of freights each or any shall receive for transportation is to be determined by or through any conventional means or agency which was intended to and does suppress competition, either in rate or service or competition directly addressed to shippers, is a traffic pool within the meaning of section 5 of the commerce act, and that the routing contract here in controversy does so apportion freights among the defendants' Eastern connections and is essen- tially such a pool. ' ' I am inclined to the opinion that the understanding or agreement of the carriers referred to is not illegal, as long as no unjust discrimination is practiced and all shippers are treated alike, and as long as there is no pooling of earnings on this business. But the carrier, if it accepts the freight offered, must provide suitable facilities for its transportation, and can be compelled so to do. Whether particular facilities are sufficient, is a question of fact to be de- termined in an appropriate proceeding. NOTE: See opinion of Nov. 7, 1906 (John E. Burns Lumber Co.) in reference to the right of a carrier to route shipments as it desires. Ed. 625 DEMURRAGE ON GOODS DETAINED ON ACCOUNT OF AN EM- BARGO. (Block-Pollak Iron Company, June 29, 1905.) "We would like to have your opinion in the fol- lowing matter. We have made a sale of several carloads of material to the International Har- vester Company. This material was purchased by this company from the Wabash Railroad at St. Louis, and the proper shipping directions were furnished said railroad company to consign the material to the International Harvester Company via the Chicago & Northwestern Railroad from Chicago. The agent of the Wabash Railroad Company, after receiving our reconsigning notice on these cars, writes us the following letter under date of April 6th : 'I return herewith your order on cars Nos. 43184 P. M. and No. 2278 I. C., which you are re- consigning to the Deering division of the Inter- national Harvester Company. I am unable to accept these orders on account of an embargo being placed on the International Harvester Com- pany, Deering plant, by the Chicago & North- western Railroad. Car No. 43184 is held subject to Car Service Association rules. The other car has not yet arrived. When it does we shall be obliged to hold it until the embargo is raised or we are given other disposition. (Signed) W. EICKE, Agent.' In a case of this kind we want your opinion as to who is liable for the car service that may accrue on such cars. ' ' Rule II of the Chicago Car Service Association Rules (presumably the same at St. Louis) provides: "When any consignee is unable to receive freight or to unload cars, and for that reason the delivering line refuses to receive cars from con- 626 necting lines consigned to such consignee, the agent of such connecting line or lines holding cars for such consignee shall immediately notify either the consignor or consignee of the cars so held and of the inability to forward or deliver the same, and shall charge car service if delivery cannot be effected within the time allowed for re- consignment. ' ' Rule 2 (C) provides: "Forty-eight hours will be allowed on storage tracks of railroads bringing cars into territory of the association for the placing of reconsignment or switching orders, but this will not apply when cars are moved from one delivery tract to an- other for accommodation of consignees." As far as the demurrage rules have been passed upon by the courts, they have been generally held reasonable. Under these rules the Block-Pollak Iron Company is liable to the carrier for the demurrage charges accruing after forty-eight hours, the time allowed for re-consignment. If the goods had not been loaded on cars and had been offered to the Wa- bash Railroad directed to the Deering Division of the Harvester Company, the railroad would then have notified the consignor of the embargo and car service charges could have been avoided. But where the goods are stored in cars, the carrier is entitled to demurrage. In my opinion of June 24, 1905, to Reid, Murdoch & Co., I discussed the liability of consignees for de- murrage charges, to which opinion I refer. THE EFFECT OF A CONTRACT THAT RESERVES TITLE IN THE VENDOR UNTIL PAYMENT UPON A SALE F. O. B. A CERTAIN POINT, THERE TO BE LOADED IN CAR WITH OTHER GOODS. (Rock Island Plow Company, July 12, 1905.) "We enclose herewith a copy of our form of contract of sale, filled out with reference to the freight delivery, the assignment of exclusive ter- ritory and the time and manner of shipment of 627 goods bought. You will perceive it is a proposal to make Minneapolis the point of delivery and that the goods are to be loaded in a car with mixed goods from other wholesale houses in Min- neapolis. It is the common practice in making these joint shipments to await directions from the buyer, who will select the one house having the largest order to take charge of the shipment and to de- liver the car when loaded with the several lots to the railway company, billing it forward in its name as shipper. The other houses may receive notice of the time of shipment and the place of delivery in Minneapolis to load from the buyer or from the house in charge of the shipment. It is with reference to the event that the seller receives no notice to deliver goods to ship that the goods are not called for that the contract is ignored with respect to the agreed time and man- ner of shipping that we desire an opinion from Mr. Mayer. In common usage, such a contract amounts to nothing more than an option to the buyer. He may take the goods or not, as it may suit his pleasure. He has reserved a territory of some value to the seller, which he may use to the advan- tage of competing lines, and the time has passed when the seller may be able to make other arrange- ments for a representation. From the legal aspects of the case, under these circumstances does the seller hold any right or privilege to make the shipment, say, by local freight, at the buyer's cost for transportation charges from Minneapolis? Having received no notice to ship and having knowledge of the for- warding of the car without his goods, could he for- ward the goods by a route of his own selection, and, if need be, sue under the contract and recover the debt thus incurred! At any large distributing points for implements, as Minneapolis, Omaha, etc., such arrangements 628 for joint shipment are very necessary to meet the convenience of buyers who do not order separate lines in car lots. In most cases the contracts and arrangements are observed in good faith by both parties, but it is in the case of the exception that we wish to know if a contract of this kind has any binding force." The contract referred to provides in part as fol- lows: "Dated at Henning, Minn., January 20, 1905. Rock Island Plow Company, Hock Island, III. : Please ship to us the following goods for our account, subject to our risk, delivered to the car- rier company f. o. b. Minneapolis, Minn., on or about March 15, 1905, or as soon as possible thereafter (or you may ship earlier at your option, provided time of payment is not thereby changed). To be loaded in car with other goods at Minne- apolis." This is a contract of sale of goods, f. o. b. Minne- apolis, to be loaded in car with other goods at Minne- apolis. The meaning and effect of the latter clause will be as evidenced by custom and usage. It appears that the practice is for the buyer to designate some firm in Minneapolis from whom he has bought other goods, and direct that firm to notify the Bock Island Plow Company of the time when and place where the car will be loaded. Where a seller agreed to deliver to the buyer ' ' f .o. b. cars" at the place where transit is to begin, the impli- cation is that he is to deliver the cars for loading at the f. o. b. point, free of expense to the consignee, and such meaning cannot be changed without clear evi- dence of a custom to the contrary known to both par- ties to the transaction at the time of making the con- tract. Vogt v. SUenebeck, 100 N. W., 820 (Wis., 1904). But in the present contract, it is also provided : "The title to and ownership of all goods shipped under this contract shall remain vested in party 629 of the second part until the price thereof shall be paid in cash, and until all notes given therefor and to be given under this contract are paid, and party of the second part shall be entitled to the pos- session of the same whenever they, the said party of the second part, feel insecure, or the party of the first part may become insolvent, or bankrupt, but nothing in this contract shall be deemed as releasing party of the first part from their obliga- tion to pay for said goods and all the notes hereby contemplated. ' ' Such a condition reserves titles in the seller as against the buyer. Page v. Urick, 31 Wash., 601, 72 Pac., 454. Hufford v. Akers, 52 W. Va., 21. The effect of such a contract, therefore, is to reserve as against the vendee, title in the vendor until pay- ment, and the condition as to delivery f. o. b. is one of the conditions of the contract. By directing the Minneapolis firm to notify the Plow Company of the time and place of shipment the vendee made the Min- neapolis firm his agent, and he cannot take advantage of their default. Upon learning of the failure to obtain notice of the loading of the car, the Plow Company should have notified the vendee that it held the goods subject to his orders and risk. The vendee, if he then failed to give directions, would be liable for breach of contract, and for any damages not speculative, that could be proved. WHETHER A LUMBER BROKER IS THE AGENT OF HIS PRIN- CIPAL SO AS TO BIND THE LATTER BY HIS CONTRACTS. (D. S. Pate Lumber Company, July 12, 1905.) "For the past two years we have been doing some business with the lumber dealers at Salt Lake City, Utah. The trade there does not use much yellow pine, and it has been the custom for two or more of the dealers to get together and make up an order for a carload. This business has 630 been secured for us by Frank L. King & Co., of Salt Lake City, who are rated as wholesalers with a capital of $50,000 to $75,000. In this matter, however, they have acted as brokers, pure and simple, and we have paid them a selling commis- sion of $10 per car. We have endeavored to keep them advised of the market changes, but have never obligated ourselves to do so. Furthermore, they have never been under any obligations to solicit yellow pine business for us alone. They have been at liberty to sell for any one else, but whether or not they have done so we do not know. About six months ago King & Co. mailed us an order for three cars of yellow pine finish for the Utah Lumber Company at prices authorized by us about sixty days previous. The same day that they mailed this order to us we sent them a sched- ule of prices, which were $3.00 to $4.00 higher than the prices of sixty days previous. On receipt of the Utah Lumber Co. 's order we immediately advised both them and Frank King & Co. that we would not be able to accept and fill the order unless they consented to advance the prices to the new basis. In reply to this the Utah Lumber Company offered to stand half of the advance, but this propo- sition was declined. Several daj^s later they sent us a bill for $110, advising us that they had placed their order with other parties at the lowest price offered, and they were charging us with the ad- vance which they had to pay. We, of course, objected to this and stated to them that King & Co. were brokers, pure and simple, and in no sense our agents ; that an order taken by them was not bind- ing on us until it was accepted by this office. They still maintain their stand, however, and as they owe us $160 on an earlier car they will undoubtedly hold out the $110 when they remit us. The whole question hinges on whether or not King & Co. are our agents. We contend they are not. We would be pleased to have Mr. Levy Mayer's legal opinion." 631 The rights of third persons against the principal for the acts and contracts of the broker rest upon the same principles as in other cases of agency. Where the broker, acting within the limts of his authority, has bound his principal to third persons, they are entitled to the same rights and remedies against him as though the same act had been done by him in person. Where, on the other hand, the broker has exceeded his authority his principal is not bound, nor can the broker bind him, in opposition to express instructions, by pursuing his usual course of dealing. Mechem on Agency, Sec. 985. In the case of Clark v. Gumming, 77 Ga., 64, it was held that where definite instructions are given by the principal to the broker to sell goods for him at a cer- tain specified price, for a certain time and day only, this will not authorize the broker to contract and sell the same kind of goods for his principal at a different and subsequent time for the same price; his power is limited by and ceases with his instructions; and this is so, even though it had been usual in the course of dealings between the broker and his principal for the broker to continue to sell at the prices quoted last by the principal. In that case a contract had been made by the broker for the sale of peanuts against the ex- press instructions and authority of the principal, and it was held that the principal could not be bound. The authority of the broker would depend in any case largely upon whether he was authorized either by the principal or by custom of trade, of which the parties had knowledge, to sell on quotations last named by his principal until new quotations or prices should be furnished by his principal. Like other agents, a broker is bound to obey his in- structions, and he will be liable to his principal for a failure to do so; and no usage or custom will author- ize a departure from positive instructions. 4 Am. Eng. Enc. (2d ed.), 968. A principal is liable to a third party for all contracts entered into by his broker within the actual scope of his author itv. He is also liable if the contracts are 632 within the apparent scope of the agent's authority, but such apparent scope may be limited by direct in- structions if the third party has knowledge thereof. The principal is also liable if the contract is author- ized by the usage and custom of the particular trade in which the broker is engaged, and with reference to which the principal and agent has contracted. But, subject to the above limitations, the principal is not bound where the broker exceeds his authority. The authority of the broker can not be limited by private instructions from his principal not known to the par- ties with whom he deals, if the contract is within the apparent scope of the agent 's -authority ; and the prin- cipal will be bound by contracts made by his broker within the apparent scope of his employment, not- withstanding such contracts be made contrary to the principal's express instructions, unless such instruc- tions are known to the other party. 4 Am. Eng. Enc. (2d. ed.), 987, and cases cited. Any one dealing with a person whom he knows to be a broker will be presumed to know, from the nature of a broker's business, that he is acting as agent for some third person. Baxter v. Duren, 29 Maine, 434. The liability of the Pate Lumber Company in this particular case will depend upon the terms of the au- thorization given to Frank L. King & Co., either by express direction or by holding them out as having certain authority, or by ratification of previous acts. If King & Co. exceeded their express instructions that the prices quoted were for a certain time, or subject to further change without notice, I am of opinion that then the Pate Lumber Company would not be re- sponsible. The liability in any event depends upon the extent and terms of the authority of King & Co. If King & Co. were holding themselves out to the world as the general agents of the Pate Lumber Company, as having authority to accept orders for the lumber company, and the lumber company had knowledge of and acquiesced in these conditions, it would be bound by the acts of King & Co. The question resolves it- 633 self into one of fact to be determined in accordance with the foregoing principles of law. If all of the facts are contained in the question propounded, and there are no qualifying facts of any kind, I think the chances preponderate from a purely legal standpoint in favor of the Pate Lumber Company. It should be borne in mind, however, that the suit, if litigation en- sues, will be carried on at a distance from home, where the absent plaintiff is likely to be at a disadvantage before a jury. It is a case for compromise. The lum- ber company ought in its contracts with its broker to explicitly, in writing, define the broker's powers. THE LIABILITY OF A BOILER MANUFACTURER FOR PERSONAL INJURIES SUSTAINED BY A SUB-CONTRACTOR OR HIS EM- PLOYES DURING THE ERECTION OF A BOILER BY THE MANUFACTURER. (Kewanee Boiler Company, July 12, 1905.) "We are a corporation organized under the general laws of Illinois. Part of our business is the making and selling of boilers, and in some cases we sell these boilers, set up complete at the points where they are to be used, we paying the freight from the factory, delivering the boilers on the ground, setting them up in brickwork and making pipe connections to the engines and smoke connections to the chimneys. In most cases we sublet all of the work of taking the boilers from cars at destination, setting them up in brickwork, putting up the pipework and smoke connections. The question arises with us, are we liable in any way for personal injuries that may be sustained by the subcontractors or. their employes during the erection of the work? Another point: In case we sublet the putting up of the steam pipe work and connections, and the subcontractor uses material that is not strong enough to withstand the steam pressure to which the boiler is guaranteed by us, and after the work is completed some part of this pipe work gives way and does personal injury to an employe of the purchaser of the boiler, or to an employe of the contractor for the pipe work, are we in any way liable for such personal injury? If we are liable in either of the cases mentioned, what form of contract can we make with the purchaser of the boiler, or with the subcontractor for any part of the work, which will relieve us from such re- sponsibility?" It is the general rule that an employer is not an- swerable for the negligence of an independent con- tractor, if the employer uses due care in selecting the independent contractor, or the work contracted for does not of itself create a nuisance. Conners v. Hennessey, 112 Mass., 96. Brown v. McLeish, 71 Iowa, 381. R. R. v. Farver, 111 Ind., 195. Boswell v. Laird, 8 Cal., 469. Cuff v. R. R. Co., 35 N. J. L., 17. Engel v. Eureka Club, 137 N. Y., 100. Reed v. Allegheny, 79 Pa., 300. And where one has engaged another person to exe- cute an undertaking and the latter is to select and employ his own assistants, and the employer does not retain or exercise any control over the manner in which the work is done, the employer, is not liable, in an action by a third person, for injuries sustained from the negligence of the assistants employed by the sub- contractor in performing the work. Prairie State Loan & Trust Co. v. Doig, 70 111., 52. Stale v. Johnson, 80 111., 185. Wray v. Evans, 80 Pa., 102. King v. R. R. Co., 66 N. Y., 181. Where the wrongful acts complained of were those of the servants of such sub-contractor, who are not in any way under control of the employer, the latter is not liable. Callahan v. R. R. Co., 23 Iowa, 562. And an employe of a sub-contractor can not recover 635 from the contractor for personal injuries caused bj- his own employer's negligence, if the contractor re- tained no power of directing and controlling the work. West v. R. R. Co., 63 111., 545. Mohr v. McKenzie, 60 111. App., 575. In Construction Co. v. Housen, 176 111., 100, it was held that a building contractor, who lets a portion of the work to a sub-contractor, does not, by retaining the power to inspect the work to see that it is honestly performed, become the master of the sub-contractor's employes, so as to be liable for their negligent acts. The court there said: "He is the master who has the choice, control and direction of the servants. The master re- mains liable to strangers for the negligence of his servants, unless he abandons their control to the hirer. Control of servants does not exist, unless the hirer has the right to discharge them and em- ploy others in their places. The doctrine of re- spondeat superior is applicable where the person sought to be charged has the right to control the action of the person committing the injury. It follows that the right to control the negligent serv- ant is the test by which it is to be determined whether the relation of master and servant exists ; and, inasmuch as the right to control involves the power to discharge, the relation of master and servant will not exist unless the power to discharge exists." The rules of law are well settled as above stated. The liability depends, in nearly every case, upon whether the facts and circumstances are such as to make the person to whom the contract is let an independent con- tractor. This must be determined from the contract of employment and from the extent of the control exercised by the employer over the contractor. If the employer assumes control and directs the work, the case is not within the rule as to independent contractors and the employer would be liable. In Brackett v. LubJce, 4 Allen (Mass.), 134, 140, it is said: 636 "The distinction on which all the cases turn is this : If the person employed to do the work car- ries on an independent employment, and acts in pursuance of a contract with his employer by which he has agreed to work on certain specified terms, in a particular manner and for a stipulated price, then the employer is not liable. The rela- tion of master and servant does not subsist between the parties, but only that of contractor and con- tractee. The power of directing and controlling the work is parted with by the employer and given to the contractor. But, on the other hand, if work is done under a general employer, and is to be performed for a reasonable compensation or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it, if he deems it necessary or expedient. ' ' In the well known case of Losee v. Clote, 51 N. Y., 494, it was held that the manufacturer and vendor of a steam boiler is liable only to the purchaser for de- fective material or for any want of care and skill in its construction; and, if after delivery and acceptance by the purchaser, and while in use by him, an explosion occurs in consequence of such defective construction, to the injury of a third person, the latter has no cause of action, because of such injury, against the manufac- turer. The present case must be determined in accordance with the foregoing principles. If the work is sub-let to a sub-contractor, and there is no interference, direc- tion or control by the boiler company over the construc- tion work, other than the mere inspection of the work, I am of opinion that it is not liable for the injuries referred to. It is highly advisable, however, that the contract should clearly specify the exact rights and duties (and their limitations) of the parties. If, as a matter of law, the boiler company would be liable to strangers, i. e., persons other than employes of the sub-contractor, then no contract can be drawn between 637 the boiler company and a sub-contractor by which the boiler company can be released from such liability to a stranger, though the contract could legally provide for indemnity by the sub-contractor to the boiler com- pany. ANSWERS TO MANY QUESTIONS PROPOUNDED BY THE CENSUS BUREAU IN ITS CENSUS OF MANUFACTURES CAN NOT LEGALLY BE COMPELLED. (Morden Frog & Crossing Works, July 12, 1905.) "Referring to the opinions rendered by Mr. Levy Mayer, February 4 and March 22 last, in regard to answers to be made to the Government's Census Bureau, would be pleased to have Mr. Mayer state whether he does not consider the questions in the schedule pertaining to the general expenses and the profits derived in the conduct of one's business as private matters and not of a gen- eral character, and which the general public are not interested in, and whether a corporation can be compelled by the census law to answer such questions which seem to be purely a matter of interest to the stockholders of each corporation. I am also advised that there has been a decision by the United States Supreme Court in suit brought against a manufacturer of Cleveland, Ohio, by which he was compelled to answer all questions of the schedule. If such is the case, will be pleased to have Mr. Mayer quote therefrom, and oblige." I am not aware of any opinion that has been handed down by the United States Supreme Court in relation to census schedules. The case of United States v. Mitchell, 58 Fed., 993 (1893), referred to and quoted from in my census opin- ion of Feb. 4, 1905, was a decision of the United States District Court of Ohio. The facts of that case show that Jethro G. Mitchell was the Treasurer of the Mitchell and Rowland Lumber Company, a corporation organized under the laws of Ohio. Mitchell was 638 indicted for refusing to answer questions put to him by a census official in regard to the business of his corporation. A demurrer to the indictment was sus- tained, and the indictment quashed. The court held that : "The provision of the act of July 8, 1892, im- posing a penalty for refusal, to answer questions upon officers of corporations engaged in pro- ductive industry, from which or from whom an- swers 'are herein required,' is ineffective, because there is no provision, in that or any other act, re- quiring such corporation or their officers to answer the questions." I am of the opinion that answer to many questions propounded by the Census Bureau would disclose pri- vate business, and that the officers of the corporation can not legally be compelled to disclose such informa- tion. (See my opinion of Feb. 4, 1905.) But the facts in each instance must determine whether the answers would or would not involve an unnecessary disclosure of private business. I can readily conceive that in many instances the answers as to the general expenses and profits of one's business would involve such un- necessary disclosure. I would, however, advise manu- facturers to answer all questions that they can con- sistently answer, on account of the great value of the statistics of manufacturers obtained by the Bureau of the Census, and also for the reasons set forth in the letter of March 22, 1905, to the Illinois Manufacturers 7 Association. IN WHOM IS THE TITLE TO GOODS IN TRANSIT WHEN SOLD "COAST FREIGHT ALLOWED" AND AS TO THE EFFECT OF SALES F. O. B. CERTAIN POINTS? (Chicago Varnish Company, July 12, 1905.) ; ' On March 23d we loaded into a car shipped by Bradley & Vrooman Company, of this city, a bill of goods for a house in Seattle, Wash. The terms of the shipment, in so far as the delivery was con- cerned, were 'coast freights allowed.' When the 639 car reached St. Paul the Bradley & Vrooman Com- pany took out an attachment against our goods and others in order to secure payment of an old claim which the consignee owed them. We would like the opinion of your legal depart- ment as to the ownership of these goods, which were in transit at the time. The Bradley & Vroo- man Company state that their goods which were in this car were consigned. ' ' In my opinion of October 24, 1903, in response to an inquiry from the American Steel & Wire Company, and of March 19, 1904, in response to an inquiry from S. A. Maxwell & Co., I discussed the effect of similar phrases in reference to their reserving of title in the consignor. I refer to these opinions and the cases there cited. In my opinion of March 19, 1904, 1 said : ' ' On October 24, 1903, I stated, in an opinion to American Steel & Wire Company, that in the absence of other qualifying circumstances the pre- payment of freight by the consignor constituted the carrier the agent of the consignor, and that the title to the goods shipped did not pass until delivery to the consignee. The allowance of freight by the consignor to be deducted from the purchase price is the same in legal effect as a pre- payment by the consignor. I also stated in that opinion that whether the title to the goods passes upon the delivery to the carrier is primarily a question of intention to be determined from the contract and from all the facts and circumstances of the case, and that, as a general rule, there being no limiting circumstances, delivery to a carrier is a delivery to the consignee, the carrier being con- sidered as the agent of the consignee." In 24 Am. & Eng. Enc. Law (2d Ed.), 1071, it is said : " Where the duty of the seller is to send the goods to the buyer, the general rule is that deliv- ery to a common carrier is equivalent to a delivery to the buyer himself, and particularly is this so if the carrier to whom the delivery is made has been 640 designated by the buyer ; the carrier is deemed the agent of the buyer and not the agent of the seller. Such delivery effects a transfer of title and is suf- ficient performance of the contract to enable the seller to maintain an action for goods sold and de- livered, even though the seller pays the freight, though in controverted cases the payment of freight may have an important bearing in deter- mining whose agent the carrier is." If a point specified for delivery f. o. b. is the final point of destination, or an intermediate point, the de- livery to the carrier at the initial point of shipment does not ordinarily operate to pass the title in the goods to the vendee, but the vendor still retains the title and risk of transportation to the f. o. b. point designated in the contract. In Dannemiller v. Kirkpatrick, 201 Pa., 218, 50 Atl., 928, the loss of a carload of coffee was involved. The coffee was shipped from Canton, Ohio, and consigned to vendees at Pittsburg under a contract which recited that the vendors agreed "to bill 'Cordova' coffee at the same price f. o. b. Pittsburg" as certain other com- panies, and the invoice sent to the vendees at the time of shipment contained the following: ''All goods delivered to the carriers in good order. Claims for damage thereafter, or break- age, must be made against the transportation com- pany delivering the goods." It was held that to "bill" coffee f. o. b. was not synonymous with the expression to deliver coffee f. o. b., and that the language used implied that the cost of the coffee at Pittsburg, including the expense of placing it there, should not exceed the price of coffee sold by competing firms at that point; and, while it was some evidence to the effect that delivery was to be at Pittsburg, it was not conclusive, but, with the other evidence in the case, presented a question of fact to be determined by the jury. The court said in this case: "If it is the intention of the parties, and it so appears from their contract, that delivery is to 641 take place at the destination of the property, and that the title is to remain in the consignor until that time, then delivery to the carrier does not divest the title of the vendor to the property, nor pass it to the purchaser, until it reaches its desti- nation, and the hazards of transportation are at the risk of the consignor. It, therefore, becomes a question, in cases of this character, as to where the delivery of the goods is to be made and when the title is to pass to the purchaser. If the facts are not in dispute, it is a question of law for the court, but if the evidence is conflicting the ques- tion must be determined by a jury." Other authorities are to the same effect: Niemeyer v. R. R. Co., 54 Neb., 321 ; 74 N. W., 670. Devine v. Edwards, 101 111., 138. Brewing Ass'n v. Tripp, 6 Kan. App., 730; 50 Pac., 956. Lint v. Woodhall, 113 Mass., 391. Murray v. Nichols, 11 N. Y. S., 734. In Erwin v. Harris, 87 Ga., 333, 13 S. E., 513, the court says that if the vendor is not satisfied of the solvency of the purchaser, or is doubtful thereof, or wished to retain title in himself, he may take a bill of lading from the carrier to his own order, and when he does this it is evident that he does not part with the title to the goods shipped, but retains the same until the draft which he sends with the bill of lading to a bank at point of destination for collection is accepted or paid, and that, when the title is thus reserved by the vendor, the carrier is his agent and not the agent of the consignee, and that risk is the consignor's and not the consignee's. The contract in the present case contained the phrase, "Coast freights allowed." It is not clear whether this clause solely relates to the delivery of the goods, which would probably bring the case within the scope of my former opinion of October 24, 1903, to the American Steel & Wire Co., above referred to, or 642 whether it relates to the price of the goods or the terms of payment. In the absence of other facts and circumstances, or other conditions of the contract, than those presented to me, I am of the opinion that the clause in question is merely one of the terms of payment, and does not show an intention on the part of the vendor to reserve the title to the goods in himself. It is similar in effect to a sale on credit and an allowance of discount from the price as quoted to the amount of the freight to the Coast, which is to be deducted by the vendee from the purchase price. This would bring the case within the scope of my opinion of March 24, 1904, heretofore men- tioned. The title to the goods, therefore, vested in the consignee upon delivery to the carrier, and they could be lawfully attached by any creditor of such consignee. THE FOREIGN CORPORATION LAWS OF CALIFORNIA, OHIO AND PENNSYLVANIA. (Kellogg Switchboard & Supply Company, July 12, 1905.) "We have branch houses in Los Angeles, Cleve- land & Philadelphia, where we maintain a stock and sell directly from same. We would be pleased to know if, under the laws of these States, we are subject to any license fee. All large orders and contracts are subject to the approval of the Chi- cago office and are shipped from that point. We have a resident agent in New York City who keeps on hand only a sample line of apparatus. His orders are sent to the Chicago office, subject to ap- proval, and shipments are all made from that point. In these cases are we 'doing business' under the laws of the State of New York, and, if so, are we liable to a license fee there?" On the facts as above set forth, the Kellogg Com- pany is not doing business in New York, and, there- fore, need not comply with the foreign corporation laws of that State. 643 A different question is presented in reference to the States of California, Ohio and Pennsylvania. The maintenance of a stock of goods in the places named, and the making of direct sales from such stock, con- stitutes " doing business" in the particular States and subjects the corporation to the operation of the foreign corporation laws. The laws of California provide inter alia (act March 21, 1905) : 1 l Every corporation other than those created by or under the laws of this State must, within forty days from the time it commences to do business therein, file in the office of the Secretary of State a designation of some persons residing within the State upon whom process issued by authority of or under any law of this State may be served. A copy of such designation, duly certified by the Secretary of State, is sufficient evidence of such appointment. Such process may be served on the person so designated, or, in the event that no such person is designated, then on the Secretary of State, and the service is a valid service on such corporation. ' ' 4 'Every corporation which complies with the provisions of this chapter is thereafter entitled to the benefits of the laws of this State limiting the time for the commencement of civil actions, but no corporation not created by or under the laws of this State is entitled to the benefit thereof, nor can any such corporation maintain or defend an action or proceeding in any court of this State until the corporation has complied with the pro- visions of the preceding section. In any action or proceeding instituted against any body styled as a corporation, but not created by nor under the laws of this State, evidence that such body has acted as a corporation, or employed methods usually employed by corporations, must be re- ceived by the court for the purpose of proving the existence of such corporation, the sufficiency of such evidence to be determined by the court with 644 like effect as in other cases. Every corporation which has complied with the laws then in force, requiring it to make and file a designation of the person upon whom process against it may be served, need not make or file any further designa- tion. Any designation heretofore or hereafter made may be revoked by the filing by the corpora- tion with the secretary of State of a writing stat- ing such revocation. Within forty days after the death or removal from the State of any person designated by the corporation, or after the revoca- tion of the designation, the corporation must make a new designation or be subject to the provisions and penalties of this chapter." " Every corporation organized under the laws of another State, Territory, or of a foreign coun- try, which is now doing business in this State, or is maintaining an office herein, or which shall hereafter do business in this State or maintain an office herein, or which shall enter this State for the purpose of doing business herein, must file in the office of the Secretary of State of the State of California a certified copy of its articles of incor- poration, or of its charter, or of the statute or statutes, or legislature, or executive, or govern- mental act or acts creating it, in cases where it has been created by charter, or statute, or legis- lative, or executive or governmental act, and a certified copy thereof, duly certified by the Secre- tary of State of this State, in the office of the county clerk of the county where its principal place of business is located, and also where such corporation owns property. For filing and issuing a certified copy as re- quired in section four hundred and eight of this code, corporations formed under the laws of an- other State, or of a Territory, or of a foreign country, must pay the same fees as are paid by corporations formed under the laws of this State. Every corporation organized under the laws of another State, Territory, or of a foreign country, 645 which shall neglect or fail, within ninety days from the taking effect of this section, to comply with the conditions of sections four hundred and eight and four hundred and nine of this code, shall be subject to a fine of not less than five hundred dollars, to be recovered in any court of competent jurisdiction ; and it is hereby made the duty of the Secretary of State, as he may be advised that cor- porations are doing business in contravention of sections four hundred and eight and four hundred and nine of this code, to report the fact to the governor, who shall instruct the district attorney of the county wherein such corporation has its principal place of business, or the attorney-gen- eral of the State, or both, as soon as practicable, to institute proceedings to recover the fine pro- vided for in this section, and the amount so recov- ered must be paid into the State treasury to the credit of the general fund of the State; in addi- tion to which penalty, no foreign corporation which shall fail to comply with sections four hun- dred and eight and four hundred and nine of this code can maintain any suit or action in any of the courts of this state until it has complied with said sections; provided, that any such corporation which, prior to the 8th day of March, 1901, shall have complied with the provisions of the act en- titled ' An act to amend l i An act in relation to for- eign corporations," approved April 1, 1872, ap- proved March 17, 1899, is exempted from the pro- visions of this section and the two sections next preceding.' " The laws of Ohio provide inter-alia (act April 27, 1904) : "Sec. 148c. Every foreign corporation, incor- porated for purposes of profit, now or hereafter doing business in this State, and owning or using a part or all of its capital or plant in this State, shall, within thirty days after the passage of this act, or, in case of a company hereafter coming into this State, then before it proceeds to do any business in this State, under the oath of the presi- dent, secretary, treasurer, superintendent or man- aging agent in this State of such corporation, make and file with the secretary of State a state- ment, in such form as the secretary of State may prescribe, containing the following facts : 1. The number of shares of authorized capital stock of the company, and the par value of each share. 2. The name and location of the office or officers of the company in Ohio, and the name and ad- dress of the officers or agents of the company in charge of its business in Ohio. 3. The value of the property owned and used by the company in Ohio, where situate, and the value of the property of the company owned and used outside of Ohio. 4. The proportion of the capital stock of the company which is represented by property owned and used (and) by business transacted in Ohio. From the facts thus reported, and any other facts coming to his knowledge bearing upon the question, the secretary of State shall determine the proportion of the capital stock of the company represented by its property and business in Ohio, and shall charge and collect from the company for the privilege of exercising its franchises in Ohio one-tenth of one per cent, upon the proportion of the authorized capital stock of the corporation, represented by property owned and used and busi- ness transacted in Ohio, being the same fee re- quired to be paid by corporations formed under the laws of Ohio. Upon the payment of the said amount, the secretary of State shall issue to the foreign corporation a certificate that such cor- poration has complied with the laws of Ohio, and is authorized to do business therein, stating the amount of its entire capital and the proportion of which is represented in Ohio. Provided, this sec- tion shall not apply to foreign insurance, bank- ing, savings and loan, or building and loan com- 647 panies, or to foreign, co-operative or investment companies organized to sell certificates or deben- tures on the installment or partial payment plan, or companies doing business on the service divi- dend plan, who have deposited with the treasury of the State of Ohio security satisfactory to him of the value of not less than twenty-five thousand dollars, and who shall annually thereafter deposit securities equal in value to ten per cent, of the gross receipts on the amount of business done in Ohio for the preceding year, until the whole amount so deposited has reached the sum of one hundred thousand dollars, for the protection of the holders of said certificates or deben- tures, or to express, telegraph, telephone, railroad, sleeping car, transportation or other corporations engaged in Ohio in interstate commerce business; or to foreign corporations entirely non-resident, soliciting business, or mak- ing sales, in this State by correspondence or by traveling salesmen. Any foreign corporation shall have the right, on application, to be heard by the Secretary of State, touching the matter of the determination of the proportion of its capital stock represented by property used and business done in Ohio. Any corporation aggrieved by the decision of the Secretary of State may, within ten days, appeal to the auditor of State, the treasurer of State and the attorney-general, whose decision in the matter shall be final. Every foreign cor- poration subject to the provisions of this section which shall neglect or fail to comply with its requirements shall be subject to a penalty of one thousand dollars, and an additional penalty of one thousand dollars (for) every month that it con- tinues to transact any business in Ohio, without complying with the requirements of this section, to be recovered by action in the name of the State, and on collection, paid into the State treasury to the credit of the general revenue fund. The attorney-general, on the request of the secretary 648 of State, shall institute such action in the court of common pleas of Franklin County, or in any county in which such corporation has an office or place of business as he prefers. The governor and secretary of State, on good cause shown, may, in their discretion, remit the penalty, or any part thereof, prescribed in this section. No foreign corporations subject to the provisions of this sec- tion shall maintain any action in this State upon any contract made by it in this State after the time fixed by this act for compliance by such cor- poration with its requirements, until it shall have complied with the requirements of this act, and procured the requisite certificate from the secre- tary of State. Every corporation which has filed its statement and paid the privilege tax under this section, and which thereafter shall increase the proportion of its capital stock, represented by property used and business done in Ohio, shall, within thirty days after such increase, file an addi- tional statement with the secretary of State, and pay a fee of one-tenth of one per cent, upon the amount of its increase of its capital stock, repre- sented by property owned or business done in Ohio. All fees collected by the secretary of State under this section shall be paid by him into the State treasury to the credit of the general revenue fund. Every corporation subject to the provi- sions of this section which complies with its re- quirements, shall not be subject to process of at- tachment under section 5521, Revised Statutes, or any law of Ohio upon the ground that it is a foreign corporation or a non-resident of this State. No person shall be required to list for tax- ation any share or shares of the capital stock of any Ohio corporation. No person shall be re- quired to list for taxation any share or shares of the capital stock of any foreign corporation, the property of which is taxed in the name of such company in Ohio, nor shall any person be re- quired to list for taxation any share or shares of [ 649 the capital stock of any foreign corporation. If satisfactory proof, when demanded, is furnished to the taxation authorities by the holder of such share or shares that two-thirds or more of the property of such corporation is taxed in Ohio and the remainder is taxed in some other State or States of the United States; provided, however, that this shall not apply to shares in any foreign corporation unless it shall, whether otherwise re- quired by law to do so or not, pay annually for the privilege of exercising its franchise in Ohio, upon its entire authorized capital stock, the same percentage as is required by law on the subscribed or issued capital stock of domestic corporations for profit. ' ' An act of April 25, 1904 (Ohio), also provides for foreign corporations retiring from business within the State. (Session Laws, Ohio, 1904, page 383.) The provisions of the Pennsylvania law taxing for- eign corporations are set out in my opinion of October 7, 1901, in answer to the query of the N. K. Fairbank Company, to which opinion I refer. The provisions of the Pennsylvania law requiring foreign corporations to file a statement, etc., are re- ferred to in my opinion of July 20, 1901, in answer to the query of Sanford Manufacturing Company, to which opinion I refer. It is also provided in the constitution of Pennsyl- vania (Art. 16, Sec. 5) that "No foreign corporation shall do any business in this State without having one or more known places of business and an authorized agent or agents in the same, upon whom process may be served. ' ' HOW TO COMPLY WITH THE FOREIGN CORPORATION LAW OF INDIAN TERRITORY. (Eock Island Plow Company, July 13, 1905.) "We are very much interested in the opinion of Mr. Mayer with regard to the foreign corporation 650 j law of Indian Territory and would like to have him furnish us information as to how the law can be complied with, since it would seem from a re- cent decision of Judge Raymond, an abstract of which is taken from the Kansas City Journal of May 22, there is no one officially in the Indian Ter- ritory with whom a copy of our charter can be filed or with whom we can otherwise comply with the corporation laws effecting foreign corpora- tions, therefore the question arises as to whether or not there is such an official in each of the sev- eral nations that go to make up the Territory, or is it necessary to file proper papers and appoint a resident agent at each of the several recording points in the Territory. By reference to any late map you will note that the Indian Territory is cut up into districts, the same being numbered from 1 to 26, and each of these districts seem to have a recording place, which we assume perhaps cor- respond to the county seats of regularly organized States." The clipping referred to states that in a suit brought by the T. H. Rogers Lumber Company against A. S. McRae to collect for material furnished the defendant by the Lumber Company, Judge Raymond of the Court of Appeals of Indian Territory held that suit could not be maintained because the T. H. Rogers Lumber Company was a foreign corporation, doing business in Indian Territory, and had failed to open an office and maintain an agent at South McAlester. I. T., where the articles of incorporation for Indian Territory were filed. The opinion referred to has not yet been published, and I must rely solely upon the newspaper statement. In my former opinion of March 17, 1905, to the Rub- ber Paint Company, in reference to the Foreign Cor- poration Law of Indian Territory, I gave a synopsis of the Act of Congress which adopted that law. Sees. 4 and 5 of the Act of Congress of Feb. 18, 1901 , page 2947, par. 48. North Dakota: Eevised Code (1905), Sees. 5696, 5697. Oklahoma: Eevised Statutes (1903), Sees. 724, 725. Rhode Island: General Laws (1896), Ch. 187, Sec. 33. South Carplina: Code of Laws (1902), Sec. 1710. South Carolina: Acts of South Carolina, 1903, pages 1, 81. South Dakota: Eevised Code (1903), Sec. 1602. Texas: Eevised Statutes (1895), Arts. 331a, 331b. Virginia: Code of 1904, Sees. 1294c (24); 1294L. In the following states, by statute, the initial car- rier is made liable for loss or damage caused by con- necting carriers : Missouri: Laws of Missouri, 1905, pages 53, 54. Nebraska: Compiled Statutes (1905), page 538; par. 2069. New York: Birdseye's Eevised Statutes (1902), page 2947, par. 48. Virginia: Code of 1904, Sees. 1294c (24); 1294L. Under the Iowa Act (Laws of Iowa, 1904), page 78), all the carriers engaged in the transportation may be held liable for losses unless one or more of the carriers shall prove that it or they were not liable, and then judgment shall go against the remaining carrier. The following provision : "If freight addressed to a place beyond the usual route of the common carrier who first re- ceived it, is lost or injured, he must within a rea- sonable time after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge, or he will be him- self liable therefor." is in the statutes of the following states : Montana: Civil Code (1895), Sec. 2915. North Dakota: Revised Code (1899), Sec. 4249. Oklahoma: Eevised Statutes (1903), Sec. 725. South Dakota: Eevised Code 1903, Sec. 1602. In other states it is provided that any of the con- necting carriers engaged in the transportation may be held liable. South Carolina: Acts of South Carolina, 1903, page 1. Texas: Revised Statutes (1895), art. 331a, 331b. So-called "Tracing Acts" exist in the states of Georgia and Mississippi. Under the Georgia Act (Code of 1895, Sec. 2302, 2317, 2318), the initial car- rier is required to trace a lost or damaged shipment and inform the shipper when and by which carrier the shipment was lost or damaged, or else be liable itself. This statute was held void so far as it affects inter- state commerce shipments by the United States Su- preme Court in Cent, of Ga. Ry. Co. v. Murphy, 196 U. S., 194 (1905). The Mississippi Act (Code of 1892, Sec. 4301) provides that the last of several carriers delivering the shipment furnish to the consignee copies of all notations, etc., on the books of each carrier in relation to the freight damaged, etc., in transit, or it will be presumed to have caused the loss or damage. The recent amendment to the Interstate Commerce Act (Sec. 20 provides) : "That any common carrier, railroad or trans- portation company receiving property for trans- portation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder 864 thereof for any loss, damage or injury, to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, re- ceipt, rule or regulation shall exempt such com- mon carrier, railroad or transportation company from the liability hereby imposed; provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy -or right of action which he has under existing law. That the common carrier, railroad or transpor- tation company issuing such receipt or bill of lad- ing shall be entitled to recover, from the common carrier, railroad or transportation company, on whose line the loss, damage or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay to the own- ers of such property, as may be evidenced by any receipt, judgment or transcript thereof." IN REFERENCE TO THE TEXAS LAW OF 1905, LEVYING A TAX UPON THE GROSS RECEIPTS OF PRIVATE CAR LINES. (Barrett Manufacturing Company, July 20, 1906.) ' l The other day, when I called on you I referred to the affidavit which we are obliged to make to the State of Texas covering mileage earned by our company in that state and promised to send you one of the forms which you will find enclosed herewith. In the letter which accompanied same from Mr. James W. Stephens, comptroller, Aus- tin, Texas, he requested that the mileage be shown by counties. This letter was forwarded to our New York office, so are unable to send it to you. Beg to state that it is almost an impossibility for us to furnish accurate information in regard to mileage earned in any specific territory, particu- larly as to counties. If you can advise whether it is necessary for us to file these affidavits we would greatly appreciate it." 865 The Texas law referred to is as follows: (Acts of Texas, 1905, Ch. 148, Sec. 11; Sayle's Supplement, 1906, page 530) : "Sec. 11. Stock and other car companies to pay 2 per cent. Every person, firm, joint stock association or corporation owning stock cars, re- frigerator and fruit cars of any kind, tank cars of any kind, coal cars of any kind, furniture cars, or common box and flat cars, and leasing, renting, operating, hiring or charging mileage for the use of such cars, shall on or before the first day of April, and quarterly thereafter, through its super- intendent or other chief officer, or authorized agent, file with the comptroller of public accounts a report under oath, showing the amount of gross receipts from such rentals or mileage, or other sources of revenues, for the preceding three months, and shall pay a tax of 2 per cent, on their gross receipts from all rentals or mileage or other sources of revenue received from any railway companies or other persons or from all other sources within this state; provided, this shall not apply to the mileage and per diem paid by one railway- company to another railway company within this state for the use of such cars. Said tax herein levied shall be paid to the state treas- urer quarterly. If any person, firm, joint stock association or corporation shall fail to make the report and pay the tax as above provided, for thirty days after the termination of any quarter of the year, each and every such person, firm, joint stock association or corporation so failing shall forfeit and pay to the state twenty-five dol- lars for each day said report and payment are delayed, which forfeiture and tax shall be sued for by the attorney general, in the name of the state. And it is hereby provided that the cars or property of any such persons, firm, joint stock association or corporation shall be subject to seizure and sale whenever found in this state, to pay the taxes, penalties and costs that may ac- 866 crue under this article; provided, that upon 'the request of the comptroller each railroad company in the State of Texas shall forthwith and within not more than thirty (30) days after such request shall have been made, report to said comptroller under oath the amounts paid by it for the use of the cars of the kind mentioned in this section with- in such period as the comptroller shall have fixed and to what companies, associations or individuals the same was paid and the amount paid to each and the dates and particulars of such payments, and if any railroad shall fail to make any report as herein provided it shall forfeit and pay to the state twenty- five (25) dollars for each and every day during which said report is delayed, which shall be sued for by the attorney general in the name of the state. For the purpose of suits pro- vided for herein, venue and jurisdiction are here- by expressly conferred upon the courts of Travis County, and service may be had upon any officer or agent of any such person, firm, company or cor- poration within this state, and if no officer or agent can be found within this state, service may be had by citation by publication and such service shall in all respects be held legal and valid. The tax provided for in this article shall be in addi- tion to all other taxes levied by law. ' ' ' If the taxes upon gross receipts attempted to be col- lected under this act are based upon receipts derived from interstate traffic, such taxes will be void and un- enforceable. In Fargo v. Michigan, 121 U. S., 230 (1887), it was held, that while a state may tax the money actually within the state, after it has passed beyond the stage of compensation for carrying persons or property, as it may tax other money or property within its limits, yet a tax upon receipts for this class of carriage specifically is a tax upon the commerce out of which it arises, and if that be interstate commerce, it is void under the Constitution. The statute of the State of Michigan under which this tax was imposed was en- 867 titled, "An Act to provide for the taxation of per- sons, co-partnerships, association, car-loaning com- panies, corporations, and fast freight lines engaged in the business of running cars over any of the rail- roads of this state, and not being exclusively the prop- erty of any railroad company paying taxes on their gross receipts." Sections 1 and 2 required reports to be made to the Commissioner of Railroads of the gross amount of their receipts for freight earned within the state from all persons and corporations run- ning railroad cars within the state. The Commis- sioner was, by par. 4, required to make and file with the Auditor General on the first day of June of each year, a computation of the amount of tax which would become due on the first day of July next from each person, association or corporation liable to pay such taxes. Each one of these was, by par. 5, required to pay to the state treasurer upon the statement of the auditor general an annual tax of two and one-half per cent, upon its gross receipts. The Merchants' Dispatch Transportation Company carried no freight between points exclusively within the State of Michigan ; and in filing its schedule it set forth its gross receipts estimated and prorated ac- cording to the mileage of its cars within the state, divided into two classes. In the first class, the re- ceipts from transportation from points within to points without the state, and from points without to points within the state were given as $28,890.01; in the second class the receipts from transportation pass- ing entirely through the state to and from other states were given as the sum of $95,714.50. The auditor of the state assessed the tax upon the first class of re- ceipts. This was held void as a tax upon interstate commerce. The court said : "Freight carried from a point within that state to other states, is as much commerce among the states as that which passes entirely through the state from its point of original shipment to its destination. ' ' 868 In the case of the State Freight Tax, 15 Wall., 232 (1872), and State Tax on Railway Gross Receipts, 15 Wall., 286 (1872), it was held that a tax upon freight taken up within the state and carried out of it, or taken up without the state and brought within it, is a burden on interstate commerce and, therefore, in vio- lation of the constitutional provision that Congress shall have power to regulate commerce with foreign nations and among the several states. A statute of the State of Pennsylvania imposed upon all the railroad corporations doing business within that state, as well as others engaged in the carrying trade, a spe- cific tax on each two thousand pounds of freight car- ried. The Reading Railroad Company, a party to the suit, in making its report under this statute, divided its freight on which the tax was to be levied into two classes, namely, freight transported between points within the state and freight which either passed from within the state out of it or from without the state into it. The Supreme Court of Pennsylvania- decided that all the freight carried without regard to destination was liable to the tax. The United States Supreme Court, however, held that freight carried en- tirely through the state from without, and the other class of freight brought into the state from without or carried from points within to points without, all came under the description of interstate commerce within the meaning of the Constitution ; and it also held that freight transported from and to points exclusively within the limits of the state was internal commerce. The taxing law of the state was, therefore, valid as to the latter class of transportation, but with regard to the others it was invalid, because it was interstate commerce and the state could lay no tax upon it. In Pickard v. Pullman Southern Car Co., 117 U. S., 34 (1880), it was held that a statute of Tennessee im- posing a privilege tax of $50 per annum on every sleep- ing car run over a railroad in Tennessee was void so far as it applied to interstate commerce, and that taxes levied on cars engaged in interstate transporta- tion were void. 869 In Phila. & So. Steamship Co. v. Pennsylvania, 122 U. S., 326 (1887), it was held that a state tax of Penn- sylvania upon the gross receipts of a steamship com- pany which are derived from the transportation of persons and property was a regulation of interstate commerce and void. In Ratterman v. W. U. Telegraph Co., 127 U. S., 411 (1888), it was held that a single tax assessed un- der the laws of Ohio upon the receipts of a telegraph company which were partly derived from interstate commerce and partly from commerce within the state and which were capable of separation, but were re- turned and assessed in gross and without separation or apportionment is invalid in proportion to the ex- tent that such receipts were derived from interstate commerce, but is otherwise valid. In Leloup v. Mobile, 127 U. S., 640 (1888), it was held that a general license tax exacted by a municipal- ity on the business of a telegraph company affects its entire business, interstate as well as domestic and is unconstitutional and void. In W. U. Telegraph Co. v. Alabama, 132 U. S., 472 (1889), a statute of Alabama imposed a tax "on the gross amount of the receipts by any and every tele- graph company derived from the business done by it in this state." The Western Union Telegraph Com- pany reported to the Board of Assessors only its gross receipts received from business wholly transacted within the state. The board required of the company a further return of its gross receipts from messages carried partly within and partly without the state. The company made such further return and the tax imposed upon its gross receipts as shown by the two returns. It was held that the statute thus construed was a regulation of commerce, and that the tax im- posed upon the receipts in the second return was un- constitutional. In Maine v. Grand Trunk Ey. Co., 142 U. S., 217 (1891), the Maine statute requiring railroads operated within the state to pay an annual tax for the privilege of operating, to be determined by the amount of gross 870 transportation receipts, and providing that when ap- plied to a railroad lying partly within and partly with- out the state, or to one operated as a part of a line or system extending beyond the state, the tax shall be equal to the proportion of the gross receipts in the state, to be ascertained as provided by the statute, was held not a regulation of commerce in conflict with the Constitution, and a tax thereby imposed on an in- terstate railway was within the power of the state to levy. The court held that this was simply a means of ascertaining the value of the privilege. In Pacific Express Co. v. Seibert, 142 U. S., 339 (1892), a Missouri statute levying a tax upon the busi- ness of an express company done within the state was held valid. In Allen v. Pullman's Palace Car Company, 191 U. S., 171 (1903), taxes exacted by the State of Tennessee from a sleeping car company engaged in both inter- state and intrastate traffic under a statute imposing an annual tax of $500 per car upon sleeping car com- panies doing business in the state which makes no dis- tinction between cars used in interstate traffic or in traffic wholly within the borders of the state, were held void as an attempt by the state to impose a burden upon interstate commerce. The court there said (p. 179) : "The act in its terms applies to cars running through the state as well as those whose operation is wholly intra-state. It applies to all alike, and requires payment for the privilege of running the cars of the company regardless of the fact whether used in interstate traffic or in that which is wholly within the borders of the state. There is no decision of the Supreme Court of Tennessee lim- iting the act in its operation to intra-state traffic. It is true that the comptroller has sought to re- strain the operation of the law by imposing the tax for two years upon cars running between Nashville and Memphis and between Nashville and Chattanooga for two years, and fixing one car in each year as the proportion of local busi- 871 ness done on interstate cars for two years. But this action does not conclude the state in taxing for other years, and the action taken by the comp- troller does not limit the terms of the law affect- ing interstate commerce." And: "In Osborne v. Florida, 164 U. S., 650, a license tax upon express companies was sustained, in view of the decision of the Supreme Court of that state, that it affected only business of the company within the state. The statute now under consideration requires payment of the sum ex- acted for the privilege of doing any business when the principal thing to be done is interstate traffic. We are not at liberty to read into the statute terms not found therein or necessarily implied, with a view to limiting the tax to local business, which the legislature in the terms of the act impose upon the entire business of the company. We are of opinion that taxes exacted under the act of 1887 are void as an attempt by the state to impose a burden upon interstate commerce." Under the decisions above noted it is beyond the power of the State of Texas to impose any tax upon the gross receipts from cars engaged in trasporting property from points within to points without, or from points without to points within the State of Texas. In Ratterman v. W. C. Tel. Co., 127 U. S. r 411, 424 (1888), the Supreme Court said: "Where the subjects of taxation can be sepa- rated so that that which arises from interstate commerce can be distinguished from that which arises from commerce wholly within the state, the court will act upon the distinction, and will restrain the tax on interstate commerce, while per- mitting the state to collect that arising from com- merce solely within its own territory." By Section 1, Article 8, of the Constitution of Texas, the legislature is authorized to "impose occupation taxes both upon natural persons and upon corpora- tions, other than municipal, doing business in the 872 state." It is within the power of the state to pro- vide for privilege or occupation taxes based upon gross receipts collected from traffic entirely within the state. It is in the nature of a tax upon the privi- lege of running cars within the state for local traffic. But such a tax can in no event be based upon receipts derived from interstate commerce. I am of the opinion that any taxes attempted to be levied upon receipts from transportation from points within to points without, or from points without to points within the state are invalid. I advise that if any return be made on the schedule the Barrett Manufacturing Company limit its state- ment of gross receipts derived solely from traffic be- tween points entirely within the state. There is no provision of the law requiring the return to be made by counties and it is not necessary so to do. If the state attempts to collect taxes on the receipts from in- terstate traffic, such action may be restrained. On July 24, 1901, I rendered an opinion to the Illi- nois Zinc Company in reference to a similar law passed by the legislature of Indiana. I there stated that if the Zinc Company was not doing business in Indiana, but merely shipped its own goods from Illinois to In- diana, in its own cars, and the cars when emptied were returned to the principal place of business of the company in Illinois, and were not used in any other way, and the Zinc Company did no other business of any kind in Indiana, that in such a case the situs of the cars was in Illinois and not in Indiana, and therefore the Zinc Company did not come within the purview of the act in question. If the methods of doing business pursued by the Barrett Company of Texas are similar to those then pursued by the Zinc Company in Indiana, I am of the opinion that the Texas law need not be complied with, even if it be valid. P. S. Since writing the above there has been pub- lished the opinion of the Texas Court of Civil Ap- peals in the case of Galveston, etc., Ry. Co. v. David- son, 93 S. W., 436 (July, 1906), which holds that the 873 Gross Receipts Tax Act levying a tax upon the gross receipts of railroads (Acts of Texas, 1905, ch. 141) is unconstitutional and void. While this is not the iden- tical chapter of the statute under which the tax on gross receipts of car lines is levied, the same reason- ing in holding unconstitutional the statute levying a tax on the gross receipts is applicable to the statute in reference to taxes on car lines, etc. The court en- joined the state officials from proceeding to levy and collect the taxes as required by the act. There is a certain distinction between the section of the statute as to taxes on gross receipts of railroads and upon gross receipts of car lines, in that the lat- ter section contains the expression "or from all other sources within this state." It is doubtful whether "within this state" limits the taxes solely to intrastate receipts. I advise that the Barrett Manufacturing Company make no payment of taxes on any of its gross receipts until the Supreme Court of Texas has passed upon the question. EMPLOYMENT OF CHILDREN UPON HAZARDOUS MACHINERY UNDER THE ILLINOIS CHILD LABOR LAW. (Foley Mfg. Co., July 20, 1906.) "We want to know whether or not there is danger of liability for employing boys between the ages of 14 and 16 on machinery, on work that might be called hazardous. This matter may have been covered heretofore, but if so it has escaped writer's attention." Section 11 of the Act of May 15, 1903, provides : "EMPLOYMENT FORBIDDEN CHILDREN UNDER SIX- TEEN YEARS OF AGE. No child under the age of six- teen years shall be employed at sewing belts, or to assist in sewing belts, in any capacity whatever ; nor shall any child adjust any belt to any ma- chinery; they shall not oil or assist in oiling, wip- ing or cleaning machinery ; they shall not operate 874 or assist in operating circular or band saws, wood- shapers, wool-jointers, planers, sandpaper or wood-polishing machinery, emery or polishing wheels used for polishing metal, wood-turning or boring machinery, stamping machines in sheet metal and tinware manufacturing, stamping ma- chines in washer and nut factories, operating cor- rugating rolls, such as are used in roofing fac- tories, nor shall they be employed in operating any passenger or freight elevators, steam boiler, steam machinery, or other steam generating ap- paratus, or as pin boys in any bowling alleys; they shall not operate or assist in operating, dough brakes, or cracker machinery of any description; wire or iron straightening machinery; nor shall they operate or assist in operating rolling mill machinery, punches or shears, washing, grinding or mixing mill or calendar rolls in rubber manu- facturing, nor shall they operate or assist in op- erating laundry machinery; nor shall children be employed in any capacity in preparing any com- position in which dangerous or poisonous acids are used, and they shall not be employed in any capacity in the manufacture of paints, colors or white lead; nor shall they be employed in any capacity whatever in operating or assisting to operate any passenger or freight elevator; nor shall they be employed in any capacity whatever in the manufacture of goods for immoral pur- poses, or any other employment that may be con- sidered dangerous to their lives or. limbs, or where their health may be injured or morals depraved; nor in any theater, concert hall, or place of amuse- ment wherein intoxicating liquors are sold; nor shall females under sixteen years of age be em- ployed in any capacity where such employment compels them to remain standing constantly." The above section has been recently construed in the case of Swift v. Rennard, 119 111. App., 173, and it was held that the phrase "or any other employment" does not refer to the list enumerated in the section, but is 875 broad enough to include any employment which may be considered dangerous. There is therefore in my opinion serious "danger of liability for employing boys between the ages of 14 and 16 on machinery or work that might be called hazardous." AS TO THE AMOUNT OF FEES THAT SHOULD BE CHAEGED FOE INSPECTING AND SEALING YAED MEASUEES UNDEE THE CHICAGO OEDINANCES. (W. D. Allen Mfg. Co., July 20, 1906). "For several years when the department of weights and measures from the City Hall have been in here we have had a little controversy with them about the 100 foot measures we have on our floors for the sake of convenience. We have the figures for 100 feet tacked down on our floor in we think three places and when these representatives come in from the City Hall they have measured each 100-ft. lengths and charged us for certifying to the length of 33 yard sticks in each case. It looked to the writer like a mild form of graft, and while we do not care for the amount in contro- versy, we object to being imposed upon this way and we received the enclosed notice this morning. These people advise us that it is customary to collect this way from other people. We think it is an imposition, and we would like to know if your legal department will take this matter up and make a test case of it." Section 2466 of the Eevised Municipal Code of Chi- cago of 1905 (Tolman) provides: "2466. ANNUAL AND SEMI-ANNUAL INSPECTIONS. It shall be the duty of said inspector to inspect and examine once in each year all weights, measures, scale beams, patent balances, steel-yards and other instruments used for weighing and measuring in the city, except track scales and scales of a ca- pacity of three tons or upwards, which shall be inspected once in every six months, and to stamp with a suitable seal all weights and measures and 876 scales so used which he may find accurate, and de- liver to the owner thereof a certificate of their accuracy. ' ' Section 2467 provides: "2467. EEGISTER REPORT. It shall be the duty of the said inspector to make a register of all the weights, measures, scale beams, patent balances, steelyards, and other instruments used for weigh- ing, inspected and sealed by him, in which he shall state the names of the owners of the same, and whether they are conformable to the standard of the state." Section 2473 provides the fees for inspection as fol- lows: "For inspecting and selling yard measures, each .05." Section 2476 provides: "2476. INSPECTION OBLIGATORY. Every person using weights, measures, scale beams, patent bal- ances, steelyards, or any instrument, in weighing or measuring any article intended to be purchased or sold in the city, or in weighing or measuring any person or animal for hire or reward shall cause the same to be inspected and sealed by the inspector of weights and measures in accordance with the provisions of this chapter." Section 2480 provides: 1 1 2480. CERTIFICATE REQUIRED. Any person who shall, in weighing or measuring any article for purchase or sale within the city, use any weight, measure, scale beam, patent balance, steelyard, or other instrument or who shall maintain or operate any weight, measure, scale beam, patent balance, steelyard, or other instrument, whether automatic or otherwise, used for the purpose of weighing or measuring any person or animal for hire or re- ward, which has not been sealed or for which the aforesaid certificate has not been obtained from the inspector, as required by this chapter, shall be fined not less than five nor more than twenty- five dollars for each offense." Section 2481 provides: "2481. INCORRECT OR FAULTY MEASURES OR SCALES. If any person shall use, maintain or oper- ate in the city, in weighing or measuring as afore- said, any weight, measure, scale beam, patent bal- ance, steelyard, or other instrument, which shall not be conformable to the standard of this state, or shall use in weighing, as aforesaid, any scale beam, patent balance, steelyard, or other instru- ment, which shall be out of order or incorrect, or which shall not balance, he shall be fined for every such offense not less than twenty-five dollars nor more than one hundred dollars." Section 2482 provides : "2482. REFUSAL TO EXHIBIT. No person shall refuse to exhibit any weight, measure, scale beam, patent balance, steelyard, or other instrument, to said inspector for the purpose of being so in- spected and examined, under a penalty of not less than twenty-five dollars for each offence." If the measures in question were used by the com- pany in measuring any article intended to be pur- chased or sold within the city they are subject to in- spection by the City of Chicago, as provided by the ordinance above quoted. The ordinance is passed under the police power of the city and is a valid ordi- nance. A more difficult question is presented as to the amount of the charge for the inspection. Section 2473 prescribes various fees for inspection. The fees for the inspection of scales vary according to the capacity of the scales; the fees for the inspection of liquid and dry measures vary according to the capacity of the measure. The provision as to other measures is "for inspecting and sealing yard measures, each, .05." This is the only reference in the law to yard meas- ures. If the term "yard measure" as used in the ordi- nance means an instrument used for the purpose of measuring yard lengths, it is clear that the charge 878 could not exceed five cents for each measure irrespec- tive of its length. In the Century Dictionary "yard measure" is thus defined: "A measure of 3 feet in length, made of either rigid or flexible material." If the term "yard measure" is used in the ordinance as meaning a measure three feet in length, it is prob- able that the inspector is entitled to charge five cents for each yard inasmuch as it is the clear intention of the city council to make the fees proportionate to the amount of labor performed. The evident intent of the city council was to make the fee dependent upon the capacity, and it is so expressly specified with reference to liquid and dry measures, scales, etc. Furthermore the amount of labor involved in inspecting a 100 or 1000 "yard measure" is manifestly greater than if the measure consisted of only one yard. A counter in a dry goods store may be 100 or 200 feet. The question is not free from doubt and until the question is finally passed upon by the courts, it is very difficult to say what the exact outcome will be, but I am inclined to the opinion that the city inspector's con- struction will be upheld. AS TO THE RIGHT OF THE CITY OF CHICAGO TO GRANT BY ORDINANCE OR OTHERWISE PERMISSION TO MERCHANTS TO BUILD PLATFORMS FOR BULKHEADS IN PUBLIC STREETS. (Reid, Murdoch & Company, July 20, 1906.) "There was an opinion filed in the Branch Ap- pellate Court (First District) May 29th, 1906, en- titled as follows: * Chicago Cold Storage Warehouse Company, City of Chicago, Frederick W. Blocki, Commis- sioner of Public Works, Michael J. Doherty, super- intendent of streets and alleys, plaintiffs in error, v. The People ex rel. William E. Stirling, Charles E. Brown, Hugh McBirney Johnston, Robert B. Gregory, and Hugh J. McBirney, defendants in error. ' As we understand it, this case, in substance, de- 879 nies the right of the city to grant by ordinance or otherwise permission to merchants to build plat- forms for bulk-heads on a public street. We be- lieve the streets were intended for use in business subject to such regulation as the city may see fit to impose to protect the public and that possibly all that may be said on the subject is not set forth in that case and that if the doctrine, as laid down, is permitted to become a settled rule of law in this city, it will be very prejudicial to the interests of Chicago. As you undoubtedly are aware bulk-heads are constructed to avoid the use of skids and facili- tate the use of the street both by the merchant and public, it being, we think, conceded by all that a bulk-head is far superior to the skid system. To* go a step further, if we are not entitled to use either bulk-head or skid, then, it must mean that we are substantially barred from transacting busi- ness in buildings abutting public streets. We think you will agree with us that it affects all mer- chants and is important to have the case reviewed by the Supreme Court and presented in the best possible light to that court and to that end, we thought possibly it could be handled to better ad- vantage through the General Counsel of your as- sociation than elsewhere. Kindly advise whether the association will fol- low the subject through or not." The opinion of the Branch Appellate Court in Chi- cago Cold Storage Company v. People ex rel. Stirling, 127 111. App., 179 (June 2, 1906). The court, by Jus- tice Baker, said: "It is conceded by plaintiffs in error that it is not within the power of any municipality in this State to give any person the exclusive right to use any part of a street permanently, but it is said that a city may readjust the plane of its sidewalks to meet new needs and conditions ; that this is all that was attempted to be done by this ordinance, and therefore the city was clearly within its cor- 880 porate powers in passing the ordinance. No doubt the city has the power to establish the grade and level of a sidewalk and to alter and change such grade and level, 'to meet new needs and conditions, ' provided the need is a public and not a mere private need, the condition one in which a change is demanded by considerations of public benefit, and public interest, and not one where a change is made to further and advance a mere private interest to the detriment of the in- terest of the general public. But this ordinance does not establish the grade or level of the side- walk on the west side of Indiana avenue in the vicinity of the premises described therein. It as- sumes that there is in front of said premises, and north and south of said premises a sidewalk. It provides that said Warehouse Company may, upon complying with the conditions therein described, construct in front of its premises 'a platform or bulkhead; that said platform shall be elevated above the remainder of the sidewalk' a certain distance ; that at the expiration of the term there- in granted said 'platform or bulkhead shall be re- moved by said grantee * * * and if so re- moved the sidewalk shall be restored to its proper level. ' It is true that the ordinance provides that said platform shall be considered the sidewalk in front of said premises, and that signs with the words 'public sidewalk' shall be displayed at each end of such structure. But in passing upon the valid- ity of the ordinance regard must be had to the substance rather than to the form, to the purpose and intention of the Council as the same appear in the ordinance, rather than to the language of any particular clause or phrase. Looking to the substance of this ordinance to the object sought to be attained, to the interest sought to be bene- fited, to the intention of the Council, as the same appear in the terms and provisions of the ordi- nance, and it must, in our opinion, be held in effect 881 to grant to said Warehouse Company the right to construct and maintain upon a public sidewalk, in a public street, a structure for the private use and benefit of said Warehouse Company, which structure serves no public use. but on the contrary interferes in a substantial manner with the use of such sidewalk by the public, and therefore must be held to be invalid. It is not a sufficient answer to say that the sidewalk is not wholly obstructed by the platform in question; that persons desir- ing to pass in front of said premises may leave the sidewalk at one end of such platform, go up five or six steps, pass over and along the platform, and at the other end go down five or six steps to the sidewalk. It is sufficient that it appears that the ordinance was passed in l;he interest of the Warehouse Company, that it grants to that Com- pany, to further and advance a mere private in- terest, a right not given to other property owners on said street, and that its effect is to interfere in a substantial manner with the right of the public to the free and unobstructed use of a sidewalk, which is in and a part of a public street. ' ' It is the settled law in this State that in the absence of express statute, a city has no power to grant to an individual or corporation an easement of a private nature in a public street, or anv portion thereof. Field v. Barling, 149 111., 556. Hibbard, Spencer, Bartlett & Co. v. Chicago, 173 111., 91. Snyder v. Mt. Pulaski, 176 111., 397. Penn Co. v. Chicago, 181 111., 289. People v. Chicago, 193 111., 543. In Hibbard, etc., Co. v. Chicago, 173 111., 91, 96 (1898), the Supreme Court said: "The public streets of a city are dedicated to the public for public use and are subject to the control and management of the city council, but that body has no power to alien or otherwise en- cumber such streets so long as they are public streets, but must hold them in trust for public 882 uses only. The municipal corporation can grant no easement or right therein not of a public na- ture, and the entire street must be maintained for public use, hence no individual or corporation can acquire any portion of the street for exclusive pri- vate use to the exclusion of the public. The city council has no power to grant such use. (Field v. Barling, 149 111., 556.) Whilst it may grant in- dividuals or corporations a temporary use for such time and in such way as not to interfere with public use, yet there is no power in the munici- pality to sell or grant for private use a public street and exclude the public therefrom." And (p. 99): "The right of the public to the exclusive use of the streets for public purposes is inconsistent with the right of a private citizen to encroach thereon by the erection of a permanent structure. The streets are held in trust by the municipality, and this fact prevents the municipality from author- izing any encroachment on or obstruction of them by such structures. The mere consent of the city council by resolution or order gives no vested right." By an act of May 18, 1905, the State Legislature granted certain powers to the City Council of Chi- cago. The Act of May 18, 1905 (Laws of 1905, page 109, Sec. 5), provides: "The City Council may also regulate the use of space over the streets, alleys and public places of the city, and upon payment of proper compensa- tion, to be fixed by ordinance, may permit the use of space more than twelve feet above the level thereof. ' ' This provision, however, will not permit the use of bulkheads. As the law now stands it is beyond the power of the City Council to authorize the use of bulkheads in the streets by private corporations to the exclusion of the public. I expressly abstain from passing upon the question whether even the Legis- lature can authorize the City to pass an ordinance 883 which will permit public property to be used for pri- vate purposes. NOTE: The case in the Appellate Court referred to in the above opinion was subsequently affirmed by the Supreme Court in Chicago Cold Storage Co. v. The People, 224 111., 287 (December 22, 1906). Ed. THE RIGHT OF A TENANT TO LEASE THE SIDE OF A BUILDING FOE ADVERTISING PURPOSES. (Selz, Schwab & Co., July 20, 1906.) "We would like to have you obtain for us from your legal department an opinion in regard to the right of a tenant to lease the side of a building on which to paint a sign. An advertising company is doing a lot of this sign painting work for us in several states, and at present is working in Illi- nois, and a dispute has come up between the owner of a building and the tenant as to which has the right to lease the space on the building for sign purposes." The right of the tenant to lease the side of a build- ing for advertising purposes will depend upon the terms of the lease under which he holds the premises. If the tenant holds by lease the entire premises he will have the right to let the side-walls for advertising pur- poses, provided there are no conditions to the contrary in the lease. The outside wall of a building leased or conveyed passes by the lease or deed as much as the inside of the same wall. In Riddle v. Litchfield, 53 N. H., 503, A leased to B a certain store known as "No. 191 Elm street." The plaintiff owned this building and brought suit against the defendants, the tenants, for money received by the tenants as rent of the outside walls of the building for advertising purposes. It was held that the lessees had the right to rent the outside walls for advertising purposes. The court said: "Now, it will hardly be contended that the out- side wall of a store or house is not essential for 884 the reasonable and proper enjoyment of the in- terior of the building. The outer side of the wall is but one side of the same wall that has an inner side, and the removal of the wall removes both sides. If, then, a lessee or grantee may have the wall which he pays for, it would seem that he should be entitled to the use of it, not only for the purposes indispensable to the occupation of the building, but also for any purpose of service or profit not in- consistent with the lawful and reasonable enjoy- ment of the property. If he uses the tenement for a store, he would ordinarily be entitled to affix his signs to the outer wall ; an awning, also, if such appendage would be deemed necessary or convenient. He may sus- pend his wares upon the building, if nobody is in- commoded thereby, and he may cover the outer walls with his advertisements of the merchandise which he keeps for sale within, if he does not in- jure the building, nor obstruct the public passage, nor offend the public eye and taste by unseemly exhibitions, or otherwise violate the laws. And if he may thus encumber and cover the exterior walls of his store, clearly his lessor cannot do the same thing at the same time. The occupation by both parties to the lease, for incongruous pur- poses, is impossible. If the premises are leased for a clothing store, for example, the lessor cannot use for a bulletin board the space which the lessee may reasonably, properly, conveniently, and profit- ably occupy with the ready-made garments which he there suspends for exhibition and sale. Who, then, shall occupy the exterior walls of the demised building? The landlord, who for a suffi- cient consideration has parted with the possession and use of the property, usque ad filum viae (if it is bounded by a street) ! or the tenant, who cannot have the full and complete as well as reasonable beneficial enjoyment of the property for which he pays rent, without the opportunity to display his 885 wares and his advertisements upon the external walls of the building? The lessee who affixes his signs and advertise- ments upon the wall, or thereupon suspends his wares, does so in order to attract custom, and thereby increase the profit derived from the use of the demised premises. The outer wall is there- fore to him a source of legitimate profit. And, as the lessor does not ordinarily prescribe the uses to which the interior of the store shall be devoted provided only the use be not offensive, improper or illegal so he may not, otherwise than with the same proviso, prescribe the uses to which the outer walls may be devoted by his lessee. If the lessee deems it more advantageous to employ the walls for advertising the goods or the business of others, receiving payment therefor, than to adver- tise or expose his own goods upon the wall, it is none of the landlord's business, unless he has re- stricted and forbidden such use of the premises, or inserted in his lease a covenant against the sub- letting of them." A different question may arise if the lessee rents only a portion of the entire premises. Thus, in Booth v. Gaither,, 58 111. App., 263 (1895), a tenant who occu- pied a storeroom of a one-story building attempted to interfere with the use of the space in front of the build- ing above the ceilings for advertising purposes, under a lease of such space from the landlord. He was en- joined from so doing on the ground that the space on the front, above the ceilings, or at least above the top of the ceiling joists, remained in the possession of the landlord, who could grant the use of the same to an- other for advertising purposes. If the lease contains a covenant by the lessee not to sublet the premises without the consent of the landlord, another question arises. But I am of the opinion that even if such a provision is in the lease the covenant will not be broken by the lessee in granting the use of the side walls for advertising purposes. That does not constitute a subletting within the conditions of the lease. 886 In Lowell v. Strahan, 145 Mass., 1 (1877), two ac- tions were brought by the lessor of a building against the lessee ; one to recover money which the lessee had received from a person he had allowed to place a sign on the outer wall of the part of the building leased to the defendant; and the second action, for a breach of the covenant in the lease against subletting on the ground that the outer wall was included in the lease, and that the act of the lessee in allowing the placing of the sign thereon by a third person was a subletting of the wall. It was held that this was not a subletting within the condition in the lease, the court saying, at page 12: "It is contended that the agreement of the de- fendant to allow the sign of a stranger, in consid- eration of an annual payment by him, to remain upon the outside wall demised, was a breach of the covenant in the lease not to underlet any part of the premises. But this was a license, and not a lease. It w T as permission to do a particular act, namely, to affix a sign to the wall, and gave no au- thority to do any other act upon the premises. The fact that the permission was paid for, and that the act permitted was a continuing one, are ordinary elements of a license. Every license to do an act upon land involves the exclusive occupa- tion of the land by the licensee, so far as is neces- sary to do the act, and no further. A lease gives the right of possession of the land, and the ex- clusive occupation of it for all purposes not pro- hibited by its terms. It is clear in this case that the intention was that the licensee should have no other right in the premises than to affix his sign to them, and that every other right should remain in the defendant. An agreement of this nature cannot be construed as a lease; it must create either a license or an agreement." It was further held that if the lease demised the first floor of premises the outer walls would be in- cluded; but if the lease was of a "room" the outer walls would not be included. 887 Other cases are to the same effect: Baldwin v. Morgan, 43 Hun., 355 (N. Y.). Carlisle Cafe Co. v. Muse, 67 L. J. Ch., 53 (England). In Willoughby v. Lawrence, 116 111., 11, where a con- tract was entered into by the lessees of a tract of land used for a race course, giving the other party thereto the right to use the fences and other buildings erected on the tract for advertising purposes, it was held that the right granted by the contract involved the right of entry upon the premises to reach the buildings and fence, and that such right was a burden or servitude in the nature of an easement upon the premises which, when recorded, would be binding upon subsequent pur- chasers or creditors of the lessee. The court did not pass on the question as to whether this would be a sub- letting prohibited by the lease, on the ground that only the lessor could raise the question. In Levy v. Louisville Gunning System, 89 S. W., 528 (Ky., 1905), it was held that the right granted by the owner to display a sign on the walls of a building, given in writing, for a definite time for a valuable con- sideration, is not revocable at the will of the owner of the building, and that a lessee renting the premises with a knowledge of the prior right granted by the owner of the premises to use the walls for advertising purposes can properly be enjoined from interfering with such use. As a general rule, therefore, unless otherwise cove- nanted in the lease of a building or of an entire floor, the lessee has the right to let the space on the outside walls of the particular premises rented and controlled by him, for advertising purposes free from any inter- ference by the landlord. THE MICHIGAN LAW OF 1905, IMPOSING A TAX UPON PRI- VATE CAE LINE COMPANIES. (Barrett Mfg. Co., July 20, 1906). "We have just received from the State Board of Assessors, Lansing, Michigan, annual report to be filled out, covering movements of our tank cars in the State of Michigan and the amount of mile- age earned, etc. We also received a letter from Orin T. Bolt, Secretary, under date of June 8th, which reads as follows: 'We are sending you today by express, blanks for making the Public Acts of 1905. Kindly ac- knowledge receipt of postal card enclosed here- with. Section No. 6 of the above Act (a copy of which is enclosed with the blanks) provides that the report must be filed in this office by August 31st and Section No. 8 provides a penalty for neg- lect or refusal to file same. I am instructed by the board to inform you that the report must be in this office by the time fixed by law for filing same.' Will you kindly advise us whether it is necessary to furnish the information referred to?" This inquiry involves the constitutionality of the Act in question. If the Act is unconstitutional in an im- portant provision, so that without such provisions the purposes of the Act would be rendered nugatory, the whole statute must fail; or if the good and bad are inseparably mixed, the whole Act must fall. The title of the Act is as follows: "No. 282 Pub. Acts of Michigan, 1905. An act to provide for the assessment of the property of railroad companies, union station and depot companies, sleeping car companies, express companies, car loaning companies, stock car com- panies, refrigerator car companies and fast freight line companies, and for the levy of taxes thereon by a State Board of Assessors, and for the collec- tion of such taxes, and to repeal all acts or parts 889 of acts contravening any of the provisions of this act." (Sess. Laws of Mich., 1905, pp. 439, et seq.) Sec. 1 provides that the State Board of Tax Com- missioners shall constitute the State Board of As- sessors. Sec. 2 provides for the compensation of clerks, etc. Sec. 3 gives the board right of access to public rec- ords, and provides inter alia. "It shall have the right to inspect and examine the books, papers or accounts of any corporation, firm or individual, owning property to be assessed by said board," etc. In opinions of Attorney-General, 8 D. L. N., 587, 588, the Attorney-General rendered an opinion that the State Tax Commissioners had the power to examine the books of private banks. Sec. 4 provides: "It shall be the duty of said board to make an annual assessment upon an assessment roll to be prepared by said board, of the property having a situs in this state as hereinafter defined, of rail- road companies, union station and depot com- panies, express companies, and sleeping car com- panies, doing business within this state, car loan- ing companies and refrigerator and fast freight line companies, and all other corporations owning, leasing, running or operating any freight, stock, refrigerator, or any other cars, not being exclu- sively the property of any railroad company pay- ing taxes upon its rolling stock under the pro- visions of this act, over and upon the line or lines of any railroad or railroads in this state." This provision is valid, as it is well settled that property may have a situs distinct from the domicile of the owner of such property, and may be taxed wherever it has a situs. Tappan v. Bank, 19 Wall., 499. State R. E. Tax Cases, 92 U. S., 607. American Refrigerator & Transit Co. v. Hall, 174 U. S., 70. 890 Sec. 5 provides: "The term property as used in this act shall be deemed to include all property, real or personal, belonging to the corporation subject to taxation under this act, including the right of way, road- bed, stations, cars, rolling stock, tracks, wagons, horses, office furniture, telegraph or telephone poles, wires, conduits, switchboards, and all other property used in carrying on the business of said corporations, and owned by them respectively, and all other real and personal property and fran- chises, said franchises not be directly as- sessed, but to be taken into consideration in determining the value of the other prop- erty. (Proviso not to handle certain real estate). The term 'property having a situs in this state,' shall include all the property, real and per- sonal, of the corporations enumerated in this act, owned, used and occupied by them within the limits of this state, and also all such proportion of the rolling stock, cars and other property of such cor- porations as is used partly within and partly with- out this state, as herein provided to be deter- mined. ' ' Section 6 provides : "The several corporations, enumerated in this act, doing business in this state, shall annually be- tween the first day of July and the thirty-first day of August in each year, under oath of their presi- dent, secretary, treasurer, superintendent or chief officer of such company, make and file with the State Board of Assessors in such form as said board may provide, upon blanks to be furnished by said board, a statement containing the follow- ing facts: Car loaning, stock car, refrigerators and fast freight line companies and other car companies. The blanks furnished to car loaning, stock car, refrigerator and fast freight line companies, shall provide for the following information: First : The corporate name of the company. 891 Second : The nature of the business of said com- pany, and under the laws of what state or country organized. Third : The location of its principal office. Fourth : The name and postoffice address of the president, secretary, auditor, treasurer and super- intendent or general manager. Fifth : The location of its principal office in the State of Michigan, together with the name and ad- dress of the chief officer or managing agent of the company in Michigan. Sixth: The total number of cars and rolling stock of any such corporation run over or op- erated upon any line or lines of railroad within this state each day during the entire year preced- ing the date of making and filing such report. Seventh: The cost of construction of each of said cars: Eighth : The length of time the same has been in service. Ninth: The cash value of each of said cars so operated and run in this state at the time of mak- ing and filing of such report. Tenth : And such other and additional informa- tion as may be deemed necessary by said board or any member thereof, to the proper assessment of the cars of such company in this state in accord- ance with the provisions of this act and to the per- formance of the duties imposed upon it thereby." Sec. 7 applies solely to sleeping car companies. Sec. 8 provides in substance: " Blanks to be furnished on application, reports so made not to relieve company from making re- port required by other state officer. Board may act when company fails to report. Penalty of $500 per day for neglect or refusal to file report within the time specified." Sec. 9 provides: ' ' Subsequent to the filing of the reports required in the preceding section, and prior to the fifteenth day of January in each year, it shall be the duty 892 of the State Board of Assessors to prepare an as- sessment roll as provided in section four of this act, upon which they shall assess at the true cash value on the thirtieth day of June of the year in which the assessment is made all the property of the companies herein enumerated, subject to tax- ation, under this act. Boards may personally in- spect property and consider reports to arrive at cash value. In ascertaining the cash value of the property of car loaning (etc.), companies, subject to taxa- tion under this act, they shall ascertain the aver- age number of cars used in this state during the year preceding the date of the filing of the report mentioned in the prevailing section, such average to be determined by dividing the total number of cars so used or operated within this state during said year by the total number of days on which said cars were so used or operated within this state, and they shall then ascertain the average cash value of such average number of cars and from said data the total valuation shall be de- termined and shall be assessed against the prop- erty of said corporation." Sec. 10: 11 Assessment roll to contain general description of property. ' ' Sec. 11 : "Annual meeting of board of reviews for assess- ment. May subpoena witnesses. May place on roll any property omitted, etc." Sec. 12: * ' Duty of county clerk, etc. ' ' Sec. 13: "Board of assessors to determine cash value of all property of state 'to ascertain and determine the true cash value of all property of the state, other than that included upon said assessment roll, upon which ad valorem taxes are a-ssessed for state, county, township, school and municipal pur- poses for the current year, and shall enter the same upon its records forthwith, and not later than the 893 fifteenth day of January in each year the said board of assessors shall ascertain and determine the average rate of taxation levied upon such other property for the then current year, by dividing the aggregate amount of ad valorem taxes levied upon such other property in the state for such purposes, as shown by the report required by the preceding section, ' etc. Proviso as to correction in true cash value and average rate of taxation." This section is almost an exact duplicate of Sec. 11, Art. 14, of the Constitution as amended, and is sus- tained in Atty. General v. Assessors, 106 N. W., 698 (Mich.). Section 14 : "Property of the companies enumerated in this act to be taxed at average rate of taxation as com- puted in Sec. 13, as assessed When tax roll to be certified to Form of certificate Tax roll deliv- ered to auditor general When taxes payable "The said taxes shall be in lieu of all taxes for state and local purposes," not including special as- sessment for particular benefits, etc. This section has been declared constitutional in the recent decision of the Supreme Court of Michigan in Atty. General v. State Board of Assessors, R. R. Cos. intervenors (decided Feb. 26, 1906), 106 N. W., 698. The law in question, as applied to car companies, means that such cars as have a situs in the state, al- though engaged in interstate commerce, shall be avail- able for taxation. In Vol. 1, Desty on Taxation, p. 322, Sec. 67, it is said: ' ' The situs of personal property, whether tangi- ble or intangible, for the purposes of taxation, un- less otherwise provided by statute, is the place of residence of the owner; the only exception being ivliere the property is employed in business or is in the hands of an agent of the owner having an actual situs, different from the domicile of the owner/' etc. 894 In R. R. Co. v. Pennsylvania, 15 Wall., 323, it is said: "Actual situs of personal property, which has a visible and tangible existence, and not the domi- cile of owner, will in man} r cases determine state in which it may be taxed." In Century Diet, and Encyclopedia, Vol. VIT, page 5661, situs in law is defined as "a situation in con- templation of law ; ' ' locality, actual or recognized : the jurisdiction within which the property is located. ' The question remains whether it is competent for the legislature of a state to impose a tax upon property which has no permanent situs within the state where such property is continually changing according to the exigencies of a particular business. It is now settled by the adjudications of the United States Supreme Court that such a tax is valid. It is, of course, beyond the power of a state to levy any tax upon interstate commerce, but the state may tax property having a situs within its borders even though such property is used in interstate commerce transactions. The tax is not considered as a tax upon the commerce itself, but as a property tax. Anywhere, as above stated, the tax is levied upon property which is continually changing and which is sometimes within the state and sometimes' not, the tax may be arrived at by estimating the aver- age amount of property within the state during a par- ticular period. American Refrigerator Co. v. Hall, 174 U. S., 70. W. U. Tel. Co. v. Massachusetts, 125 U.'S., 530. Pullman Pal. Car Co. v. Penn., 141 U. S., 18. Adams Express Co. v. Ohio, 165 U. S., 194. Marye v. B. & 0. R. R. Co., 127 U. S., 117, 123. Gray's Limitations in the Taxing Power, p. 59. In American Refrigerator Co. v. Hall, supra, the principal authorities are reviewed. The facts there were as follows: The Eefrigerator Company was a corporation organized under the laws of the State of Illinois. Its business was the transportation of per- ishables in refrigerator cars. At the trial the parties agreed to the following stipulations (p. 71) : 895 1. That the Refrigerator Company was organized under the laws of the State of Illinois, with its prin- cipal office in that state. That it is engaged in the business of furnishing refrigerator cars for the trans- portation of perishables over the various railroads of the United States. That it has never had and has not any contract of any kind whatever by which any of its cars were to be leased or alloted to any rail- road operating within the State of Colorado; "that it has and has had during said times no office or place of business, nor other property than its cars within the State of Colorado, and that all the freight transported in plaintiff's cars in or through the State of Colorado, including the cars assessed, was trans- ported in such cars either from a point or points in a state of the United States outside of the State of Colorado to a point in the State of Colorado, or from a point in the State of Colorado to a point outside of said state, or between points wholly outside of the State of Colorado, and said cars never were run in said state in fixed numbers nor at regular times, nor as a regular part of particular trains, nor were any cer- tain cars ever in the State of Colorado, except as en- gaged in such business aforesaid, and then only tran- siently present in said state for such purposes." The court reviewed the authorities, and said (p. 82): "It having been settled, as we have seen, that where a corporation of one state brings into an- other, to use and employ, a portion of its movable personal property, it is legitimate for the latter to impose on such property, thus used and employed, its fair share of the burdens of taxation imposed upon similar property used in like way by its own citizens, we think that such a tax may be properly assessed and collected, in cases like the present, where the specific and individual items or prop- erty so used and employed were not con- tinuously the same, but were constantly chang- ing, according to the exigencies of the business, 896 and that the tax may be fixed by an appraise- ment and valuation of the average amount of the property thus habitually used and employed. Nor would the fact that such cars were employed as vehicles of transportation in the interchange of interstate commerce render their taxation invalid. Mart/e v. Baltimore & Ohio Railroad, 127 U. S., 117; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S., 18." See, also, State v. Union Tank Line Co., 102 N. W., 721 (Minn.). I am of the opinion that the act in question is a valid and constitutional enactment. If, therefore, the Barrett Mfg. Co. come within the terms of the law it should furnish the information required by Section 6 of the act above quoted. On July 24, 1901, I rendered an opinion to the Illi- nois Zinc Company in reference to a similar law passed by the legislature of Indiana. I then stated that if the Zinc Company was not doing business in Indiana, but merely shipped its own goods from Illi- nois to Indiana, in its own cars, and the cars when emptied were returned to the principal place of busi- ness of the company in Illinois, and were not used in any other way, and the Zinc Company did no other business of any kind in Indiana, that in such a case the situs of the cars was in Illinois and not in Indiana, and therefore the Zinc Company did not come within the purview of the act in question. If the methods of doing business pursued by the Bar- rett Mfg. Co. in Michigan are similar to those then pursued by the Zinc Company in Indiana, I am of the opinion that the Michigan law need not be com- plied with, but if, as above stated, the Barrett Mfg. Co. are within the terms of the law, it should be com- plied with. 897 SERVICE OF NOTICE OF DEMAND IN GARNISHMENT AND FOR WHAT PERIOD OF TIME THE EMPLOYER MUST HOLD THE WAGES DUE EMPLOYEES AFTER SERVICE OF NOTICE OF DE- MAND IN GARNISHMENT. (Borden's Condensed Milk Company, July 30, 1906.) "We beg to ask your opinion on the following points connected with the following points con- nected with a demand of garnishment notice : 1st. Does the law require that the written de- mand be served personally on the employer? 2nd. Does the written demand hold valid when sent through the mails to employer? 3rd. Is employer, after the expiration of five days from date of service of notice, released from any liability by paying money to wage earner, pro- vided no additional notices were served in the meantime ? 4th. If a demand notice sent by mail be valid, what time is considered the time of service; the date of notice or the time the notice was received by employer? We inquire for your opinion on these matters that we may know where our liability begins and ceases in the matter of these demands in garnish- ment notices, in order to protect our rights and those of our employes against a possible misuse of same." Section 14 of the Act of March 9, 1872, as amended, provides (Hurd's Rev. Stat., Chap. 62, Sec. 14) : "Before bringing suit a demand in writing shall first be made upon the wage earner and the employer for the excess above the amount herein exempted, and a copy of such demand shall be left with him and with the emplo} r er, having en- dorsed thereon the time of service, at least twenty- four hours previous to bringing such suit. Such notice shall be filed with the justice, or clerk of the court, with the manner and time of the service of the same endorsed thereon, and the return duly sworn to before some officer authorized to adminis- 898 ter oaths before it shall be lawful to issue a sum- mons in such case, or to require an employer to answer in any garnishee proceedings. Any judg- ment rendered without said demand being served upon the wage earner, and so proven and filed as aforesaid shall be void. The excess of wages shall be held by the employer, subject to garnishment by the creditor serving demand, for five (5) days after such service of demand." I am of the opinion that the act above quoted con- templates that the demand upon the employer shall be made by personally leaving a copy of the same at the place of business of the employer. The phrase, "shall be left with him," is equivalent to the phrase "deliv- ered to," and this implies personal service of the em- ployer and not service by mail. This view is strength- ened by the further provisions that "a copy of such demand shall be left with the employer, having en- dorsed thereon the time of service/' and that ' l Such notice shall be filed with the justice with the manner and time of the service endorsed there- on." Service of notice, therefore, by mailing the same would, in my opinion, be insufficient. See: Buck v. Buck, 60 111., 105. Adams v. Wright, 14 Wis., 442. Westfall v. Farwell, 13 Wis., 504. Wilson v. Railway Co., 108 Mo., 588. The employer is required to hold the wages of the employe for five days after the service of the demand as above indicated, and at the expiration of such five days (if he has not been served with summons) he may safely pay over the moneys withheld unless a new notice is received during the five days. 899 WHETHER A NOTE SIGNED BY A WOMAN AS ACCOMMODATION SURETY FOR HER HUSBAND IN KENTUCKY AND PAYABLE IN ILLINOIS IS ENFORCEABLE AGAINST THE MARRIED WOMAN WHEN THE KENTUCKY STATUTES ANNUL THE WIFE'S LIABILITY AS SURETY ON HER HUSBAND'S PAPER. (Hibbard, Spencer, Bartlett & Co., August 1, 1906.) ' ' A customer of ours located in the State of Ken- tucky, gave to us in settlement of his account a note signed by himself and his wife. The note read: 'We promise to pay to Hibbard, Spencer, Bartlett & Co. at their office in Chicago.' The note was signed and delivered to our agent in Ken- tucky, but you will notice that it is payable in Chi- cago. We understand that there is a statutory en- actment in Kentucky which annuls a wife's signa- ture as a surety on her husband's paper. Assum- ing that the note to us was signed for the hus- band's debt, and that the wife signed it only as an accommodation to her husband, could she take ad- vantage of this Kentucky statute to escape liability on the note 1 ? The note was executed in Kentucky, but pay- ment is to be made in Illinois. If we bring suit in Kentucky would the wife's liability be determined by the law of Kentucky or the law of Illinois? If she could under this statute prevent us from recovering a judgment against her could she plead the same defense as against one who has purchased the note from us before maturity for value and without notice that the wife signed the paper as an accommodation!" The Kentucky statute provides (Carroll's Ky. Com- piled Stat., 1903, Chap. 66, Sec. 2127) : "No part of a married woman's estate shall be subjected to the payment or satisfaction of any liability upon a contract made after marriage, to answer for the debt, default or misdoing of an- other, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance." 900 (Chap. 27, Sec. 474): "All bonds, bills or notes for money or prop- erty shall be assignable so as to vest the right of action in the assignee; but except in case of bills of exchange not to impair the right to any defense, discount or offset that the defendant has and might have used against the original obligee, or any intermediate assignor, before notice of the assignment. ' ' Under this statute, the Kentucky courts hold a wife cannot be held for any liabilities assumed as surety for her husband. Deposit Bank of Carlisle v. Stitt, 107 Ky., 9; 52 S. W., 950 (1899). Russell v. Rice, 44 S. W., 110 (Ky.). Crumbaugh v. Postell, 49 S. W., 334 (Ky.). The law applicable to promissory notes executed in one state and payable in another, and having conflicting laws, may be summed up as follows : (1) All matters bearing upon the executing, the interpretation and validity of the note, including the capacity of the parties to contract, are to be deter- mined by the law of the place where the contract is made. (2) All matters connected with the payment, including presentation, notice, demand, protest and damages for non-payment, are to be regulated by the law of the place where by its terms the note is to be paid. (3) All matters respecting the remedy to be pursued, including the bringing of suits, service of process and admissibility of evidence, depend upon the law of the place where the action is brought. (4) A contract must be construed and its validity deter- mined under the law of the state where it is executed, unless it can be fairly said that the parties at the time of its execution clearly manifested an intention that it should be governed by the laws of another state. (5) If a contract is valid in the state where it is exe- cuted, it is valid anywhere. Garrigue v. Keller, 74 N. E., 523 (Ind., 1905). In Scudder v. Union National Bank, 91 U. S., 406, the court says (p. 412) : "Thus whether a contract shall be in writing, or 901 may be made by parol, is a formality to be deter- mined by the law of the place where made. Mat- ters bearing upon the execution, the interpretation and the validity of a contract are determined by the law of the place where the contract is made (First rule). A careful examination of the well considered decisions of this country and of England will sus- tain these positions." In Wharton on Conflict of Laws (Edition of 1905), page 907, it is said : "As between the law of the place where the contract is made and that of the place where it is performable, the weight of authority favors the former. Campbell v. Grampian, 2 Fed., 417. In other words, this matter comes within the first rule of the Scudder case, which for this purpose may be treated as an absolute rule, not dependent upon the intention of the parties. ' ' In Stacy v. Baker, 2 111., 417, it is said : "No principle is better settled than that of the law of the country where the contract is made shall govern its construction and determine its valid- ity." In Union National Bank v. Chapman, 169 N. Y., 538, 57 L. B. A., 513, the question is squarely passed upon. There a note was executed by a married woman in Ala- bama as accommodation surety for her husband. The note was on its face payable in Chicago, and was dis- counted there. By the laws of Alabama this note was void as to the wife, but valid under the laws of Illi- nois. The court held that the note as to the capacity of the parties was governed by the law of Alabama, and hence void as to the wife. Under the decisions re- ferred to the note is invalid as to the wife. Inasmuch as the note in question is void as to the wife, the same rule would apply where the note is trans- ferred to a holder for value, without notice that the wife 's indorsement was as accommodation for her hus- band. I am of the opinion that under the facts above stated no recovery can be had against the wife. Of course, where the parties contract that the laws of a 902 particular state shall control the interpretation of their contract, such agreement will control, but the mere fact that a note is made payable in another state, is not suf- ficient evidence to show that the parties have agreed to be bound by the laws of the state where such note is made payable. Wm. Glenny Glass Co. v. Taylor, 99 Kv., 24; 34 S. D., 711. SUPPLEMENTARY. (Hibbard, Spencer, Bartlett & Co., November 7, 1906.) "Yours of the 2nd inst., enclosing the opinion of Mr. Levy Mayer, dated August 1st., relating to the legality of a Kentucky married woman 's signa- ture to her husband's note received. Will you kindly call Mr. Mayer's attention to the case of Stevens v. Gregg et al., reported in the 12 S. W. Rep., 775 and 89 Ky. Rep., 461, and ask him if this decision, which is a Kentucky case, might not pos- sibly change his opinion. Please refer him also to Goddin v. Shipley, 1 B. Mon. (Ky.), 577." In the opinion of August 1st referred to, I stated where a married woman signed a note as accommoda- tion surety for her husband, in violation of the Ken- tucky statutes, that no recovery could be had thereon against the wife, even though the note was made pay- able in Illinois, where such a contract would be valid, in other words, that the mere fact that such note was made payable in Illinois was not sufficient evidence to show that the parties had agreed to be bound by the laws of Illinois. I am now asked to reconsider the opinion in question on account of the decisions of the Kentucky courts in Stevens v. Gregg, 12 S. W., 775, 89 Ky., 461, and Goddin v. Shipley, 1 B. Mon. (Ky.), 577. I reply thus : It must be borne in mind under the statutes of Ken- tucky referred to in the prior opinion that where a married woman signs a contract as surety for her hus- band the contract of such married woman is absolutely void, unless she binds herself in the statutory mode, 903 and no recovery can be had thereon. In addition to the authorities referred to in the prior opinion, see : Planters' Bank v. Major, 76 S. W., 331; 80 S.W., 1089 (Ky.). Skinner v. Lynn, 51 S. W., 167 (Ky.). Chever v. Glover, 4 Ky. L. R., 360. Magoffin v. Boyle Nat. Bank, 69 S. W., 702 (Ky.). The case of Union National Bank v. Chapman, 169 N. Y., 538, 57 L. E. A., 513, referred to in my prior opinion, squarely holds that a note of the character of the one under discussion is governed by the law of the place where it is made, and that the fact that such note is made payable in another state is not sufficient evidence that the parties agreed to be bound by the laws of that state. Many other cases might be cited to the same effect, among them being: Stansell v. Georgia, etc., Co., 22 S. E., 898 (Ga.). Jackson v. American, etc., Co., 15 S. E., 812 (Ga.). Joslin v. Miller, 15 N. W., 214 (Neb.). Olmstead v. New England Co., 9 N. W., 650 (Neb.). As reference, however, has been made to some Ken- tucky decisions, I will refer briefly to all of the Ken- tucky cases. In Win. Glenny Glass Co. v. Taylor, 99 Ky., 24, 34 S. "W., 711, the glass company instituted a suit against two makers of a note. The note was dated at Washing- ton, D. C., and was payable at a New York bank, and provided for interest at the rate of 8 per cent. The note was executed and delivered by one of the makers at Washington, D. C., and was thereupon mailed by the other payee to the other maker in Kentucky, when it was signed and forwarded to the payee in New York for the purpose of being negotiated. It was contended as by the laws of New York the rate of interest was usurious that no recovery could be had. The court said: ' ' The mere fact that the note was made payable in New York and received by the payee in that 904 city, under the circumstances of this case, is not sufficient evidence of the fact that it was intended the law of that state should govern, or its validity to be tested by the statute in regard to usury." And again: ''It is a question of intention, and all the facts must jbe considered in order to determine what law the parties looked to as controlling their rights under the contract, whether the law of the place where the contract was entered into or the law of the place where it was to be performed ; nor is the rule here recognized in conflict with the cases heretofore decided by this court in Goddin v. Ship- ley, 7 B. Mon., 575 ; Hyatt v. Bank of Kentucky, 8 Bush., 193 ; Young v. Harris, 14 B. Mon., 447." In Rogers v. Raines (Ky., 1896), 38 S. W., 483, the plaintiff was the receiver of a building and loan asso- ciation, a Tennessee corporation. The defendant pro- cured a loan from the association and gave his note therefor, secured by a mortgage. Suit was brought on the note in Kentucky. The note was executed in Kentucky and made payable in Tennesee, and the note and mortgage were there delivered and accepted. The laws of Tennessee allowed the collection of an at- torney's fee when contracted for. The note in ques- tion provided for an attorney's fee. The court said: "The appeal, therefore, presents but two ques- tions for decision: First, whether the contract for attorney's fees, which was valid according to the laws of the state where the contract was by its terms to be performed, is enforceable in this state. This question has been recently decided by this court in the negative. It was held in the case of Clark v. Tanner (decided December 9, 1896), 38 S. W., 11, that the general rule of comity giving effect to contracts beyond the limits of the state where made does not embrace contracts like the one in question. Such contracts come within rec- ognized exceptions to the general doctrine. Those exceptions, as said by Justice Martin in Whiston v. Stodder, 8 Mart. (La.), 95, apply to cases in which the contract is immoral, or unjust, or in 905 which the enforcing of it in a state would be in- jurious to the rights, the interest, or convenience of such state or its citizens. As is said by this court in Witlierspoon v. Musselman, 14 Bush, 214, of such contracts for the payment of attorney's fees. 'They are agreements to pay penalties, tend to oppression of the debtor, and to encour- age litigation.' There was, therefore, no error by the lower court upon this point." See also to the same effect Clark v. Tanner (Ky. 1896), 38 S. W., 11. In Ford v. Buckeye State Insurance Co., 69 Ky., 133 (1869), a contract of insurance was executed in Indiana by an agent of the company which had not com- plied with the laws in relation to foreign insurance corporations. The law provided that such contracts could not be enforced in the courts of that state. Suit was brought in Kentucky by the insurance company to recover on certain premium notes. The court held that as the contract was illegal and void, under the laws of Indiana, it could not be enforced in any other state, unless it was to be performed in another state, where the contract would be legal. In United States Saving & Loan Assn. v. Scott (Ky. 1896), 34 S. W., 235, a resident of Kentucky became a member of a Minnesota loan association doing busi- ness in Kentucky and procured from it a loan at a rate of interest usurious in Kentucky, but legal in Minnesota. The note specifically provided that it was made with reference to the laws of Minnesota. It was held that the transaction was an evasion of the Ken- tucky law and that the usurious interest could be re- covered back. See also: Wharton's Conflict of Laws, Chap 8, pp. 904, 908 (3d ed., Parmele). Andrews v. Pond, 13 Pet., 65. Eager v. The Bank, 105, Ga., 241, 31 S. E., 141. First Nat. Bank v. Shaw (Tenn.) 59 L. E. A., 498. Garrigue v. Keller, 69. L. B. A. 870 (Ind.). 906 I have been referred to the cases of Stevens v. Gregg, 89 Ky., 461, 12 S. W., 775, and Goddin v. Shipley, 7 % B. Mon., 577, as holding a contra doctrine. In Stevens v. Gregg, Stevens exe'cuted a promissory note in Kentucky, payable at a bank at Cincinnati, Ohio. The note was indorsed and delivered to appel- lees in Ohio before maturity for a valuable considera- tion. The defendant pleaded a set off against the original payee, and the question arose as to whether under the Ohio statutes a promissory note stood upon the footing of a bill of exchange, and therefore was not subject to set off while in the hands of an innocent holder. The court said: ''First does the fact that said note was made payable in the State of Ohio impress it with the character of similar paper executed and made payable in said state? The authorities, the deci- sions of this court included, all agree that it does. In Goddin v. Shipley, 7 B. Mon., 577, it is said : 'The general principle that a contract referring, by express terms, to a particular place where it is to be performed, is to receive its construction and legal character and effect from the laws of the place thus referred to, is itself so obviously reasonable, and, on the score of authority, so well established, as to preclude all discussion of its correctness." In Goddin v. Shipley, 7 B. Mon., 575 (Ky. 1847), Shipley sued Goddin on a promissory note. The note was dated at St. Louis, Mo., and was payable at an office in St. Louis. The plaintiff relied on a Missouri statute which enacted that all notes of the character of the note in question should be on the footing of an inland bill of exchange. The defendant proved that the note was in fact executed and indorsed in Ken- tucky, but the court instructed the jury that the laws of Missouri governed. The court said : "The general principle that a contract, refer- ring, by its own terms to a particular place where it is to be performed, is to receive its construction and legal character and effect from the laws of 907 the place thus referred to, is in itself so obviously reasonable, and on the score of authority, so well established as to preclude all discussion of its correctness. Nor is there any room for question- ing that the note in this case comes fully up to the description of the notes to which the 6th section of the statutes of Missouri relates. Indeed, sup- posing St. Louis, in Missouri, to be the place re- ferred to, it might be assumed that the terms of the note were adopted with the express view of bring- ing it fully up to the requisition of that section, and to the very end that it might receive its char- acter and operation from that statute. It is then not only in virtue of the general principle above stated, but by the direct intention of the parties that this note, wherever executed, should be re- garded, as in character and effect, an inland bill, if it referred to St. Louis in Missouri; and if it was in truth, made in Kentucky, the circumstances that it was nevertheless, dated 'St. Louis' proves the more certainly the intention that it should take its character and effect from the laws of Mis- souri. ' ' The court also points out that there was no evidence that the note was actually negotiated, sold or trans- ferred in Kentucky. Goddin v. Shipley (decided in 1847), is referred to in Wm. Glenny Glass Co. v. Taylor, 99 Ky., 24, supra (decided in 1896), where it was squarely held that the mere fact that a note was made payable in a particular state, did not evidence a sufficient intention that the contract should be governed by the laws of that state. And in the Glenny Glass Co. case the court referring to Goddin v. Shipley, said : "Nor is the rule here recognized in conflict with the cases heretofore decided, by this court in God- din v. Shipley, 7 B. M., 575," etc. In the cases of Goddin v. Shipley and Stevens v. Gregg, referred to as holding a contrary doctrine the intention of the parties that the law of the place of per- formance should govern the contract was clearly ap- parent. 908 In Stevens v. Gregg, the note was not only payable in Ohio, but it was indorsed and delivered in Ohio. In Goddin v. Shipley, the note was dated at St. Louis and was payable in St. Louis, and there was no evi- dence that the note was actually negotiated or trans- ferred in Kentucky. In the present case the only evi- dence of an intention to be bound by the Jaws of Illi- nois was the fact that the note was made payable there, and under the authorities above referred to this is not sufficient. Again, in the only two cases cited, and to which my attention is invited by Messrs. Hib- bard, Spencer, Bartlett & Co., neither the validity or legality of the contract, nor the capacity of the parties was involved. The only question was as to the negotia- bility of the note under the laws of the state where it was payable. Those two cases are in no way in con- flict with my prior, nor with this opinion, but if they were the much later and subsequent cases like the Glenny Glass Co. case decided in 1896, would control. In the present case, the note is by the statute of Ken- tucky made absolutely void, and in the absence of evi- dence that the parties clearly intended that the laws of the state, where the note is made payable, should con- trol, I am convinced that no recovery could be had in the present case, and I therefore reaffirm my prior opinion of August 1st. This conclusion is uniformly supported by the leading text writers. Wharton Conflict Laws, 907, et seq. Daniels Negotiable Instruments, 867. 909 THE EIGHT OF STOPPAGE IN TRANSITU WHERE THE VENDOR TAKES OUT A BILL OF LADING IN THE NAME OF HIS VEN- DEE AS CONSIGNOR, AND IN THE NAME OF THE PURCHASER FROM THE VENDEE AS CONSIGNEE; AND AS TO THE EF- FECT OF BANKRUPTCY OF THE VENDEE UPON PAYMENT FOR THE GOODS. (Pilcher-Hamilton Company, August 1. 1906.) "So frequently are manufacturers requested to take bills of lading in the names of their customers, as shippers, we believe many members of the as- sociation would be interested and we would like to have you submit to Mr. Levy Mayer, general counsel, for his opinion the following questions: STATEMENT OF FACTS. "A sends an order for a cardload of paper to B and requests B to ship it to C at St. Louis, Mo., taking the bill of lading in the name of A, the shipper. Before delivery of the car to C at St. Louis a petition in bankruptcy is filed against A. Question I : Does the taking of the bill of lading in the name of A constitute a delivery to A at the point of shipment so as to deprive B of his right of lien under the doctrine of stoppage in transit? Question II : If the bill of lading was issued after the peti- tion in bankruptcy was filed who would be en- titled to the pay for the car from C, the receiver in bankruptcy, A. or B ? Question III: If the bill of lading was issued before the peti- tion was filed who would be entitled to pay from C, the receiver of the bankrupt, or B ! Question IV: In a case similar to the one described in the foregoing statement of facts, what course should B pursue to best protect his interests." The right of stoppage in transitu arises only in favor of one who stands in the relation of vendor to the 910 goods, upon the insolvency of the buyer. The right may be exercised by the vendor or one who stands in that relation, and continues while the goods are in transit until there is actual delivery of the goods to the buyer, or upon his order, or to a bona fide purchaser holding a bill of lading duly indorsed by the buyer. Delta Bag Co. v. Reams, 112 111. App.. 269 (1904). Branan v. Atlantic, etc., R. Co., 33 S. E., 836 (Ga., 1899). The right of stoppage in this instance will depend upon whether B., by taking the bill of lading in the name of A as shipper, and C as consignee, has so far delivered the goods to A and parted with his lien as to divest himself of the right to stop the goods in tran- sit upon the insolvency of A. In Rowley v. Bigelow, 12 Pick., 307 (Mass., 1832), where there was a delivery of corn by the vendor on board a vessel appointed by the vendee to receive it, not for the purpose of transportation to him, or to a place appointed by him to be delivered there for his use, but to be shipped by such vessel, in the vendee's name, to a third person, it was held that this was a termination of the transit, and that the right of the vendor to stop in transitu w T as at an end. In Treadwell v. Aydlett, 65 Tenn., 388 (1872), D. purchased goods of G and directed them to be shipped in his name, as consignor to A; D failed and G at- tempted to exercise the right to stop the goods in transit. It was insisted by G that he was entitled as against D, the insolvent purchaser, to stop the goods before they reached the actual possession of A, to whom they were consigned by IX It appeared that G had nothing to do with A, and did not look to them for payment, but D alone was looked to for payment. The court held that G had lost his right of stoppage in transitu, sayiilg : "If the goods had been carried from the house of Galbreath Putnam to that of Dobbins, Pleas- ants & Co., and there delivered that would clearly have placed them under the dominion and control 911 of Dobbins) Pleasants & Co., and would have put an end to the right of stoppage. If Dobbins Pleasants & Co. had then shipped the goods to Aydlett, Eobinson & Co., at Memphis, there could be no pretense for claiming the right of stoppage. Instead, however, of taking the circuitous course, Dobbins, Pleasants & Co. directed Galbreath &Put- nam to ship the goods to Aydlett, Robinson & Co. at Memphis, and to ship them in the name of Dob- bins, Pleasants & Co., as consignors; and accord- ingly this direction is followed, and the goods shipped with a bill of lading, in the name of Dob- bins, Pleasants & Co., as the consignors. This was a clear and unmistakable exercise of dominion and ownership of the goods, which is wholly inconsist- ent with any right of stoppage on the part of Galbreath & Putnam; when they took the bill of lading in the name of Dobbins, Pleasants & Co., and shipped the goods according to their direc- tions to Aydlett, Robinson & Co., they expressly recognized the right of Dobbins, Pleasants & Co. to control them as owners, and their right to con- sign them to Aydlett, Robinson & Co., and to vest the title of the goods in them, by sending along the bill of lading by which the property in the goods were transferred to the consignees. Upon these facts and circumstances we are of opinion that the Circuit Judge held correctly that Galbreath & Putnam had not the right of stoppage in transitu." In Memphis & L. R. R. Co. v. Freed, 38 Ark, 614 (1882), F., a merchant at Dardanelle, Ark., ordered goods of W. B. & Co., merchants at St. Louis. They sent the order to L. A. & Co. merchants at New Or- leans, with directions to ship the goods to F. at Dardanelle, and to send them the bill of lading. L. A. & Co. filled the order, shipped the goods to F., and sent to W. B. & Co. the bill and bill of lading, which had been taken out in the name of W. B. & Co., and charged the goods to W. B. & Co. During the transit W. B. & Co. failed, and L. A. & Co., claiming the right 912 of stoppage in transits, demanded the goods from the M. & L. E. E. Co., which was transporting the goods. The railroad company surrendered the goods to them. F. then sued the company for the value of the goods. It was held that L. A. & Co. were not the vendors of F. ; that there was no privity between him and them ; that they had no right to stop the goods upon the in- solvency of W. B. & Co.; and that the railroad com- pany was liable to F. for the value of the goods. In Shepard & Morse Lumber Co. v. Burroughs, 62 N. J. L., 469 (1898), the plaintiff sold lumber to T. and T. sold it to the defendant. The lumber was shipped directly by the plaintiff to B., the purchaser from T. The bills of lading named B. as consignee and were sent to T. It was held that upon the in- solvency of T., the plaintiff had no right of stoppage in transitu, on the ground that when T. received the bills of lading he received them for B., his purchaser, and this constituted a delivery of the document of title toB. In Niemeyer v. R: R. Co., 54 Neb., 321, 74 N. W., 70 (1898), D., of Omaha, ordered a bill of lumber of S., of Dallas, Tex. S., not having the lumber in stock, sent the order to N. at Waldo, Ark., requesting him to ship the lumber to D. at Omaha, on account of S., and send him the invoice and bill of lading. This was done. While the lumber was in transit S. failed, and N. noti- fied the carrier not to deliver the lumber. The carrier delivered to D., the consignee, and N. sued the carrier for conversion. It was held that N. was not D.'s vendor, but consignor merely, and could not exercise the right of stoppage in transitu. Other cases are to the same effect : Noble v. Adams, 7 Taunt., 59. Eaton v. Cook, 32 Vt., 58. In Delta Bag Co. v. Kearns, 112 111. App., 269 (1904), the Delta Bag Co., of New Orleans, sold to Daniels & Son, of New York, a carload of burlaps. The car was shipped to Chicago over the Illinois Central and the bill of lading was delivered to Delta Bag Company at New Orleans, in which Daniels & Son were named as 913 consignors as well as consignees. The bill of lading was sent to Daniels & Son, but was never indorsed by them so as to transfer title to a third person. It was held that the Delta Bag Company had the right to stop the good in transit upon the insolvency of Daniels & Son. In Lyons v. Hoffnung, 15 App. Gas., 391 (House of Lords), the purchaser of goods directed the vendors to deliver the goods at a certain wharf to be consigned to the purchaser at a certain point. The vendors de- livered the goods and took receipts from the ship own- ers for the same, which they delivered to the pur- chaser, who exchanged them for bills of lading. It was held that the goods were subject to the right of stoppage by the vendor. It should be noted that it is the real interest on one side as vendor and the liability on the other as vendee which gives the right of stoppage ; not the technical designation of the parties in the bill of lading as con- signor and consignee. The doctrine of stoppage in transitu must be determined strictly according to the decided cases. Under the rules as laid down in the cases above cited I am of the opinion that in the pres- ent instance B., by taking the bill of lading in the name of A., deprived himself of the right of stoppage in transit. It makes no difference as to whether the petition in bankruptcy was filed before or after the bill of lading was issued, as to who would be entitled to pay for the car from C. Under the facts as above stated the re- ceiver in bankruptcy of A. would in either csase be en- titled to collect from C. payment for the car of goods, and B. would be compelled to file his claim in the bank- ruptcy proceedings of A. In a case such as the above a better method for B. to pursue would be to take out a bill of lading in his own name as consignor, and send the bill of lading to C. If he fails to do so, but allows the bill of lading to be taken in the name of A., he does so at his peril and must look to A. for payment. 914 THE LEGALITY, UNDER THE INTERSTATE COMMERCE ACT, OF THE PRIVILEGE OF ALLOWING STOP-OVERS ON GOODS IN TRANSIT. (Illinois Mfrs. Assn., October 8, 1906.) "August 28th the Central Freight Association sent out a circular to the effect that all carriers in the organization had agreed to discontinue the privilege of allowing stop-overs in goods in transit. It has been the custom in some lines, such as agricultural implements, vehicles and stoneware, to allow the manufacturer to stop a car in transit and either add to its contents or remove part. The custom has only applied to carload shipments and has been in effect a great many years. The shipper paid the full rate for the maximum distance and from $3 to $10 for stopping the car. I have been asked for your opinion as to the legality of this stopping privi- lege. ' ' In St. Louis Hay & Grain Co. v. Mobile & 0. R. R. Co., 11 I. C. C. Rep., 90 (May 15, 1905), the Interstate Commerce Commission said (p. 101) : "The stopping of a commodity in transit for the purpose of treatment or reconsigmnent is in the nature of special privilege which the car- rier may concede, but which the shipper cannot, in the present state of the law, demand as a mat- ter of lawful right. Diamond Mills v. Boston & M. R. Co., 9 I. C. C. Rep., 311. Carriers may not, however, discriminate between markets nor between individuals in the granting of such privi- leges. If this right is given to the markets which compete with East St. Louis in this business by these defendants it should prim a facie, also be granted to that market. If these defendants al- low this privilege to the competitors of the com- plainant at East St. Louis they should accord it the same privilege." Special privileges granted by the carriers, such as milling in transit, compressing cotton in transit, re- 915 consigning hay in transit, dressing of lumber, etc., have been held lawful so long as the privilege is granted to all, and no unjust discrimination exercised. Central Yelloiv Pine Ass'n v. F. 8. & P. R. Co., 10 I. C. C. Eep., 193 (1904). Koch v. Penn. R. Co., 10 I. C. C. Eep., 675 (1905). Diamond Mills v. B. & M. R. Co., 9 I. C. C. Eep. 311 (1902). Re Rates & Practices of M. & 0. R. Co., 9 I. C. C. Eep., 373 (1903). Re Unlawful Rates in Transportation of Cot~ ton, 8 I. C. C. Eep., 121 (1899). Laurel Cotton Mills v. G. & S. I. R. Co., 37 S., 134 (Miss., 1904). A. & V. Ry. Co. v. R. R. Commission 38 So., 356 (Miss., 1905). Thus in Koch v. Penn. R. Co., 10 I. C. C. Eep., 675 (April 11, 1905), the Interstate Commerce Commission said : "Shippers are not entitled as a matter of right to mill grain in transit and forward the milled product under the through rate in force on the grain from the point of origin to the place of ulti- mate destination, but allowance of the privilege by a carrier to shippers in one section must be without wrongful prejudice to the rights of ship- pers in another section served by its line." And in Diamond Mills v. Boston & Maine R. Co., 9 I. C. C. Eep., 311 (1902), it was held: "At common law, and under the act to regulate commerce as interpreted by the courts, joint through routes are matters of contract between the connecting carriers, and the defendant, as party to a joint tariff which does not give shippers the privilege of milling in transit, acted within its legal right in notifying its immediate connec- tions and the complainant that it would not per- mit that practice." In Re Rates and Practices of M. & 0. R. Co., 9 I. C. C. Eep., 373 (1903), it is said: "If stop over privileges are granted for any 916 purpose, all the facts and circumstances con- nected therewith should be clearly stated in the published tariff, so that the public generally may enjoy their benefits." The granting of stop overs for carload shipments and allowing the shipper to add to or remove part of the contents is a grant of a special privilege to which the shipper is not entitled as a matter of rights. Previous to the passage of the Hepburn Act amend- ing the Interstate Commerce Act the carrier could not be compelled to grant these stop over privileges. The Interstate Commerce Act as amended now provides (Sec. 15) : "That the Commission is authorized and em- powered, and it shall be its duty, whenever, after full hearing upon a complaint made as provided in section thirteen of this act, or upon complaint of any common carrier, it shall be of the opinion that any of the rates, or charges whatsoever, demanded, charged, or collected by any common carrier or carriers, subject to the provisions of this act, for the transportation of persons or property as defined in the first section of this act, or that any regulations or practices whatsoever of such carrier, or carriers affecting such rates are unjust or unreasonable, or unjustly discrimi- natory, or unduly prefertial or prejudicial, or otherwise in violation of any of the provisions of this act, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged; and what regula- tion or practice in respect to such transporta- tion is just, fair and reasonable to be thereafter followed; and to make an order that the carrier shall cease and desist from such violation, to the extent to which the Commission find the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transpor- tation in excess of the maximum rate or charge so prescribed, and shall conform to the regu- lation or practice so prescribed." 917 I think the privilege can probably be withdrawn. If, however, the withdrawal of stop overs so long- granted is in fact unjustly prejudicial or unreason- able, complaint should be made to the Interstate Com- merce Commission for redress under Section 15 of the act. That involves a question of fact for the Commission to pass upon. AS TO WHETHER UNDER THE INTERSTATE COMMERCE ACT CARRIERS CAN BE COMPELLED TO INTERCHANGE FACILI- TIES AND SWITCHING. (The Weaver Organ & Piano Co., October 12, 1906.) ' ' Do you know whether there is anything in the new law compelling railroads to interchange cars in towns entered by two competitive roads'? In other words, our factory is along the line of the M. & P. R. K. We can have cars placed in front of the factory on this road or by the Pennsylvania E. R., but these railroads will not allow the West- ern Maryland R. R. permission to run their cars on the siding in front of our factory. The Penna. R. R. positively refuses to receive the cars from the Western Maryland. They claim that they are not obliged to allow the Western Maryland to use their terminal facilities even if we do pay a rea- sonable charge for the privilege. If you could make a suggestion that would help us get this privilege, we would appreciate it." In my opinion of March 17, 1905, for the Illinois Manufacturers' Association, I discussed at length the question as to whether a railroad company is compelled to receive cars from a connecting carrier or to allow the use of its tracks or terminal facilities to another car- rier. To that opinion I refer. At common law a carrier is free to enter into ar- rangements for the use of its tracks or terminal with one or more connecting lines to the exclusion of others, and in making such arrangements it does not subject 918 itself to the charge of giving undue preference or ad- vantages. Oregon Short Line v. No. Pac. R. Co., 51 Fed., 465. A. T. & S. F. R. Co. v. V. D. N. & 0. R. Co., 110 U. S., 667. And under the Interstate Commerce Act prior to the passage of the Hepburn Bill amending the Act, it was generally held that a carrier may grant certain facilities to one connecting carrier and refuse the same to another, without subjecting itself to a charge of discrimination. This conclusion was based on the provision of the second paragraph of Section 3 of the Interstate Commerce Act in reference to the inter- change of facilities that "this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business." Thus the Interstate Com- mission in R. R. Commission of Kentucky v. L. & N. R. Co., 10 I. C. C. E.ep., 173, said (p. 188) : "Probably the framers of the act to regulate commerce supposed that the third section would compel, under certain cimcumstances, such inter- change of cars. A moment's thought will show that every such exchange is a matter of contract be- tween the parties in which the terms and condi- tions upon which the exchange shall be made are specified, and it is apparent to one at all ac- quainted with railway operations that to arbi- trarily compel the interchange of cars under all circumstances would be unjust. The act to regu- late commerce provides no means for determining when carriers shall be compelled to make this in- terchange, or for fixing the conditions upon which it shall be made, and in construing that act the courts have, with practical unanimity, held that carriers were still free to make arrangements of this sort by contract among themselves, and that there was nothing in the act which authorized either the Commission or the courts to compel one railroad company to deliver its cars to another. Kentucky & I. Bridge Co. v. Louisville & N. R. 919 Co., 2 Inters. Com. Rep., 351, 2 L. R. A., 289, 37 Fed., 567; Oregon Short Line & U. N. R. Co. v. Northern P. R. Co., 4 Inters. Com. Rep.. 249, 51 Fed., 465; Little Rock & M. R. Co. v. St.' Louis & S. W. R. Co., 4 Inters. Com. Rep., 854, 26 L. R. A., 192, 11 C. C. A., 417, 27 U. S. App., 380, 63 Fed., 775. Just what the seventh section may have been intended to accomplish is not certain. Possibly the legislature had in mind that railways might attempt to relieve themselves from its provisions by interrupting traffic at state lines, and thereby deprive it of the character of interstate business. The seventh section may have been intended to prevent this. At any rate we are clear that it adds nothing to the third section in support of this claim of the complainant, and conclude that the, act to regulate commerce does not confer upon this Commission authority to make an order af- firmatively requiring a railway carrier to deliver carloads of interstate freight to a connecting car- rier. This Commission has more than once called the attention of Congress to this state of the law. Second Annual Rep., p. 70, and nearly every re- port since." Sections 3 and 7 of the Interstate Commerce Act are still in force and were not amended or changed by the Hepburn Bill. Section 3 is as follows: "Every common carrier subject to the provis- ions of this act shall, according to their respect- ive powers, afford all reasonable, proper and equal facilities for the interchange of traffic be- tween their lines, and for the receiving, forward- ing, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier, engaged in like business." 920 Section 7 provides : "That it is unlawful for any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, ex- pressed or implied, to prevent, by change of time schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage, or in- terruption was made in good faith for some nec- essary purpose, and without any intent to avoid or unnecessarily interrupt sijch continuous car- riage or to evade any of the provisions of this act." Under these sections it is lawful for the carries to refuse to grant to other carriers the use of its terminal facilities or tracks. The carrier can not be compelled to accept the loaded cars tendered by a connecting line, although it must accept for transportation the goods shipped in the cars. Section 15 of the Interstate Commerce Act, as amended, provides: "The Commission may also, after hearing on a complaint, establish through routes and joint rates as the maximum to be charged and pre- scribe the division of such rates as hereinbefore provided, and the terms and conditions under which such through routes shall be operated, when that may be necessary to give effect to any provisions of this act, and the carriers complained of have refused or neglected to voluntarily estab- lish such through routes and joint rates, provided no reasonable or satisfactory through route exists, and this provision shall apply when one of the connecting carriers is a water line." Section 1 of the Interstate Commerce Act, as amended, provides : 921 "Any common carrier subject to the provisions of this act, upon application of any lateral, branch line of railroad, or of any shipper tendering in- terstate traffic, for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and mainte- nance of the same ; and shall furnish cars for the movement of such' traffic to the best of his ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such swith or connec- tion as aforesaid, on application therefor in writ- ing by any shipper, such shipper may make com- plaint to the Commission, as provided in section thirteen of this act, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable compensation there- for, and the Commission may make an order, as provided in section fifteen of this act, directing the common carrier to comply with the provisions of this section in accordance with such order, and such order shall be enforced as hereinafter pro- vided for the enforcement of all other orders by the Commission, other than orders for the pay- ment of money. ' ' I am of the opinion, however, that these additional provisions do not give the Interstate Commerce Com- mission power to compel the M. & P. B. R. Co. or the Pennsylvania R. R. Co. to allow the use of their tracks or terminal facilities to the Western Maryland R. R. in order to run its cars on the siding in front of the factory of the Weaver Organ & Piano Company. However, it is the duty of the Pennsylvania R. R. to receive freight tendered it by the Western Maryland R. R. destined to your factory, and also to accept 922 freight from your factory to be delivered to the West- ern Maryland B. B. And under Section 15 of the act, above quoted, if the Pennsylvania B. B. Co. will not enter into a through rate with the Western Maryland for carload shipments, complaint should be made to the Interstate Commerce Commission, which has power to "establish through routes and joint rates * and the terms and conditions under which such through rates shall be operated." On the other hand, I am of the opinion that the Pennsylvania B. B. or the M. & P. B. B. cannot be forced to allow the West- ern Maryland B. B. itself to deliver its cars over their tracks to the siding, nor can the M. & P. B. B. or the Penn. B. B. be compelled to receive empty cars from the Western Maryland B. B. to be delivered to the siding at the factory on the M. & P. B. B. AS TO WHETHER RAILROADS PERFORMING TERMINAL SWITCHING SERVICE CAN BE COMPELLED TO MAKE THROUGH ROUTES AND RATES UNDER THE INTERSTATE COMMERCE ACT; AS TO WHAT DELIVERY CAN BE RE- QUIRED UNDER AN INTERSTATE RATE TO CHICAGO ; AS TO WHAT ARE THE LEGAL SWITCHING RATES UNDER THE ILLI- NOIS MAXIMUM RATE SCHEDULE ; AS TO WHAT DELIVERY CAN BE REQUIRED IN PURELY LOCAL INTERSTATE SWITCH- ING BUSINESS IN CHICAGO AND IN ILLINOIS, AND AS TO WHETHER A CARRIER CAN ASSESS A PER DIEM CHARGE IN" ADDITION TO A SWITCHING CHARGE. (Illinois Manufacturers' Association, October 12, 1906.) My opinion is asked on a number of questions in reference to terminal charges and through rates under the recent Hepburn Act, etc. I reply to the question seriatim. The first question is : (1) "Can railroads performing only a so- called terminal switching service on given traf- fic be compelled to make and publish through rates on interstate shipments of such traffic, with their connections?" 923 The Interstate Commerce Act as amended by the Hepburn Bill provides inter alia: " (Sec. 1.) That the provisions of this act shall apply " /f to any common carrier or carriers engaged in the transportation of : ' f property wholly by railroad * * from one state or terri- tory * * to any other state or territory * ' Provided, however, That the provisions of this act shall not apply to the transportation of * property, to the receiving, delivering, storage, or handling of property wholly within one state, and not shipped to or from a foreign country from or to any State or Territory as aforesaid * *. The term 'railroad' * :: * shall ' in- clude all switches, spurs, tracks, and terminal fa- cilities of every kind used or necessary in the transportation of the persons or property desig- nated herein * * and all services in connection with the receipt, delivery, * *, and handling of property transported ; and it shall be the duty of every carrier * * to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and rea- sonable rates applicable thereto * ' *. Any common carrier subject to the provisions of this act, upon application of any lateral branch line of railroad, or of any shipper tendering in- terstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral branch line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish suffi- cient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on application there- 924 for in writing by any shipper, such shipper may make complaint to the Commission, as provided in section thirteen of this act, and the Commission shall hear and investigate the same and shall de- termine as to the safety and practicability thereof and justification and reasonable compensation therefor, and the Commission may make an order, as provided in section fifteen of this act, directing the common carrier to comply with the provisions of this section in accordance with such order, and such order shall be enforced as hereinafter pro- vided for the enforcement of all other orders by the Commission, other than orders for the pay- ment of money." " (Sec. 3.) Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiv- ing, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connect- ing lines; but this shall not be construed as re- quiring any such common carrier to give the use of its tracks or terminal facilities to another car- rier engaged in like business." Section 6 relates to the publication of tariffs, etc. It provides: "That every common carrier subject to the pro- visions of this act shall file with the Commission created by this act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between dif- ferent points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep 925 open to public inspection, as aforesaid, the sep- arately established rates, fares and charges ap- plied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places be- tween which property and passengers will be car- ried, and shall contain the classification of freight in force, and shall also state separately all ter- minal charges, storage charges, icing charges, and all other charges which the Commission may re- quire, all privileges or facilities granted or al- lowed and any rules or regulations which in any wise change, affect or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. ' ' Section 15 provides: "That the commission is authorized and em- powered * * * whenever * * any of the rates or charges whatsoever, demanded, charged or col- lected by any common carrier * * : * for the trans- portation of * * : cents per hundredweight, which would have been the pro rata of a through rate. The question presented to the court was whether Porter had the right to take advantage of the situa- tion, viz. : the interstate rate from Erin to Brinkley and the railroad commission rate from Brinklev to 969 Stuttgart, in order to secure a rate through to the lat- ter place at less than the interstate rate fixed between the two points. The court held that was an interstate commerce shipment and that the benefit of the local state rate could not thus be obtained, saying : "The question we are dealing with here is whether the state commission rate can be de- manded and enforced in favor of the shipper on a consignment which was, in fact, intended to be a continuous interstate shipment, but which has been interrupted inside of the state for the sole purpose of evading the interstate rate. We say that it cannot be done. The consignment is an interstate transaction, and continues to be such until the final destination is reached." The shipper was held liable for the amount of the rate at 22 cents per hundred. In Cutting v. Florida Ry. & Nav. Co., 46 Fed., 641 (1891), it appears that in 1888 certain orange growers in Florida, in shipping their fruit from points within the state, desined to northern and western cities, would ship from one point to another point in Flor- ida, consigned to their agent at the latter point, for reshipment, who immediately forwarded them to their destination in another state. The Florida Railway Commission had established exceedingly low rates on citrus fruits within the state, and the resultant combi- nation of the domestic rate with the interstate rate was a much lower rate than the through interstate rate from the point of shipment. It was in order to take advantage of this situation that the method of reconsigning shipments was adopted. The Florida Railway and Navigation Com- pany refused to recognize the rates established by the railway commission, and the shippers in routing their cars paid the freight charges under protest. The court said: "After December 1st, 1888, in pursuance of an arrangement among orange growers to that end, and with a view to characterize the shipments 970 i as local commerce entirely within the state, so as to claim for such shipments the rates given by the railway commission of the State of Florida, intervenors' consignments were made to an agent at Callahan, although the ultimate destination of the fruit was not changed, nor was the manner of transacting the business substantially changed from what it had been December 1st. As before, the receiver furnished the cars to carry the fruit to its ultimate destination. At Callahan the goods were not unloaded, bulk was not broken, nor the cars delayed to any extent. As in the case of through shipments generally, the loaded cars were at once transferred to other carriers, to be for- warded to their destination. In other words, the character of the shipment, was not changed, but after December 1st, as before, the fruit, when loaded on the cars at Citra, was started for and destined to markets in other states, and then and there at Citra began what was in fact one con- tinuous journey to an ultimate destination with- out the State of Florida. The difference in the transaction of the business was solely in calling for a local bill of lading instead of a through >Z bill, the interposition of a forwarding agent, and in prepaying the charges under protest." It was held that the shipment from the growers to the forwarding agent was interstate commerce, and that the shippers could not claim the advantage of the domestic rates established by the Florida Eailway Commission. In States v. Gulf, C. & S. F. Ey. Co. (Tex.), 44 S. W., 542 (1898), there was an action by the State of Texas against the Gulf, Colorado & Santa Fe Ey. Co. to recover the statutory penalty for violation of the tariff rate fixed by the state railroad commission. The railroad commission had established the rate of charges for freight from San Angelo, Tex., to Fort Worth, Tex., at 22 1 /4 cents per hundred pounds for sheep, which was a lower rate than the interstate rate prevailing for so much of an interstate haul as might 971 be made between the same points. In April, 1895, S. G. Long & Co., having 4,500 head of sheep to ship to Kansas City, Mo., and knowing that the shipment could be made at a cheaper rate by shipping them to Fort Worth under the state commission rates and re- shipping them from there to destination out of the state, requested cars for a shipment to Fort Worth. The railroad notified Long & Co. that if the final desti- nation was Fort Worth it would carry at the state commission rate, but if the shipment was found to be intended for a point outside of the state it would not surrender the shipment at Fort Worth until the local rate applicable to interstate business should be paid. It was held that the shipment was interstate and not subject to the rate fixed by the railroad commis- sion. In Houston Direct Nav. Co. v. Insurance Co. of North America, 89 Tex., 1 ; 32 S. W., 899, freight des- tined for Liverpool was billed and shipped by the Nav- igation Co. from Houston to Galveston, and notwith- standing the fact that the Navigation Co. only con- tracted to transport the property from Houston to Gal- veston, still it was held that the Navigation Co. in transporting freight from Houston to Galveston was engaged in interstate commerce. In The Daniel Ball, 10 Wall., 557, 565 (1870), the United States Supreme Court said: "Whenever a commodity has begun to move as an article of trade from one state to another, com- merce in that commodity between the states has commenced. The fact that several different- and independent agencies are employed in transport- ing the commodity, some acting entirely in one state and some acting through two or more states, does in no respect affect the character of the trans- action. To the extent in which each agency acts in that transportation, it is subject to the regula- tion of Congress. * * * Several agencies combin- ing, each taking up the commodity transported at the boundary line at one end of the state and leaving it at the boundary line at the other end, the federal jurisdiction would be entirely ousted 972 and the constitutional provision would become a dead letter." Under the above quoted decisions I am of the opin- ion that the transportation in question constitutes in- terstate commerce, and that the benefit of the lower rate from Chicago to East St. Louis cannot be ob- tained. There is no breakage in bulk of the shipments from outside of the state, and they are reconsigned apparently to obtain the benefit of the lower rate. In words, the goods are temporarily in Chicago in transit upon a through shipment. If, however, the goods had reached Chicago as a final destination and subsequently there was a reshipment, under such circumstances as would show that there was no attempt simply to ob- tain the benefit of the reduced rate, or there was a breakage of bulk, the shipment could be made at the lower rate obtained between Chicago and East St. Louis. The circumstances, character and destination of the shipment largely determine whether it is inter- state commerce, but as the facts are outlined I am of the opinion that the shipments were interstate com- merce, and the claims for any rebate, based on the lower rate from Chicago to East St. Louis, would, if granted, be in violation of the Elkins Act, as amended by the Hepburn Act of 1906, forbidding rebates and discriminations on interstate commerce. As was held in U. S. v. Milwaukee Refrigerator Transit Co., 147 Fed., 247 (1905), it is the manifest purpose of the statutes regulating interstate commerce to strike through all pretence and all ingenious devices to the substance of the transaction, and it is the duty of the courts to recognize and carry into effect such purpose in suits for their enforcement. On the other hand, if the shipment was in fact a separate and distinct shipment, so as to be an inter- state shipment and not a mere continuation of inter- state transit, an overcharge paid under protest could be recovered. 973 II. In my opinion of November 10, 1904, in response to an inquiry from Hunt, Helm & Ferris Co., I dis- cussed the legality of a through rate which is greater than the sum of the two local rates. I refer to this opinion. In Hilton Lumber Co. v. Wilmington & Weldon R. R.,9 Interstate Commerce Reports, 17 (April 10, 1901), the Interstate Commerce Commission passed upon the legality of such a rate, observing: "This seems to be the first case submitted to the Commission during the fourteen years since the regulating statute was passed showing a through freight charge over connecting roads in excess of a combination of charges applying to and from an intermediate point on the through line." In that case it appeared that the local rates on lum- ber from Wilmington, N. C., to Norfolk or Ports- mouth, Va., added to the rates in force from Ports- mouth or Norfolk to Philadelphia, Jersey City and Boston, produced lower aggregate charges than the through rates in effect on lumber carried by the con- necting defendant carriers from Wilmington direct to Philadelphia, Jersey City and Boston via Ports- mouth and Pinner's Point, adjacent to Norfolk. This resulted because the arbitrary or proportion of the through rate from Wilmington exacted by the carriers north of Portsmouth or Norfolk was greater than their rates on shipments from Norfolk or Portsmouth. In its opinion the commission said: (p. 28.) "Through rates frequently equal the sum of locals charged to and from an intermediate locality, and in the south most rates to or from interior non-competitive points are made by tak- ing the rate to or from a competitive point and adding the local between the latter and the non- competitive station ; but it seldom if ever happens that the through rate from an interior non-com- petitive point is made to exceed the sum of the rates to and from any intermediate locality, how- ever strong and controlling the competition at such 974 intermediate point may be. Through rates higher than combinations of local charges are extremely rare in railroad transportation, and those whicli have been brought to our attention have only been approved when occasioned by extraordinary and peculiar circumstances. They have not been jus- tified in any case by the fact of water or other competition at points of junction between the con- necting roads." (p. 29.) "The complainant can ship its lumber to Portsmouth or Norfolk and reship the same therefrom to northern cities at the local rate in force to and from Portsmouth or Norfolk; and when the roads south and north of Norfolk make a through route from Wilmington to the north, operating through cars, providing for through billing, and collection of rates as single charges for the entire service, thereby diminishing the cost of transportation to themselves, a through charge exacted by them which is greater than the sum of such local rates is unreasonable as well as unjustly discriminating and wrongfully prejudic- ial to the complainant engaged in competition with manufacturers in and about the City of Norfolk." As to the legality of application of the combination of the two locals by the shipper, the Commission stated : (p. 35.) "The complainant has the legal right under the tariffs of the Atlantic Coast Line and Seaboard Air Line to ship a carload of lumber from Wilmington to Norfolk or Portsmouth at a rate of 10i/> cents per 100 pounds, and under the tariffs of the New York, Philadelphia and Nor- folk Railroad and its connections on the north complainant 's consignee in Norfolk or Portsmouth has the legal right to ship that same lumber from that point to Philadelphia, Jersey City or Bos- ton at 8, 9 and 15 cents per 100 pounds, respect- ively. There is nothing to prevent the complain- ant from shipping the lumber to itself at Norfolk or Portsmouth and having the reshipment made 975 for its own account. Indeed, it might, for example, ship over the Seaboard Air Line to Portsmouth to its own order, direct delivery to the New York, Philadelphia and Norfolk, and by separate order direct the New York, Philadelphia and Norfolk to ship the car to Philadelphia, Jersey City or Boston. The Seaboard Air Line could, it is true, refuse to permit its car, thus used for a local ship- ment to Portsmouth to be sent north on reship- ment, notwithstanding the same car might be em- ployed in a through shipment from Wilmington, but if it took that position it would be with a view of preventing the complainant or other Wilming- ton shipper from utilizing a lower combination of rates, and not for any justifiable traffic purpose." The Commission held that the through rates from Wilmington to Philadelphia, Jersey City and Boston, to the extent that they exceeded the sum of rates from Wilmington to the northern destinations mentioned, were in violation of the third section of the Interstate Commerce Act, which prohibits any undue or unrea- sonable preference or advantage to any particular person or locality, or to any particular description of traffic, and also of the first section of the Act, pro- viding that all charges shall be reasonable and just. And it was also held that in charging a through rate which exceeds the sum of the locals by reason of the fact that the proportion from Portsmouth north ex- ceeds the local from that point, the carriers violated the second section of the Act, prohibiting unjust dis- crimination between persons similarly circumstanced and conditioned. From the report of the Interstate Commerce Commission, filed with the Senate Commit- tee on Interstate Commerce, April 19, 1905, it appears that the carriers complied with the order in this case. In R. R. and Warehouse Commissioners v. Eureka Springs Ry. Co., 1 1. C. C. Rep., 69, the defendant car- ried passengers between Seligman, Mo., and Eureka Springs, Ark., 18^ miles, at the rate of 10 cents a mile. The Arkansas statute limited the passenger fare in that state to 5 cents a mile, and under the Missouri law but 4 cents a mile could be charged in that state. The 976 Commission ordered that the through rate should not exceed $1.20 (6y 2 cents per mile). Under such maxi- mum the through rate, amounting to 82^ cents, was still in excess of the combined state rates. This was permitted in view of the small earnings of the carrier, and because no relative injustice between localities re- sulted. In another case, Savannah Bureau of Freight and Transportation v. C. & S. Ry. Co., 7 I. C. C. Rep., 601, the passenger rate between Savannah, Ga., and Charleston, S. C., was greater than the combination of rates allowed by Georgia and South Carolina, and it was made so by an act of the South Carolina legisla- ture limiting the rate within that state of 314 cents per mile. It was held that the Interstate Commerce Act contained no provision under which the interstate fare must necessarily be reduced because the South Car- olina mileage rate was lowered by the State Act, or might be raised according to a different mileage rate which might be fixed by the State Commission. There was no suggestion in the case of relative injustice or undue advantage to any person or locality. In Ariz v. Seaboard Air Line Ry., 11 I. C. C., 458 (Nov. 20, 1905), complaint was made that the through interstate passenger rate between Fernandina, Flor- ida, and Savannah, Ga., exceeded the sum of the local state fares over the same route. The through rate for 124 miles was $5.00, or about 4 cents per mile, while a rate of 3 cents per mile was fixed by state authority for fares within the states of Florida and Georgia. It was held that while ordinarily the through interstate passenger fare should not exceed the sum of local fares, there is no specific requirement in the regulat- ing statute to that effect, and that in this case the only question for determination was whether the fare was unreasonable. Under the peculiar circumstances of the case in question (such as the meager earnings and high cost of operation) the fare was held a valid one. A similar question arose in Brabham v. Atlantic Coast Line R. Co., 11 I. C. C., 464 (Dec. 7, 1905), and through passenger fares from Ellenton and Jackson, 977 S. C., to Augusta, Ga., were sustained which were higher than the local maximum rates fixed by the state authorities in South Carolina and Georgia. In Hope Cotton Oil Co. v. Texas & Pacific Ry. Co., 10 I. C. C. Rep., 696 (April 24, 1905), the complainant desired to ship cotton seed in carloads from Louisiana stations on defendant's line to Hope, Ark., at the sum of the local rates based upon Texarkana, Ark., which sum was less than the published through charge, but defendant refused to apply its local rates to Texar- kana of 12Vi> cents per 100 pounds on such through ship- ments, and also refused to allow complainant to ship locally to Texarkana under the 12i/> cent rate in force to that point. It was held that while the defendant was entitled to insist upon the application of the through rate to the through shipment to Hope, it could not lawfully refuse to receive and carry complainant's freight to Texarkana under its local rate to that point, and that the complainant was entitled to reparation for damages to the amount of $2,240 resulting from its inability to ship 640 tons of cotton seed to Hope, which it had contracted for and desired to have transported over defendant's line. In Spillers & Co. v. L. <& N. R. Co., 8 I. C. C., 364 (Nov. 29, 1899), the defendant instructed its agents to disregard the regular published tariff rates to Gallatin, and to charge the lower combination of rates to and from Nashville. It also had this rule of applying com- bination rates, when less than tariff rates, in force at other stations on its line. Instructions to that effect were issued in a separate printed circular, and did not appear nor were they referred to in any way upon its regular published tariff. It was held that this practice was unlawful, and that to be in compliance with the Act, any rule which operates to alter, modify or change established rates must be fully and clearly set forth upon the published tariffs of rates and charges to be affected thereby. The Interstate Commerce Act, as amended in 1906, now provides (Sec. 6) : "That every common carrier subject to the pro- 978 visions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between dif- ferent points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line or by water, when a through route and joint rate have been established. If no joint rate over the, through route has been established, the several carriers in such through route shall file, print and keep open to public inspection, as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or fa- cilities granted or allowed, and any rules or reg- ulations which in any wise change, affect, or de- termine any part or the aggregate of such afore- said rates, fares and charges, or the value of the service rendered to the passenger, shipper or con- signee. ' ' And also : "No carrier, unless otherwise provided by this Act, shall engage or participate in the transporta- tion of passengers or property, as defined in this Act, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such trans- portation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares and charges which are specified in the tariff filed and 979 in effect at the time ; nor shall any carrier refund or remit in any manner or by any device any por- tion of the rates, fares and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tar- iffs; Provided, That wherever the word 'carrier' occurs in this Act, it shall be held to mean 'com- mon carrier.' " The Elkins Act, as amended in 1906, now provides : "Whenever any carrier files with the Inter- state Commerce Commission or publishes a par- ticular rate under the provisions of the Act to reg- ulate commerce or Acts amendatory thereof, or participates in any rates so filed or published, that rate as against such carriers, its officers or agents, in any prosecution begun under this Act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this Act." An anomalous situation exists where the through rate is greater than the combination of the locals. If a joint through rate is established, the tariff must be filed with the Interstate Commerce Commission and such ' ' particular rate ' ' becomes the legal rate between the points in question. At the same time each carrier must file its tariffs of local rates, and as between the local points, such rates are legal rates. But at the same time no carrier can lawfully exact unreasonable and unjust rates. There is then in fact two legal rates between the same points ; one the through rate, and the other the rate made by the combination of the interme- diate rates. A departure by the carrier from the pub- lished through rate on a through shipment between the particular points on which the rate applies is illegal, and at the same time a departure by the carrier from the published intermediate rates is illegal. In U. 8. v. Wood, 145 Fed., 405 (April 2, 1906), which was a criminal prosecution for the acceptance of re- bates, the court said in charging the jury : 980 1 i Under the original Act, as amended in 1889, as to the carrier, any deviation from the joint rates specified in the schedule filed was unlawful, and the Elkins Act so amended this as to the carrier that any departure from a joint tariff filed by it, or any departure from a joint tariff published by it, or any departure from a joint tariff filed or published in which it participated in the rate so filed or published, was made lawful. That part of the Elkins Act which makes it unlawful for the carrier to offer, grant, or give any rebate, conces- sion or discrimination in respect to the transpor- tation of property, whereby any such property shall by any device whatever be transported at a less rate than that named in the tariff published and filed, may be extended by the subsequent clause as to the carrier so as to make it unlawful to offer, grant or give a rebate on joint tariffs in which such carrier participated, but as to the ship- per or person receiving a rebate, the tariff must be filed and published. In other words, it may be unlawful for a carrier to give a rebate, concession or discrimination on a joint tariff filed by it, or on a joint tariff published by it, or on a joint tariff in which it participated when filed by another, or on a joint tariff in which it partici- pated when published by another, but it is only un- lawful for a shipper to receive a rebate on a joint tariff which is both fled and published. The Act. so construed, works no injustice to either the car- rier or the shipper. The carrier knows whether it has either filed or published a joint rate, or whether it has participated in a joint rate filed or published by another, and if it departs therefrom it does so wilfully and with knowledge ; and if a shipper receives a rebate on a joint tariff which has been both filed and published, it does so with notice of the lawful rate, and as to him, when the rate is filed and published, he is bound to take no- tice, and the law will not excuse him if he fails to inform himself when the opportunity is afforded, 981 which the law provides by requiring the filing and the publishing of the rates for his informa- tion." I am of the opinion that where a through shipment is made between the particular points, the through tariff rate filed and published as to such points must govern. But at the same time, a shipment may le- gally be made applying the combination of the inter- mediate rates by shipping the goods to the interme- diate basing point, and there reconsigning them to des- tination. The shipment can the'n take the legal pub- lished rates applicable between the points. But if one of the intermediate rates is applicable only to shipments within the state and not to interstate com- merce shipments (as when the rate is fixed by the state statute or by state authorities), then if the shipment is interstate commerce, advantage cannot be taken of the local rate, as stated in response to the first in- quiry. When the through rate is greater than the combina- tion of intermediate rates over the same route, prima facie, the through rate is unreasonable. The proper course to pursue in such a case is to make complaint to the interstate Commerce Commission. There may of course be peculiar circumstances in some cases which justify a higher through rate, but the burden will be on the carrier to justify the rate. Under the present law the Interstate Commerce Commission lias power to determine joint and through rates, and a formal com- plaint to the Commission may result in the correction of the through rate. But in this connection it should be noted that the Interstate Commerce Commission has announced the following ruling in Tariff Circular No. 5A. (Act 12, 1906) : "Where a joint rate is in effect by a given route which is higher between any points than the sum of the locals between the same points, liy the same or another route, such higher joint rate may, until December 31, 1906, be changed by reducing the same to the sum of such locals, but not otherwise, upon posting one day in advance a tariff of such 982 reduced rates and mailing a copy thereof to the Commission. ' ' Under this ruling of the Commission, I advise that in any case where the through rate is greater than the sum of the locals, the carrier should be requested to reduce the rate in accordance with the above ruling of the Commission, and if the carrier then refuses to com- ply complaint should be filed with the Commission. To the extent, however, that I have stated, the com- bination of the locals (that is consign to an intermedi- ate point and from there reconsign by a different road) may also legally be availed of, but on a direct ship- ment between two points the through rates should be paid under protest. If it is inconvenient or imprac- ticable to apply the combination rates in the manner above stated (by reconsigning from an intermediate point over a different road) the through rate should be paid under a proper protest, and an action then instituted against the carrier for reparation based upon the unreasonableness of the through rate. B. NOTE. Since giving the above opinion, the Inter- state Commerce Commission has made the following announcement in Tariff Circular No. 6-A. (Nov. 16, 1906). ' ' Many informal complaints are received in con- nection with regularly established through rates which are in excess of the sum of the locals be- tween the same points. The Commission has no authority to change or fix a rate except after full hearing upon formal complaint. The Commission announced in its Tariff Circular No. 5-A of Oc- tober 12, 1906, a rule permitting practically im- mediate reduction of a through rate which is higher than the sum of the locals between the same points. It is believed to be proper for the Com- mission to say that if called upon to formally pass upon a case of this nature it would be its policy to consider the through rate, which is higher than the sum of the locals between the same points, as prim a facie unreasonafSle, and that the burden of 983 proof would be upon the carrier to defend such higher through rate." NOTE: In an opinion of July 13, 1907 (The Crane Company), this question is again discussed in view of the ruling of the United States Supreme Court in Gulf, Colorado $ Santa Fe By. Co. \. Texas, 204 U. S., 403 (Feb. 25, 1907). See, also, an opinion of Nov. 26, 1907 (Latrobe Steel & Coupler Co.) on the right to reconsign ship- ments in order to obtain benefit of sum of two local rates, which are less than the joint through rate. The question is also discussed in Kansas City So. By. Co. v. Brooks, 105 S. W., 93 (Ark., Oct. 28, 1907). Ed. THE DUTY OF A CARRIER TO SUPPLY GRAIN DOORS FOR CARS USED FOR THE SHIPMENT OF STONEWORK. (Western Stoneware Company, December 10, 1906.) "Will you kindly take up with your legal de- partment the question of furnishing grain doors for the loading of stoneware (pottery) in cars. Some of the roads refuse to furnish us grain doors so as to properly load cars and yet compel us to load cars at their minimum capacity. Our goods are of such nature that they cannot be loaded and properly protected unless we have grain doors to keep the ware away from the regu- lar doors of the car. Kindly advise us if it is the duty of the railroad companies to provide proper facilities for handling the freight, or if we are compelled to furnish the boards for this purpose, could we legally collect from the railroad com- panies claims for the cost of the lumber?" It is the duty of a carrier to furnish for the trans- portation of the shipper's goods cars which are safe and suitable for goods of the character of those to be transported. Hutchinson on Carriers (2nd Ed.), sees. 292, 295a C.<& A. R. Co. v. Davis, 159 111., 53. T. H. & I. Co. v. Crews, 53 111. App., 50. 5 Am. Eng. Enc. Law (2nd Ed.), 175. Beard v. St. Louis, A. & T. H. R. R. Co., 79 la., 527. 984 Burk v. U. S. Express Co., 87 111. App., 505. International, &c., R. R. v. Aten, 81 S. W., 346 (Tex. Civ. App.). In Sloan v. St. Louis, &c., R. Co., 58 Mo., 220 (1874), there was an action by a shipper of hay to recover for standards voluntarily erected by him upon flat cars for safety of transportation. It appeared that the plaintiffs were shippers of hay, and the cars furnished by the railroad were flat cars without standards, and the plaintiffs, believing that hay could not be carried on such cars without standards, had standards put on them at a cost of about $70. Suit was brought to re- cover the value of the standards thus placed on the cars. It was held that the railroad company was not liable, the standards having been erected without any contract with the company ; and the court further said that while it was the business of common carriers to have suitable vehicles for the transportation of the freight shipped, and they are liable for losses occurring in consequence of defects in this regard, still the car- rier is the judge of the sufficiency of the cars in which it is proposed to carry freight. The Illinois Railroad and Warehouse Commission, Classification No. 10 (July 1, 1906), Rule 21, provides as follows : "The following allowances for weights of racks and blocks used in securing freight placed on open cars will be made when actual weight cannot be ascertained, viz. : For racks, 1,000 Ibs. ; for blocks, 500 Ibs. ; for racks and blocks where both are used, 1,000 Ibs. Companies will not be responsible for removal of or damage to temporary racks, and it will be optional with them to remove or return such temporary racks to shippers if not taken by consignees. ' ' Similar provisions are in the Western Classification (Rule 13), in the Southern Classification (Rule 28, ap- plying also to linings placed in cars by shippers), and in the Official Classification (Rule 19a, likewise apply- ing to linings placed in all cars by shippers). In State ex rel Washington Mill Co. v. Gt. Northern 985 Ry Co., 86 Pac., 1056 (Wash., Sept. 13, 1906), the court considered an Act of the State of Washington (Acts 1905, p. 238), fixing the weight of ''standards," etc., used in cars for the shipment of lumber, at 1,000 pounds, and requiring such weight to be deducted from the net weight of lumber shipped, so the freight shall be charged only on the cargo, and held it unreasonable and void, as requiring free carriage of freight, and therefore a taking of property without due process of law. The court said (pp. 1056-7) : "The lower court held that section 2 of the act above referred to was unconstitutional, because it requires the respondent to carry freight on each car free of charge, and is therefore a taking of property without due process of law. We think this position must be sustained. If the Legislature may say that the carrier must deduct 1,000 pounds from the net weight carried, then there is no limit to which it may not go. This arbitrary deduction is not based upon the right to regulate the rates of freight because such rates must necessarily be based upon the actual weight or bulk carried. There can be no doubt that it is the duty of a com- mon carrier to furnish cars suitable for what is carried, and the carrier is liable in damages for a failure of its duty in this respect. Emerson v. St. Louis & H. Ry. Co., Ill Mo., 161 19 S. W., 1113; Beard v. Illinois Central R. Co., 79 Iowa, 518; 44 N. W., 800; 7 L. E. A., 280; 18 Am. St. Rep., 381. This duty is conceded by the respondent, and the authority of the Legislature to provide for a suit- able equipment is not questioned in the case. When the Legislature defines by statute what shall constitute a reasonable or proper equipment, it cannot go further and arbitrarily fix the weight of such equipment, and then say the weight thereof shall be deducted from the net weight of freight carried on the car, because the equipment is no part of the freight carried. If the Legislature may provide for deducting the weight of the equipment 98(5 from the net weight of the freight, it may for the same reason deduct the weight of the car from the weight of the freight, and thus require the carrier to carry freight to the amount of the weight of the car and equipment free." And (p. 1058) : "Furthermore, the act makes no distinction be- tween the case where the shipper furnishes the standards and where the carrier furnishes them. In either event section '2 requires 1,000 pounds to be deducted from the net weight of the lumber car- ried on each car, and freight shall be charged on the balance only. This is clearly not a reasonable regulation, and if the Legislature intended that the shipper should furnish the standards, etc., and have the weight thereof deducted, the language used does not express that idea. The case is argued here upon the theory that, under the admit- ted facts, the respondent is required to carry 400 pounds of freight free. It may be doubted that the validity of a statute may be said to depend upon the admissions of a party or the facts in a particular case. We do not base this decision upon the facts pleaded and admitted. It rests upon the statute itself, which plainly provides an arbitrary weight for standards, etc., which the first section makes a part of the car and which the sec- ond section requires to be deducted from the net weight of the freight carried, thus requiring freight to be carried free. For these reasons, we are satisfied that section 2 of the act is in contra- vention of section 1, Amend. Art. 14, of the Con- stitution of the United States, and is therefore void. ' ' Unless the carriers hold themselves out to the pub- lic as furnishing inside doors or grain doors for the purpose of protecting shipments of similar articles as stoneware while in transit, I am of the opinion that the carrier cannot be held for the cost of such doors to the consignor. It is the duty of the carrier to furnish rea- sonably safe and secure cars for the purpose required, 987 but it is under no obligation to furnish every device in- suring safety of the goods shipped, any more than it can be said it might be the duty of the carrier to fur- nish crates for certain articles shipped in bulk. Of course, if the carrier makes a practice of furnishing grain doors to shippers under these circumstances, it could not refuse to give them to one shipper while it gives them to another. Under the circumstances as stated, however, I am of the opinion that the carrier cannot be held liable for the cost of the grain doors. As to whether the carrier is liable for breakage of goods in transit, presents another question, and is cov- ered by my opinion to the Monmouth Pottery Co., dated August 9, 1904. NOTE: See, also, opinion of Oct. 19, 1907 (Illinois Manufacturers' Association) as to allowance by carriers for dunnage, linings, etc., in cars. Ed. WHETHER A CARRIER IS LIABLE FOR DAMAGES, WHEN IT AC- CEPTS GOODS TO BE CARRIED BY A DESIGNATED ROUTE AND DEVIATES FROM THE ROUTE NAMED IN THE BILL OF LAD- ING. (Lord & Buslmell Company, December 10, 1906.) "We are receiving opinions from General Coun- sel Mr. Levy Mayer and would like now to get an opinion in reference to the following: August 9th, 1905, we shipped from Hyatt, Texas, consigned to ourselves, a car of lumber, and pro- cured a bill of lading from the T. & N. 0. R. R. Co., showing routing via ' C., R. I. & P. at Kansas City. ' Shortly after the car was shipped, we found we could use it to better advantage at Kansas City, and instructed the agent of the C., R. I. & P. Ry. at Kansas City to stop same there and deliver to our customer at that point. The car came through to Chicago and we had to reship same to Kansas City, paying local tariff therefor, and investiga- tion developed the fact that the car did not move over the route specified in bill of lading, but was delivered to the C., B. I. & P. at St. Joseph, Mo., instead of Kansas City. We filed claim against the originating line, the T. & X. 0. R. R., for the additional expense in- curred, basing same on the assumption that they failed to perform their contract, which called for delivery to the C., R. I. & P. at Kansas City, on billing for Chicago. They decline claim for rea- sons set forth in their letter, which reads as fol- lows : 'I beg to return herewith all papers we have ever received from you on the above numbered claim. Examination of the bill of lading shows that there was nothing to indicate that routing via Kansas City was essential to handling the ship- ment in the manner you desire, nor were we ad- vised in any way that you wanted to take advan- tage of a sale at some other point than the desti- nation shown on the bill of lading. For this rea- son, delivery at Chicago was the only essential feature, and we accordingly exercised our well recognized right to route as we saw fit. We there- fore cannot entertain the question of any addi- tional expense caused you in disposing of the ship- ment en route.' We would like to know if the routing in a bill of lading is not an essential part of the contract, whether or not a carrying line has a right to devi- ate from same without regard to the rights of the shipper, and if such deviation is a direct or indi- rect cause of loss to the shipper, if he is not en- titled to damages from the line or lines at fault." Where it is the custom of a railroad company to re- ceive the directions of the shippers and owners of goods to be sent beyond the terminus of their road, if directions are given to forward by a particular line, which are not obeyed, the railroad company will be liable. The shippers and owners have a right to con- trol the destination of their goods. M. S. & N. I. Ey. Co. v. Day, 20 111., 375. Lewis v. G. & C. U. R. Co., 40 111., 281. 989 Strahorn v. Un. St. & Tr. Co., 43 111., 424. L. 8. & M. 8. Ry. v. Live Stock Bank, 178 111., 506, 524. Scotthorn v. So. Staffordshire Ry., 8 Exch., 341 (Eng.). Hutchinson on Carriers (2nd ed.), sees. 337, 337a. 5 Am. Eng. Enc. Law (2nd ed., 214). In Steidl v. M. & St. L. R. R. Co., 94 Minn., 233, 102 N. W., 701 (1905), the plaintiff shipped a carload of potatoes from Perham, Minnesota, over the Northern Pacific Railway, consigned to himself at Oskaloosa, Iowa. A bill of lading was issued containing no direc- tions as to route, but subsequently a valid agree- ment was made adding to the bill of lading that the route of the goods should be over the Minneapolis & St. Louis R. R. to Angus, Iowa, thence over the Rock Island Railroad to Oskaloosa. The shipper did this in order that he might stop the car, if he wished, and sell the potatoes at some point on that route. The car- rier, however, forwarded the car over the B. C. R. & N. R. R. and the plaintiff was compelled to dispose of the potatoes at a lower price than he could have done if they had been carried as directed. It was held that the carrier was liable for the damages caused by not fol- lowing directions. In L C. R. R. Co. v. Foulks, 191 111., 57, where goods were shipped from Malvern, Iowa, to Philadelphia, over the Omaha & St. Louis Ry., via Kanawha Dis- patch, the goods came through to Chicago, and instead of being billed through to Philadelphia all rail, were billed via Clyde line of steamers. The rate sheets showed that such freight so routed must go all rail, and that the Clyde line did not receive such freight. The railroad was held liable for this misbilling. In Mallet v. Great Eastern Ry. (1889), 1 Q. B. 309, the plaintiff delivered to the defendants at Lowestoft certain parcels of fish to be forwarded to Jersey, via the Great Western Railway and Weymouth. Goods sent from Lowestoft to Jersey have to pass through London, from which point to Jersey there are two 990 routes, one by the Great Western Railway and Wey- mouth and the other by the London & Southwestern Railway and Southampton. The carrier sent the fish by the Southampton route instead of the Weymouth route, as directed, and the plaintiff lost his market for the fish. The court held that inasmuch as the defend- ant, without the consent of the consignor, altered the contract and sent the goods by a different route, the carrier was liable for the damages resulting. In Brown & Haywood Co. v. Pennsylvania Co., 63 Minn., 546, 65 N. W., 961 (1896), a carrier received goods to be carried to a point beyond its own line, with directions to deliver them to certain connecting car- riers, with the last of which the shipper had made an agreement for stopping the car at intermediate points on its line for delivery of portions of the goods. It. however, wrongfully sent the goods by different con- necting carriers whose lines reached but one of the intermediate points. On arrival there the shipper dis- closed his contract to have them distributed at the three points, and demanded compliance therewith. The carrier refused compliance until payment of freight for the whole route, when it delivered the goods des- tined to that point and undertook, at its own cost, to carry to each of the other points the portion of the goods to be delivered there, and in doing so the goods were injured. It was held that the initial carrier, though it did not know of the shipper 's agreement with the last connecting carrier, to which it was directed to deliver the goods, was liable for the damage. In Philadelphia & R. R. Co. v. Beck, 125 Pa. St., 620, 17 Atl., 505 (1889), the plaintiff shipped over defend- ant's road goods marked "Via P., care of A. Coast Line, by fast freight," and defendant delivered the goods at P. to a steamship company, in whose posses- sion they were destroyed by fire. The carrier was held liable for breach of contract in not sending the goods by fast freight. And it may be said to be the general rule where a railroad company accepts goods to be transported by a designated route or by an indicated connecting line, 991 that the initial carrier is liable for any damages re- sulting if it delivers the shipment to a carrier other than the designated one, or deviates from the route named in the contract. Eckles v. Mo. Pac. R. Co., 87 S. W., 99 (Mo. App.). Georgia R. Co. v. Cole, 68 Ga., 623 (1882). Brown & Haywood Co. v. Penn. Co., 63 Minn., 546, 65 N. W. 961 (1896). Ingalls v. Brooks, I Edm. Sel. Cas. (N. Y.), 104. Wilcox v. Parmalee, 5 N. Y. Super. Ct., 610. Johnson v. N. Y. Cent. R. Co., 39 How. Pr., 127. Hinckley v. N. Y. Cent. R. Co., 56 N. Y., 429. In 3 Sutherland on Damages (3d Ed.), Sec. 931, it is said that a carrier is liable "for any damages result- ing from a departure from the contract or from the consignor's instructions as to the route, mode of con- veyance, or the condition of delivery (in the absence of any exigency) ; in other words, when a carrier ac- cepts goods to be carried, with a direction on the part of the owner to carry them in a particular way, or by a particular route, he is bound to obey it, and if he attempts to perform his contract- in a manner diff erent from his undertaking he becomes an insurer, and can- not avail himself of any exception in the contract." And in 3 Sutherland on Damages (3d Ed.), Sec. 902, it is said that "a carrier who deviates from his agreement or in- structions by dispatching the goods from the ter- minus of his route by a different conveyance or carrier, and thereby subjects them to increase freight, is liable for the difference." In Hutchinson on Carriers (2d Ed.), Sees. 310-316, the rule is laid down that the carrier may carry the goods by the usual route, but where the carrier con- tracts to carry in a certain manner or by a particular route, it will be held liable for the loss if the contract is not observed. In this connection it may be noted that many of the 992 bills of lading in use contain the following or a similar provision : "Every carrier shall have the right, in case of necessity, to forward said property by any rail- road or route between the point of shipment and the point to which the rate is given. ' ' This is a valid agreement or condition, and if the reason for the deviation is within such a condition in the bill of lading, it will be a sufficient excuse for the carrier. I am of the opinion that the railroad company is liable for any damages caused that can be proved (in- including the additional expense incurred) by reason of the transfer of the car of lumber contrary to the express directions of the bill of lading. WHETHER IT IS LAWFUL UNDER THE NEW RATE LAW FOR A CARRIER TO ABSORB A SWITCHING CHARGE. (Edgar M. Heafer Tile Company, December 10, 1906.) ' ' We are situated upon the Illinois Central Bail- road and desire to ship some goods to a point in Indiana where the rate is ten cents per hundred, but not over the Illinois Central, since their route is not so direct. If we load on the I. C. tracks and the latter delivers to the other road, charging us two dollars per car for the switching service, may the other road assume or absorb this switching charge under the new interstate law? We would be pleased to have Mr. Mayer's opinion on this question. ' ' I am of the opinion that it is lawful under the Inter- state Commerce Act for the competing road to absorb the switching charge of two dollars per car in order to equalize the advantages of the Illinois Central ; pro- vided, however, that the absorption of such switching- charges applies to all persons in like situation, as stated in the tariffs applicable to such shipments and filed with the Interstate Commerce Commission, and published, as required by Section 6 of the Interstate 993 Commerce .jAct. In this connection, the Interstate Commerce Commission in its application of the Act has proposed the following ruling in Traffic Circular 3-A, Sec. 8 (Sept. 15, 1906) : ''When any switching or terminal charge, either at the point of origin or the point of delivery, is absorbed, or when any service is rendered and the total cost to the shipper from the place where the property is first received to the place where it is finally delivered, is thereby affected, such absorp- tion or service shall be stated upon the tariff." WHETHER SHIPPING GOODS BY EXPRESS IN BULK FOR DIS- TRIBUTION IS A VIOLATION OF THE INTERSTATE COM- MERCE LAW. (111. Mfrs.' Assn., December 10, 1906.) "Will you kindly inform me if a shipper is vio- lating the Interstate Commerce Law if goods are being shipped by the express companies from one point to another in bulk for distribution either by an agent or otherwise! A member of the Illinois Manufacturers' Association is in the habit of sending goods by the express companies from Chi- cago or other cities to its own agents, who receive the goods, unpack and distribute them to the vari- ous parties to whom they have been sold. In one instance the goods are shipped to the American District Telegraph Company and dis- tributed by messenger boys. Is not the A. D. T. Company the agent! In the other instance the parties who receive the goods for distribution are employed especially for that purpose. I enclose herewith a copy of a letter which the Adams Ex- press Company has written the member." The letter of the Adams Express Company referred to is as follows: "Mr. Gunkel, of the Detmer Woolen Company, called me up this morning on the telephone and said that your firm was shipping bulked packages, and if I did not prohibit you from doing so, he 994 would report us to the Interstate Commerce Com- mission and also report you. The penalty for any violation of that law is so severe that I take this method of warning you against attempting to get any cheaper rates than any other shipper by our express. You know this applies equally to the shipper and the carrier. I have no knowledge of your having done what is charged by Mr. Gunkel, but if you have done as he charges, you are hereby notified that this company will not carry for you any packages in violation of the Interstate Com- merce Law." The Interstate Commerce Act, as amended, spe- cifically declares that express companies engaged in Interstate Commerce are subject to the Act, and sched- ules and tariffs must therefore be filed by express com- panies, stating all rates, charges, etc. The Elkins Act, as amended, provides: "It shall be unlawful for any person, or per- sons, or corporation, to offer, grant, or give, or to solicit, accept, or receive, any rebate, concession or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier subject to said Act to regu- late commerce and the Acts amendatory thereof, whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to regulate com- merce and the Acts amendatory thereof, or where- by any other advantage is given or discrimination is practiced." This shipping of packages in bulk is what is called in England "the packing of parcels," and in France, " groupage a convert." In England, several "Packed Parcels Cases" have come before the courts. In G. W. R. Co. v. Sutton (1869), L. B. 4 H. L., 226, the defend- ants claimed the right to charge fifth class rate plus 50 per cent, on packed parcels shipped by plaintiff. They charged this rate on the parcels of the plaintiff and other intercepting carriers, but not on similar parcels 995 sent from wholesale firms direct to the railway com- pany. It was held that no difference could be made in the charge. In Piddington v. South Eastern Rail- way Company, 5 C. B. (N. S.), HI, 27 L. J. C. P., 295, where the plaintiff, a carrier, had sent by the defend- ant's railroad a number of " packed parcels," i. e., par- cels consisting of a number of smaller parcels packed together, for which the defendants had charged and the plaintiff had paid double the rates which they would have charged for the same goods when not packed, and the jury found that there was no increased risk in the carriage of the parcels when so packed, it was held that such double charge was unlawful and that the plaintiff was entitled to recover the sum he had paid in excess. Byles, J., in his opinion, said: "I own I had an impression that not only had this ques- tion been settled here, but also in America, where there are large companies formed expressly for the purpose of forwarding goods by the railway." And in Parker v. G. W. R. Co., 7 M. & G., 253, and Crouch v. L. & N. W. Ry. Co., 9 Ex., 556, the English Courts of Ex- chequer held that "packed parcels" could not be charged at a higher rate to intercepting carriers or forwarders than to the general public. In Crouch v. G. N. Ry., 11 Ex., 742, 25 L. J. Ex., 137, it was held that a railway company cannot legally charge a greater sum for the carriage of a package containing several parcels belonging to different persons than for a pack- age containing several parcels all belonging to one per- son. In Crouch v. L. & N. W. Ry. Co., 2 Car. & K., 789, it was held that a railway company was not justi- fied in opening a package with a view to ascertain whether it consists only of packed parcels. In Baxendale v. L. & S. W. Ry. Co., L. R. 1 Exch., 137 (1866), it appeared that the railway company was in the habit of charging to the public on any consign- ment of goods made to one person, at the same time though consisting of several distinct articles, a ton- nage rate on the aggregate of the whole, and the court held that the fact that goods were so consigned at the same time to one person, and distinctly addressed to 996 him (some articles had also written conspicuously upon them the names of persons to whom the con- signee intended to deliver them), did not entitle the defendants to charge separately for those on which such names were different. It should be noted that the decisions of the English Courts are based upon the Equality Clause of the English Eailway and Canal Traffic Act, which is sub- stantially adopted in Section 2 of the Interstate Com- merce Act, and the United States Supreme Court has repeatedly recognized the rule that where such is the case the construction of these provisions by the Eng- lish Courts of Law has been received with all the weight of authority. McDonald v. Hovey, 110 U. S., 619; T. & P. Ry. Co. v. I. C. Com'n, 162 U. S., 197; I. C. C. Com'n v. Alabama Midland R. Co., 168 U. S., 144. In Johnson v. Dominion Express Company, 28 On- tario, 203 (1900), an action was brought by William Johnson and others trading under the name of the National Package Dispatch Company, to compel the defendants to carry goods tendered to them for trans- portation. The plaintiffs had established agencies at Toronto and other points and practically confined themselves to carrying small parcels at a much less charge than the ordinary and regular charges made by the express company; they gathered these smaller parcels together, put them in hampers or packed par- 'cels and tendered them to the express company to be carried on the tariff charged for parcels under 100 pounds in weight, paying for such packed parcels very much less than would be charged for the several par- cels if sent separately. The express company con- tended that it had the right to decline to carry packed parcels for the plaintiffs and that it had the right to charge for each parcel according to the ordinary rates, and to require from the plaintiffs a statement of the number of parcels placed in the packed parcels. The plaintiffs asserted the right to demand carriage of the packed parcels at the same rates as any other parcel similar in size and weight would be carried under the defendant's tariff, without reference to the fact that such packed parcels contained several parcels ad- dressed to different persons to be delivered by agents of the plaintiffs. The Court held that the defendants could not be compelled to carry " packed parcels" (i. e., a large number of small parcels packed together in one large parcel) at their usual tariff for single par- cels by size and weight. Under the Canadian Railway Act there is, however, no jurisdiction to inquire into the reasonableness of rates charged by express companies. Vickers Express Co. v. Can. Pac. R. Co., 9 Ontario, 251, 13 A. R. 210. In Lundquist v. Grand Trunk Western Ry. Co., 121 Fed., 915 (1901), Judge Kohlsaat held that'a railroad company is not required by the Interstate Commerce Act to give the same carload rate on interstate ship- ments to forwarding agents who solcit property for shipment from different owners, each having less than a carload, and combine it into carload lots, that it gives on carload shipments by a single owner; the charges in such case not being for "a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and condi- tions" so as to render the difference in the rates an unlawful discrimination under Section 2 of the Inter- state Commerce Act. In CamUos v. P. & R. R. Co., 4 Brewst., 563 (1873), the plaintiff sought to have the defendant carry pack- ages of parcels at the same proportionate rate as for a single parcel. The Court said (p. 628) : "The defend- ants take the untenable, extreme position that they can make the full charge as for separate packages. On this point, of course, the charge cannot be main- tained." In Buckeye Buggy Company v. C., C. C. & St. L. Ry. Co., 9 I. C. C., 620 (1903), it appears that dealers in carriages would order carriages and buggies of differ- ent grades from different manufacturers, and having purchased a carload in this manner and wishing to combine them in a single carload shipment and thus obtain the carload rate, would instruct the various par- ties to deliver their goods at the warehouse of one of the manufacturers, who would load them in the car at 998 one time and place and tender the carload to the car- rier for shipment to the owners as consignee. The carrier refused to apply the carload rating on such shipments. The Interstate Commerce Commission held that before allowing a carload rating to a carload ship- ment the carrier can require a loading at one time and place and that but a single bill of lading be issued, and that the shipment shall be from one consignor to one consignee. And when the goods are so loaded and become the property of the consignee, the carrier has no right to inquire whether the consignee obtained his title from one or several owners, and if it accords the carload rate when the consignor is the owner, it cannot refuse to extend the same privilege when the consignee is owner. This case is followed in C. S. Bell Co. v. B. & 0. S. W. R. Co., 9 I. C. C., 632 (1903). I am of the opinion that it is not in violation of the Interstate Commerce Act for a consignor to ship by express packages of goods enclosed in larger packages to an agent of the consignor for distribution to the ulti- mate consignees, so long as the consignor is the owner of the goods at the time of shipment, and they are shipped at one time and each packed parcel shipped under one express bill of lading to one consignee. The mere fact that by such a shipment the consignor ob- tains the benefit of a cheaper rate is not a discrimina- tion or concession in the transportation of property any more than it can be said that when a consignor ships in carload lots he thereby obtains a discrimina- tion or preference over a shipper of less than carload lots. When the goods are thus expressed by the con- signor to his agent under one express bill of lading the express company will not be subject to numerous suits in event of loss by the ultimate consignees, and the express company cannot on that ground justify a refu- sal to carry. Section 2 of the Interstate Commerce Act provides that "If any common carrier subject to the pro vi- sions of this Act shall, directly or indirectly, by any special rates, rebate, drawback, or other de- vice, charge, demand, collect, or receive from any 999 person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, sub- ject to the provisions of this Act, than it charges, demands, collects, or receives from any other per- son or persons for doing for him or them a like and contemporaneous service in the transporta- tion of a like kind of traffic under substantially similar circumstances and conditions, such com- mon carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared unlawful." I am of the opinion, however, that a shipment by the consignor of his own goods in the manner above outlined does not come within the prohibition of this section of the Act. I am not informed as to whether the tariffs of the express companies filed and published in accordance with the Act contain any regulation as to shipments of the nature here in question. If the express company names one rate for such shipments and another rate for parcels shipped separately, the published charges must be paid, for they are prima facie the legal rates. If there is such a difference in express rates on the classes of shipments as seems unreasonable, I advise that the charges be paid under protest and complaint be filed with the Interstate Com- merce Commission. But apart from any rule or regu- lation of the express tariffs, and if only one rate is named on a certain class of articles, the express com- panies cannot refuse to accept, at the regular rates, packed parcels shipped in the manner heretofore indi- cated. 1000 AS TO WHETHER AN ILLINOIS CORPORATION CAN MAKE THE ANTI-TRUST AFFIDAVIT REQUIRED BY THE ILLINOIS STAT- UTES, WHEN THE ILLINOIS CORPORATION HAS THE SAME STOCKHOLEDERS, DIRECTORS AND OFFICERS AS A NEW YORK CORPORATION ENGAGED IN THE SAME BUSINESS, AND PRICES ARE FIXED AS TO CERTAIN TERRITORY' OUT- SIDE OF ILLINOIS BY THE NEW YORK CORPORATION ; AND AS TO THE EXTRATERRITORIAL EFFECT OF THE ILLINOIS ANTI-TRUST STATUTES. (Illinois Mfrs.' Assn., December 10, 1906.) "We have a matter under consideration, on which we would like your opinion. Do we, as a home corporation, conflict with the anti-trust law of Illinois in maintaining a domestic corporation in a foreign state 1 ? Our company is organized under the laws of Illinois, capital $400,000, a close corporation of six stockholders. We own and operate several fac- tories in the States of Illinois, Indiana, Ohio and New York. We find that in New York the laws are more favor'able to domestic corporations, and we find that it will be much simpler and more easily handled to have a small domestic corporation. This New York corporation will have a small cap- ital of $10,000. The stockholders, directors and officers will be the same as the home company, except that one additional director must come from the State of New York, as the law there requires at least one director to be a resident of New York. However, it is not necessary for this director to hold stock. The New York corpora- tion is, therefore, owned by the same stockholders as the Illinois corporation. The business of the New York corporation will be carried on, for the most part, independently of the Illinois corporation, except, of course, that the directing head will be at this end. Prices will be talked over, although the New York end will naturally make their own prices to meet local con- 1001 ditions. The books will be kept in New York, they handling their own accounts, manufacturing, sell- ing and shipping their own merchandise. The territory will be divided. The New York company will have all territory east of Ohio. All prices and correspondence for that territory will be handled from the New York office. This in no way does away with competition, as competition is very keen there, and if it were not the New York corporation, it would be the Illinois corporation. Now, the question arises, can we truthfully make affidavit that we 'have not, since the - day of - - (naming the day upon which this act takes effect), created, entered into or become a member of, or a party to, and was not, on the - day of - , nor at any day since that date, and is not now, a member of or a party to any pool, trust, agreement, combination, confederation or understanding with any other corporation, partnership, individual or any other person or association of persons, to regulate or fix the price of any article of merchandise or commodity ; and that it has not entered into or become a member of or a party to any pool, trust, agreement or con- tract, combination or confederation to fix or limit the amount or quantity of any article, commodity or merchandise to be manufactured, mined, pro- duced or sold in this state; and that it has not issued and does not own any trust certificates, and for any corporation, agent, officer or employe or for the directors or stockholders of any corpora- tion, has not entered into and is not now in any combination, contract or agreement with any per- son or persons, corporation or corporations, or with any stockholder or director thereof, the pur- pose and effect of which said combination, con- tract or agreement would be to place the man- agement or control of such combination or com- binations, or the manufactured product thereof, in the hands of any trustee or trustees with the intent to limit or fix the price or lessen the pro- 1002 duction and sales of any article of commerce, use or consumption, or to prevent, restrict or dimmish the manufacture or output of any such article' We have decided in our own minds that legally, as well as morally, we can truthfully make affi- davit. Legally, of course, there are two corpo- rations, and while the ownership and interests are identical now, at some future date these inter- ests might become scattered and the ownership change. You can readily see that there is no intention to organize the new company to manipu- late prices, for anything of that kind. It is organ- ized for the reason that it can be more econom- ically and conveniently handled in this matter." In Chicago Wall Paper Mills v. General Paper Com- pany (U. S. Circuit Court of Appeals, 7th Circuit, Aug. 11, 1906), 147 Fed., 491, it was held that where a combination or trust agreement was made in Wiscon- sin, and the foreign corporation making the agreement is doing business in Illinois, yet such an agreement is not in violation of the Illinois anti-trust statute, and the statute could not be pleaded in defense to an action by the corporation against a resident of Illinois to recover for wall paper sold and delivered by the plaintiff corporation (General Paper Co.) to the de- fendant (Chicago Wall Paper Mills). The court held that the anti-trust statute had no extra-territorial effect and applied only to agreements entered into within the State of Illinois. In People v. Butler Street Foundry & Iron Co., 201 111., 236 (1903), the court said (p. 251) : "In making the affidavit the affiant is only re- quired to take into consideration the acts of the corporation while engaged in business wholly within the state, and if, in connection with that business, it has not been connected with any trust, pool or combination within the state, or otherwise violated the Illinois anti-trust statute, he can truthfully make the affidavit to that effect, al- though the corporation at the same time, in its business outside the state, has been connected 1003 with trusts, pools, combinations, etc., in violation of the United States anti-trust statute, that being a matter exclusively within the jurisdiction of the United States and over which the state has no control and to which the statute of this state does not apply." And also: 1 ' If the statute be confined to its legitimate con- stitutional scope its proper construction only re- quires the affidavit to state whether or not the corporation upon whose behalf it is made had vio- lated the statute by performing some one or more of the acts therein prohibited within the State of Illinois, and would not include, but would exclude, all acts which would connect it with any trust, pool, combination, etc., formed outside of the state, and which would violate the anti-trust stat- ute of the United States." The facts are not stated in sufficient detail to enable me to state positively a legal conclusion. But in my opinion, the following rule will furnish the answer: If the Illinois corporation does not enter into any agreement with the New York corporation within the State of Illinois, or as to business to be done in Illi- nois, the affidavit can legally be made. The fact that the two corporations have common officers and stock- holders is not illegal. A complete situation would be effected if the parent company were organized under the laws of some state which permits one corporation to hold and own the stock of other corporations. EIGHT OF A CONSIGNOR TO CHANGE THE DESTINATION OF GOODS WHILE IN TRANSIT. (F. Bissel Company, December 10, 1906.) "We received a letter from the Southern Rail- way Company of Knoxville, Tenn., declining to change the destination on a car of locust pins shipped to Toledo. These we wish to stop on the way and divert to Kansas City, Mo. The South- ern Eailway say this is contrary to the Interstate Commerce Law. Are you in a position to com- ment on this?" It is the general rule that while goods are in course of transportation, the consignor who is the owner of goods has the right to direct a change in their destina- tion, and the carrier is bound to obey such direction. 5 Am. Eng. Enc. Law (2nd Ed.), 214. Hutchinson on Carriers (2nd Ed.), Sec. 134. Lewis v. R. R. Co., 40 111., 281. Straborn v. Stockyards Co., 43 111., 424. L. S. & M. S. R. Co. v. Bank, 178 111., 506, 524. Blanchard v. Page, 8 Gray (Mass.), 281, 285. Allen v. Maine Cent. R. Co., 79 Me., 327, 9 Atl., 895. L. & N. R. Co. v. Hartwill, 99 Ky., 436, 36 S. W., 183. Sutherland v. Bank, 78 Ky., 250. Howell v. Norlan, 78 111., 162, 166. In Hutchinson on Carriers (2nd Ed.), Sec. 134, the rule is stated: "When there has been no agreement to ship the goods which will make the delivery of them to the carrier a delivery to the consignee, and vest the property in him, the shipper may, even after the delivery to the carrier and after the bill of lading has been signed and delivered, or after the goods has passed from the possession of the initial carrier into that of a succeeding one, alter their destination and direct delivery to another consignee, unless the bill of lading has been for- warded to the consignee first named or to some one for his use ' In Phila. etc., R. Co. v. Wireman, 88 Pa. St., 264 (1879), it was held that where goods are left with a carrier to be forwarded without any condition or qual- ification, the shipper cannot change their destination except under such circumstances as entitle a vendor to stop them in transit. In L. S. & M. 8. Ry Co. v. Live Stock Bank, 178 111., 506, the rule allowing the consignor to change the 1005 destination of goods is limited to consignors who are the owners of the goods while in transit. The court there said (p. 524) : "Appellee urges that where a consignor has an interest in goods consigned he has a right to change their destination while they are in transit, and that it is the duty of the carrier to obey his instructions for that purpose; that the issuing of the receipts was with the consent of Hugh Gil lice, who caused the cattle to be delivered to the car- Bier, and that the legal effect was the same as if delivered by the plaintiff. Appellee cites, inter alia, Letvis v. Galena and Chicago Union Railroad Co.. 40 111., 281, and Diversey v. Kellogg, 44 id., 114, as sustaining these propositions. Hugh Gil- lice was the mere agent to buy for Michael C. Gil- lice, and after a consignment was made to the lat- ter he had no authority to change it. In the Lewis case it was held that shippers and owners of goods shipped had a right to control their destination. That is an undoubted rule of the utmost import- ance to the commercial world, and is simply the right of stoppage in transitu. Hugh Gillice was not the owner of the goods, and hence had not the right of stoppage in transitu." In Scotthorn v. South Staffordshire Ry. Co., 8 Exch., 341, 22 L. J. Ex., 121, the plaintiff delivered at a station of that company certain goods addressed to the East India docks, London, and paid one sum for their carriage for the whole distance. By the practice of the railway all goods delivered at that station for London were forwarded on their own line to Birming- ham, and from thence by the London & North West- ern Railway. Before the goods in question arrived in London, the plaintiff directed a clerk at the London station of the latter company to forward them to another place which the clerk promised to do. The goods were, however, delivered according to the orig- inal address and lost, and it was held that the South Staffordshire Railway Company was responsible for the loss. Platt, Baron, in delivering judgment, said: 1006 "If a carrier undertakes to carry goods from A to B. he does so subject to a right in the owner to countermand the direction at any point of the journey, and although he may be bound to pay the carrier for his trouble, yet the latter has no right to carry them further against the will of the owner of the goods. ' ' A consignor who is the owner of the goods is thus entitled as a matter of right to change the destination of goods in transit and the carrier must follow the directions. There is no provision in the Intesstate Commerce Act preventing or forbidding the carrier from following the directions of the consignor under such circumstances. Section 7 of the Interstate Com- merce Act provides : "That it shall be unlawful for any common car- rier subject to the provisions of this act to enter into any combination, contract or agreement, ex- pressed or implied, to prevent by change of time schedule, carriage in different cars, or by any other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stoppage or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this act." The design of section 7 was to forbid devices on the part of the carrier whereby for the purpose of evading the provisions of the act, collusive arrange- ments may be resorted to to prevent a continuous car- riage over connecting lines. The Interstate Commerce Commission in reference to this section said in R. B. Comn'n. of Ky. v. L. & N. R. Co., 10 I. C. C., 173, 188 (1904) : 1007 "Just what the seventh section may have been intended to accomplish is not certain. Possibly the legislature had in mind that railways might attempt to relieve themselves from its provision by interrupting traffic at state lines, and thereby deprive it of the character of interstate business. The seventh section may have been intended to prevent this." I am of the opinion that the seventh section of the act above quoted has no application to the case here presented. The owner of the goods has a right to di- rect a change of destination of goods in transit, and the provisions of section seven do not prevent the carrier from obeying the directions- of the owner. I am not informed as to the terms of the bill of lading covering the shipment of locust pins in question, and I have assumed that the F. Bissel Company is the consignor. If the Bissel Company was still the owner of the shipment while in transit, and if the terms of shipment were not such as to vest title in the con- signee immediately upon delivery to the initial car- rier, or if the bill of lading had not been parted with, I am of the opinion that the Southern Railway Company would be bound to change the destination in accord- ance with the instructions given. If, however, the shipment was to be stopped for the purpose of milling or dressing in transit, a different question would arise, and one which I discussed at length in my opinion of October 8, 1906, for J. M. Glenn, Secretary of the Illinois Manufacturers' As- sociation. 1008 LEGALITY OF A THROUGH RATE GREATER THAN THE SUM OF LOCAL RATES CAUSED BY CHANGES IN CLASSIFICATION OF SHIPMENT. (Deere & Weber Co., Dec. 10, 1906.) ' ' We have your favor of the 25th answering our letter of the 19th and will be pleased to receive the information as soon as possible. We are writ- ing you further in the matter of rates where the sum of the two locals has been less than the through rate. We have vehicles moving from several points in Michigan which have heretofore moved 4th class to Chicago and then under com- modity rate of 20 cts. from Chicago to Minne- apolis, and the Western Trunk Line circulars state that 4th class is the rate to Chicago on goods destined beyond. The railroads are now attempting to charge a through third class rate. Why should this fourth class rate not apply through if they will not use the local commodity from Chicago here. Fur- thermore, the Interstate Commerce Commission says they can put in a through tariff equal to the sum of the two locals, and they are holding up while the Eastern and Western roads are fighting over the division. We have brought pressure to bear on them ourselves to hurry this issuing of this tariff and will be pleased if you can do something to expedite matters." In my opinion of November 10, 1906, to the Illinois Manufacturers' Association, in response to an inquiry from the Block-Pollak Iron Co., I discussed the ques- tion as to what is the legal rate where the through rate is greater than the sum of the locals, and to that opinion I refer. If, under the circumstances stated, the rate from Michigan points to Chicago is fourth class rate and from Chicago to Minneapolis is a commodity rate of twenty cents, and the railroads have filed in their tar- iffs a through rate of third class rate on the same com- modity from Michigan points to Minneapolis, there is 1009 evidently a through rate greater than the sum of the locals, made so by a change in classification. The same rule should apply, therefore, as in any case where the through rate is greater than the sum of the locals. The through rate as named in the joint tariffs, is prima facie the legal rate, and on a through shipment the carrier is entitled to collect such through rate stated in the joint tariffs published and on file with the In- terstate Commerce Commission. But unless the third class rate on through shipments of vehicles from Mich- igan points to Minneapolis is published in the joint tariffs on file with the Commission, the carriers are not entitled to enforce such rates. I advise that all such payments of freight be made under protest, if the carriers will not accept the com- bination rates. Prima facie the through rate is un- reasonable, and upon proof of the fact that the carrier should make reparation. Complaint should be filed with the Interstate Commerce Commission that the railroads refuse to reduce their through rate to the sum of the locals. If it is practicable, I advise that in order to obtain the advantage of the locals a method of consignment be adopted such as is outlined in my opinion of November 10, 1906, above referred to. In any event, if the carriers refuse to accept shipments in the manner and under the classification and rates by which they have heretofore moved, and insist upon the higher through rate, payment should be made under protest. I also advise that complaint at once be made to the Interstate Commerce Commission that the car- riers in question refuse to reduce their through rate to the sum of the locals, as they are allowed to do upon a one-day notice under Tariff Circular No. 5-A of the Interstate Commerce Commission. In Traffic Circular No. 6- A (Nov. 16, 1906), the Interstate Com- merce Commission makes the following statement : ' ' Many informal complaints are received in con- nection with regularly established through rates which are in excess of the sum of the locals be- tween the same points. The Commission has no authority to change or fix a rate except after full 1010 hearing upon formal complaint. The Commission announced in its Tariff Circular No.5-a of October 12, 1906, a rule permitting practically immediate reduction of a through rate which is higher than the sum of the locals between the same points. It is believed to be proper for the Commission to say that if called upon to formally pass upon a case of this nature it would be its policy to con- sider the through rate, which is higher than the sum of the locals between the same points, as prima facie unreasonable, and that the burden of proof would be upon the carrier to defend such higher through rate." WHETHER A CONSIGNEE CAN CHANGE PLACE OF DELIVERY OF A SHIPMENT WHEN SUCH SHIPMENT IS SENT F. O. B. FREIGHT PREPAID. (Grand Crossing Tack Co., December 11, 1906.) "On Sept. 21st we loaded and billed on our order from consignee at Minneapolis, Minn., one car nails. We sold the goods F. 0. B. Minneapolis and deducted the regular rate of freight from Chicago to Minneapolis from our invoice to them, telegraphing them car number; as soon as they received car number from us they telegraphed . agent of the railroad (in whose possession car was) to divert destination of car to Milwaukee, Wis., which takes a cheaper freight rate than Min- neapolis. Will you kindly inform us if this is legal, as we virtually billed and hold receipt from railroad for the destination of car at Minneapolis. You have no doubt rendered an opinion on this at some past time, but we are unable to locate it." In the absence of other qualifying circumstances, the prepayment of freight by the consignor, and a sale f. o. b. destination, constitute the carrier the agent of the consignor, and the title to goods shipped remains in him until delivery to the consignee. The allowance of freight by the consignor to be deducted from the purchase price is the same in legal effect as a prepay- ment by the consignor. Whether the title to goods passes upon the delivery to the carrier is primarily a question of intention to be deduced from the contract and from all the facts and circumstances of the case. As a general rule, there being no limiting circum- stances, delivery to a carrier is a delivery to the con- signee, the carrier being considered as the agent of the consignee. But if the vendor undertakes to make a delivery at a distant place, thus assuming the risks of carriage, the carrier is the vendor's agent, and in the absence of other circumstances the title to the goods remains in the consignor. This may occur where goods are sent f. o. b. destination, as in the present case, or sent on approval, or with privilege of examination. In the present case, inasmuch as the consignor paid the freight and the goods were sold "f. o. b." Min- neapolis, the title, in the absence of other circum- stances, would remain in the consignor.- The authorities upon this question are referred to in my opinion of October 24th, 1903, to American Steel & Wire Co., to which I refer. While the goods are in transit the owner may at any time instruct the carrier to change their destination. The question remains whether the consignee can do so where the title is in the consignor, as above stated. In L. & N. W. Co. v. Bartlett, 7.H. & N., 400, de- cided by the Court of Exchequer in 1861 , the facts were as follows : The plaintiff sold wheat by sample, to be delivered to the purchaser at his mill. The wheat was shipped over the defendant's railway. On the arrival of the wheat at a station two miles from the mill the defend- ants kept it there in consequence of instructions given to them by the consignee to the effect that wheat ar- riving for him at the station should not be forwarded to the mill without his written order. The plaintiff had no knowledge of these instructions. The consignee examined the wheat at the station, but refused to al- cept it, and while it remained there it deteriorated in quality and value. Plaintiff sued the railroad on ac- 1012 count of its failure to deliver to the mill of the con- signee. Pollock, C. B., said: "It is clear that a consignee may receive the goods at any stage of the journey, and though the consignor directs the carrier to deliver them at a particular place, there is no contract by the carrier to deliver at that place and not elsewhere. The contract is to deliver there unless the consignee shall require the goods to be delivered at another place. Here the wheat was delivered at the place where the consignee desired it to be delivered, and therefore the carrier is not liable." Bramwell, B., said : "I am of the same opinion. I cannot think that the contract between the parties is not only an af- firmative contract to deliver at the mill, but also a negative contract not to deliver elsewhere. It would probably create a smile anywhere but in a court of law, if it were said that a carrier could not deliver to the consignee at any place except that specified by the consignor. The goods are intended to reach the consignee, and provided he receives them it is immaterial at what place they are delivered. The contract is to deliver the goods to the consignee at the place named by the con- signor unless the consignee directs them to be de- livered at a different place. That being so, all difficulty arising from the Statute of Frauds is at an end. If, indeed, it could be shown that the con- signor would be prejudiced by a delivery at any other place than that named, there might be some reason for implying a contract to deliver at that precise place and no other. But still I should think that immaterial, for how can a carrier's lia- bility be affected by the consideration whether or not there was a written contract between the con- signor and consignee! It seems to me that in no point of view is it material to inquire whether the consignor can maintain an action against the con- signee. But I cannot help thinking that the con- signor is not worse off than he would have been if 1013 the contract had been strictly performed ; because, whatever right of rejection the consignee had, or within whatever time he was bound to reject, he has neither more nor less than he would have had if the wheat had been delivered at his mill. For these reasons I think that the appeal should be allowed." Wilde, B., said : "I am of the same opinion. I think that a con- signee may at any time dispense with the delivery, which the consignor has contracted for with the carrier, at a particular place, by receiving the goods which are the subject of the contract at some other place. That indeed was scarcely denied as a general proposition, and much absurdity would follow if it were not so. ' ' In Hutchinson on Carriers (2d Ed.), Sec. 394, it is said: ' ' The owner of the goods may at any time change his instructions to the carrier as to their destina- tion, and may, if he chooses, countermand his pre- vious orders in regard to them; and this he may do at any time during the transit. But the con- signee is the presumptive owner, and unless the carrier is advised that the consignor has not parted with his title, and that it is to vest in the consignee only upon the performance of certain conditions, as, for instance, the payment of their price, a de- livery at any place appointed by the consignee will discharge the carrier from his liability, even though it should not be the place appointed by the consignor. ' ' And in Sec. 395 it is said : "But where the carrier is informed that the goods belong to another, and that the consignee is merely his agent, he will be liable to such owner, if, after the goods are once delivered to him for shipment, consigned to the agent at a particular destination, he permits such agent to take back the goods or delivers them to another upon his order at the place of shipment, or at any other place than the one to which they are consigned." 1014 In Vol. 5, Ency. of Law, p. 215 (2d Ed.), the rule is thus laid down : "PRESUMPTION OF OWNERSHIP CONSIGNEE DI- RECTING CHANGE. The consignee is presumed to be the owner of goods in transit, and the carrier is entitled to regard him as such, unless it has actual notice to the contrary, or unless such notice is to be implied from the manner of shipment, as when they are sent C. 0. D., a delivery to the carrier being commonly a delivery to the consignee's agent. The carrier is therefore entitled to deliver at a different place and time from that stated in the directions by the consignor when instructed to do so by the consignee ; it has a right to regard him as the true owner and to obey his instructions with regard to delivery. And a delivery in accord- ance with such instructions will relieve it from lia- bility for consequences flowing from a change in the place of delivery. NOTICE THAT CONSIGNEE IS NOT OWNER. But if the carrier has notice, actual or implied, that the ownership of the goods is not in the consignee, in- structions from him will constitute no defense to an action for a delivery not in accordance with the original instructions." In Southern Express Co. v. Dickson, 94 II. S., 549, an express company with full knowledge that certain goods received by it for transportation to a place men- tioned in its receipt were the property of the shipper, delivered them, without his knowledge, to a third per- son at the place of shipment, on the order of the con- signee. It was held that the carrier was liable for the value of the goods. The court said : "We are not called upon to question the propo- sition that a consignee of goods is for many pur- poses deemed to be the owner of them, and may maintain an action for their non-delivery. 1 Pars. Ship., 269. In the case before us the proof was given; and the jury found that the goods did not belong to the consignees, but were the property of 1015 the shipper, and that this was known to the car- rier. The question is rather, where it is known that the goods are the property of the shipper, and have been shipped by him for delivery to the con- signees as his agents at a distant place can the carrier deliver the goods to such consignees or to their order at another place, or without starting them on their journey? We think the rule is, that, where the consignor is known to the carrier to be the owner, the carrier must be understood to con- tract with him only, for his interest, upon such terms as he dictates in regard to the delivery, and that the consignees are to be regarded simply as agents selected by him to receive the goods at a place indicated. Where he is an agent merely, the rule is different." The court, after referring to the cases, said : "The numerous cases cited by the plaintiff in error, to the effect that any delivery to the con- signee which is good as between him and the car- rier is good against the consignor, are cases where the carrier has no notice of the ownership of the property other than that implied from the rela- tion of the parties to each other as consignor and consignee. This gives to the consignee the implied ownership of the property, and hence justifies the carrier in taking his direction as to the manner of delivery. In addition to those authorities, refer- ence may be had to Sweet v. Barney, 23 N. Y., 325, where a bank in the interior of New York sent by express a package of money directed to ' The Peo- ple s Bank, 173 Canal Street, New York.' The package was delivered to an agent of the People's Bank at the office of the express company and was stolen from such agent. The bank in the interior brought its action against the express company, and the question was, whether the express company was authorized to deliver the package at any other place than 173 Canal street. The court held that as there was no notice to the express company that the money 1016 was not the property of the People's Bank, in the City of New York, nor any circumstances to weaken the presumption that the money belonged to that bank, and delivery that was good as to that bank discharged the carrier. Of the character mentioned in the case of Lon- don & Northwestern Railroad Co. v. Bartlett, 7 H. & N., 400, which is much relied on by the plain- tiff in error. The consignee in that case was the purchaser of the wheat in question, and conse- quently any delivery to him. or his order, wher- ever it might be, would be a discharge to the car- rier. ' ' And in Lee v. Kimball, 45 Me., 172, it was held that if a consignee in a bill of lading sells the goods before their arrival, and assigns the bill of lading to the vendee in good faith, the right of the vendor to stop in transit upon the insolvency of the vendee is thereby divested. In the present case there is nothing submitted to me to indicate that the carrier knew that the consignor remained the owner of the goods. The fact that the goods were shipped f. o. b. destination was a matter of private contract between consignor and consignee, and was presumably not known to the carrier. Un- der the rule laid down in the above cases the carrier was justified, in the absence of such knowledge, in delivering or reshipping in accordance with the direc- tion of the consignee. I pass in this opinion only upon the right of the consignee under the stated facts to change the place of delivery. WHETHER, UNDER THE GARNISHMENT ACT OF ILLINOIS, IT IS NECESSARY FOR THE PLAINTIFF TO OBTAIN JUDGMENT AGAINST THE DEFENDANT BEFORE MAKING DEMAND UPON THE EMPLOYER. (J. W. Butler Paper Co., December 11, 1906.) "We are in doubt as to the meaning of chapter 62 of the Garnishment Act and would be obliged to you for an opinion on said section. What we 1017 particularly wish to know is, whether it is not necessary for the plaintiff to obtain judgment against the defendant before making the demand upon the employer. The statute says: 'Before bringing suit, a de- mand in waiting shall first be made upon the wage earner and the employer for the excess above herein exempt and a copy of such demand shall be left with him and with the employer, etc. ' Does this refer to the original suit of the garnishment suit?" Sec. 14 of the Garnishment Act, as amended, pro- vides : "The wages for services of a wage earner who is the head of a family and residing ivith the same to the amount of fifteen (15) dollars per week shall be exempt from garnishment. All above the sum of fifteen (15) dollars per week shall be liable to garnishment. ' ' Every employer shall pay to such wage earner such exempt wages not to exceed the sum of fif- teen (15) dollars per week of each week's wages earned by him, when due, upon such wage earner making and delivering to his employer his affi- davit that he is such head of a family and residing with the same, notwithstanding the service of any writ of garnishment upon such employer to abide the event of the garnishment suit. If the amount of wages subject to garnishment shall not equal the costs of the garnishment, whatever re- mains of costs shall be paid by the person bring- ing the garnishment proceedings, and judgment shall be entered therefor against him, and no judg- ment for any such deficiency of costs shall go against the wage earner or the defendant. No em* ployer so served with garnishment shall in any case be liable to answer for any amount not earned by the wage earner at the time of the service of the writ of garnishment. Before bringing suit a demand in writing shall first be made upon the wage earner and the employer for the excess 1018 above the amount herein exempted, and a copy of such demand shall be left with him and with the employer having endorsed thereon the time of service, at least twenty-four hours previous to bringing such suit. Such notice shall be filed with the justice, or clerk of the court, with the manner and time of the service of the same endorsed there- on, and the return duly sworn to before some offi- cer authorized to administer oaths, before it shall be lawful to issue a summons in such case, or to require an employer to answer in any gamishee proceedings. Any judgment rendered without said demand being served upon the wage earner, and so proven and filed as aforesaid shall be void. The excess of wages shall be held by the employer, subject to garnishment by the creditor serving demand, for five (5) days after such service of demand. ' ' The requirement in the statute as to the making of a demand applies only to the garnishment proceed- ings. It is not necessary to serve a notice on the em- ployer when a judgment is sought against the employe in the original suit. The employer is not a party to such a suit, and is not concerned therewith. If, how- ever, a judgment is rendered in any suit, and garnish- ment proceedings are commenced on such a judgment, then, before the garnishment suit can be maintained, a demand must be made on both employer and employe, in accordance with the statute. Before instituting gar- nishment proceedings, the plaintiff must obtain judg- ment against the employe, but in attachment proceed- ings garnishees are summoned before judgment, and in order that a garnishee in an attachment proceeding may be held in such proceedings, the plaintiff must sus- tain his attachment and recover a judgment on the merits. In my opinion, the statute above quoted does not refer to attachment proceedings, so called, but only to "garnishment" suits. It should be borne in mind that the garnishment act applies only to such employe who is "the head of a family, and residing with the same." INDEX TO NAMES. Acme Harvester Co 68, 77 Aermotor Co 47 Allen, William D 140, 875 Amazon Knitting Company 478 American Can Co 210 American Foundry and Furnace Company 289 American Soda Fountain Co 44, 54 American Steel & Wire Co 235 American Strawboard Co ; 31, 80, 41(5 American Tag Company 780 Art Bedstead Co. ..." 130 Audit Company of New York 15 Aurora Automatic Machinery Co 834 Austin Manufacturing Company 277 B Barnard & Leas Mfg. Co 333 Barnes Company, B. F 753 Barnhart Bros. '& Spindler 206, 750 Barrett Mfg. Company 414, 551, 592, 864, 888 Baum Company, C. F : . . . 217 Beacon Falls Bubber Shoe Co 233, 272, 841 Becker Company, L. A 571 Becker, Mayer & Co 88 Beggs Manufacturing Company 380, 582 Beidler, Francis 201, 221 , 605 Belding Bros. & Co 17 Benedict & Co., George H 71 Bissel Company, F 1003 Block-Pollak Iron Company 366, 625, 967 Borden 's Condensed Milk Company 897 Born & Co., M 501, 813 Brunswick-Balke-Collender Co 432, 439 Bunge Co., William H 721 Burley & Tyrrell 762 Burns Lumber Co., John E 415, 937 Butler Paper Co., J. W 1016 Butler Street Foundry & Iron Co 154 C Cady & Co., E. J 364 Challenge Machinery Co 16, 33 Chicago Flexible Shaft Company 657 Chicago Flour Company 679, 716 Chicago Specialty Box Co 857 Chicago Varnish Company 349, 638 Climax Manufacturing Co 736 Cole Mfg. Co 115 1019 1020 Comptograph Company 652 Crane Co 396 Curtain Supply Co 155 D Darling & Co 325 Deere & Co , 249 Deere & Weber Co 1008 Dillon-Griswold Wire Co 295 E Earle Mfg. Co., F. H 486, 570, 953 Eclipse Gas Stove Co 84, 542 Edwards-Stamvood Shoe Co 123 Electric Appliance Company 523 Emerson Manufacturing Company 438 Emmerich & Co., Chas 186, 234, 432, 441 F Fairbank Company, N. K 247 Foley Mfg. Co : 56, 873 G Garden City Sand Company 586 Glaser, Kohn & Co 574 Goetzmann, A. L 861 Goss Printing Press Co 520 Grand Crossing Tack Co 1010 Grant Chemical Company, J. C 335 Gregory Electric Company 338 H Hartman Furniture Company. . 783 Hartman, Hay & Reis 670, 730 Hasler Company, E. L 829 Havemeyer & Co., W. A 654 Heafer Tile Company, Edgar M 992 Heath & Milligan Mfg. Co 382, 409, 700, 808 Henning Company, William 687 Heroy & Marrenner , 48 Heywood Bros. & Wakefield Co 46 Hibbard, Spencer, Bartlett & Co 75, 83, 169, 214, 216, 899, 902 Hines Lumber Company, Edward 41, 386, 403 Hoyt Company, W. M 427 Hunt, Helm, Ferris & Co 475, 685, 838 Hunt & Co., Robert W 433 Huss & Edler 159 I Illinois Brick Company 525 Illinois Glass Company 957 Illinois Maintenance Company 282, 320, 417 1021 Illinois .Malleable Iron Co 154, 208, 384, 472 Illinois Manufacturers' Association 1, 5, 8, 11, 51, 58, 85, 90, 93,95,111,113,117, 119, 176,177,182,198, 212, 222, 242, 326, 354, 373, 394, 417, 419, 439, . 460, 489, 546, 914, 922, 931, 993, 1000 Illinois Sewing Machine Company 41, 392, 681, 845 Illinois Zinc Co 36 Inderriedden Company, J. B 436 Inland Steel Co 73 Iroquois Iron Company 811 K Kaestner & Co 320 Kellogg Switch Board & Supply Co 213, 642 Kewanee Boiler Company 633 King & Co., W. 307, 480, 481, 599 Kingman Plow Co 263, 274 Kinley Mfg. Co 151 Kuh, Nathan & Fischer Company 710 L La Bastie Glass Company 597 Latrobe Steel & Coupler Company 13, 215 Levy & Co., Max 204 Lord & Bushnell Company 987 Ludowici Eoofing Tile Company 157 M Manierre-Yoe Syrup Company 560 Manz Engraving Co., J 12 Marquette Cement Mfg. Co 385 Marshall and Huschart Machinery Co 767 Marsh & Bingham Company, The 558 Mason & Co., E. T 132 Mathis Brothers Company 397 Maxwell & Co., S. A 290, 351 McClurg & Co., A. C 775 McNeil & Higgins Company 471 Hears & Co., Charles H 590 Merkle-Wiley Broom Company 843 Miller & Co., E. M 553, 621 Moline Plow Co 202 Moloney-Bennett Belting Co 943 Monmouth Mining & Mfg. Co 69 Monmouth Pottery Co 391, 404, 424, 770 Montgomery Ward & Co 253, 284 Morden Frog & Crossing Works 637 Mt. Vernon Car Manufacturing Company 288 N Norton & Co 3, 672 1022 O 'Gara Coal Co 734 Oliver Typewriter Co 53, 79, 105, 280, 281, 815, 446,659,754 Oppenheimer & Co., S 567 Osgood Company ' 302 P Palmer, Fuller > & Co 106 Parlin & Orendorff Co 26, 62, 66, 70, 96, 122, 243,599,618,802 Pate Lumber Company, D. S 629 Peru Plow & Wheel Co 59 Pilcher-Hamilton Company 909 Pitkin & Brooks 167, 518 Press Co., Adam J 121 R Bacine-Sattley Company 322 Eawleigh Medical Company, W. T 792 Eeid, Murdoch & Co 369, 604, 838, 878 Kice, W. H 138 Eichardson & Co., 0. W 946 Eitchie & Co., W.'C 42 Eitchie, W. E 803 Eockford Watch Co., Ltd 713 Eock Island Plow Company 346, 626, 649 Eoos Mfg. Co 107 Eose & Company, Edward 313, 855 Eosenow & Co 319 Eubber Paint Company 469, 498, 547, 555 Eueckheim Bros. & Eckstein 308 Eyerson & Son, Joseph T 101, 378, 615, 849 S St. Charles Condensing Company 569 St. George Mg. Co., E. D 50 Sandwich Manufacturing Co 572 Sanf ord Mfg. Co 34, 491 Sargent & Co., C. H 595, 828 Sattley Manufacturing Company 105 Scully Syrup Company, D. B 306 Sefton Mfg. Co., J. W 78, 123, 126 Selz, Schwab & Co 185, 192, 503, 512, 883 Senour Manufacturing Company 165 Sherwin-Williams Co 406 Shonk Co., Chas. W 102 Shotter Company, The S. P 422, 444 Simonds Manufacturing Company 104 Skandia Furniture Co 98, 218 Smith & Sons Company, E. P 607 Spielman Bros. Company 824, 853 Squire Dingee Company 371 Standard Wheel Company 507 1023 Standard Varnish Works 951 Steele-Wedeles Co 118 Stockton Company, Joseph 935 Streator Bottle & Glass Company 186 Streator Clay Mfg. Co 207 Stromberg, Allen & Co 817 Strube Machine Works 557 Studebaker Bros. Manufacturing Company 429, 470, 576 Sturges & Burn Manufacturing Company 300 T Thayer & Jackson Stationery Co 179 Thompson & Taylor Spice Company 389, 806 Tilt Shoe Company, J. E 341 Tolman Company, John A 663, 666 Tonk Manufacturing Company 233, 603 Tosetti Brewing Company, Ernest 298, 311 U Union Special Sewing Machine Co 76 United States Pharmacal Company 609 U. S. Wind Engine & Pump Co 112 W Wallin & Sons, C. C 12 Wahvorth & Neville Mfg. Co 963 Watson Co., Geo. E 235, 459 Weaver Organ & Piano Co., The 917 Weir & Craig Mfg. Co 200 Weller Mfg. Co 509 \Vestern Cottage Piano and Organ Company 317 Western Salvage Wrecking Agency 74 Western Stoneware Company 983 Western United Gas & Electric Company 819 Wheeler & Wilson Mfg. Co 515 Whitcomb Company, Geo. D 324 Whiting Foundry Equipment Co 59, 388, 395 \Vilcox Manufacturing Company 348 Wilder & Co 110 Williams, White & Co 565 Wolf Co., Fred W 516 Wrisley Co., Allen B 14, 133, 134 INDEX. ACCOBD AND SATISFACTION. Effect of sending a check in full settlement of an account where amount of check is less than amount due 371 ACCOUNTS. What constitutes a valid and enforceable guar- antee of 272 ACTIONS. Eight to recover on implied contract where express contract exists 332 ADVEBTISING. Eight of tenant to lease side of building for advertising purposes 883 Liability in Illinois under New York statute prohibiting the use of name, photograph or picture of any person for advertising purposes 301 Eight of manufacturer to use fac-simile of exposition awards for advertising purposes 541 Whether use of aluminum discs used for advertising con- stitutes counterfeiting 500 AGENCY. Liability of employer on contracts made by his em- ployees or agents 511 Whether lumber broker is agent of his principal so as to bind latter by his contract 629 Authority of commission salesmen to make contracts.... 201 Liability of firm on orders taken by salesmen working on commission basis 221 Power of traveling salesmen to bind employer on contract. 78 Liability of corporation on note and acceptance issued in name of corporation by officers unauthorized to execute same 963 Whether salesman has power to endorse principal's name upon checks 470 Liability of a parent corporation for acts of the managers of subsidary companies 750 ALIENS. The Alien Contract Law and its application 808 ANNUAL MEETING. Necessity of Illinois corporation publish- ing a notice of its annual meeting 753 ANNUAL EEPOBTS. Necessity of making annual reports to Secretary of State and effect of failure to do so 436 ANTI-TBUST AFFIDAVIT. (See Corporations.) Whether necessary to file anti-trust affidavit in absence of notice from Secretary of State 841 Necessity of filing annually 133 Form of same where corporation is doubtful as to whether it has violated law 183 1025 1026 Whether Illinois corporation can make anti-trust affi- ravit when it has agreement in reference to price, etc., with New York corporations having same stockholders, directors and officers as Illinois corporation 1000 Whether foreign corporations must make 155 ANTI-TBUST STATUTES. Constitutionality of 381 Whether labor and labor unions within provisions of 408 Extra territorial effect of Illinois anti-trust statute 1000 Validity of agreements fixing price on commodities under Illinois statutes 571 ARCHITECTS. Liability for installation of machinery that does not prove satisfactory 433 ASSIGNMENT OF WAGES. (-See Employment.) In reference to assignment of wages under Illinois law of 1905 817 Necessity of employer recognizing assignment of wages when made by power of attorney 519 Sufficiency of notice to employer of assignment of wages by employee 384 Right of minor to assign wages 234 ASSIGNMENTS. Whether foreign corporation which has not complied with laws of Kansas can enforce a claim against a resident by assigning the name to an individual and bringing suit in his name 792 B BAGGAGE. (See Carriers.) BAILMENTS. Liability of traveling salesman for loss of horse. . 380 Liability of bailee for goods destroyed while in process of repair 469 BANKRUPTCY. Validity of unrecorded mortgage against a trustee in bankruptcy 783 BANKS. (See Bills and Notes, Negotiable Instruments.) Liability for failure to notify payee of non-payment of note 233 Liability of collecting banks 780 Liability of banks for proceeds of checks forwarded for collection when checks are sent to bank upon which they are drawn 581 Whether proceeds of collection of note made payable at certain bank is a trust fund for the holder of the paper when bank fails after making collection; the rule in Texas 576 Rights of a depositor of paper for collection where paper has been sent by forwarding bank to another bank than the bank on which it is drawn and the collecting bank fails before the proceeds of the paper are obtained 780 Liability for failure to protest note sent to it for collec- tion 233 1027 Liability of corporation for note of third person which it has sold to a bank and guaranteed the payment thereof, when the maker pays the note to a collecting bank and the latter does not remit 386 BENZINE. (See Insurance.) BILLS AND NOTES. (See Banks.) Whether notes signed by wife as accommodation surety for her husband in Kentucky and payable in Illinois are enforceable against wife under Kentucky statutes 899 What laws are applicable when the note is executed in one state and payable in another 899 BILLS OF LADING. (-See Carriers, Sales.) BLACK LISTING. (-See Conspiracy, Boycott.) BOILER MANUFACTURING. (-See Independent Contractor.) BOILERS. (See Cities, Steam Engineers.) Validity of rules as to size of blow-off pipes 515 Right of city to compel manufacturer to change steam boilers to comply with rulings of board of inspectors .... 417 BONUS ACT OF PENNSYLVANIA. (See Foreign Corpora- tions. ) BOOK ACCOUNTS. Whether book accounts subject to access- ments 685 BOTTLES. (-See Trade Marks.) BOYCOTT. (See Conspiracy; Labor Unions.) Liability of labor union for boycott against particular goods 308 BREAKAGE. Claims against carrier for 424 BROKERS. Whether broker liable for return of unearned pre- miums on cancelled policies 441 Whether insurance broker entitled to renewal commissions where policies renewed through another broker 441 BULK SALES. Effect of Bulk Sales Law in Illinois and liability of an attaching creditor under the law 662 Presumption of fraud when sales made without com- pliance with bulk sales law and whether sales are con- clusively fraudulent or only prima facie 666 BURDEN OF PROOF. (See Bailments.) C CAPITAL. What constitutes 280 CARBON COPIES. Whether carbon copies of letters admissible in evidence the same as letter press copies 378 CARRTERS (See Connecting Carriers; Carriers by Water ; Consti- tutional Law ; Demurrage; Express Companies; Interstate Commerce Act.) The subject is classified under the following sub-heads: (1.) BAGGAGE (p!027). (2.) BILLS OF LADING (1027). (3.) CONSIGNOR AND CONSIGNEE (1027). (4.) DELAY AND DAMAGE THEREFOR (1028). 1028 (5.) DELIVERY OF GOODS BY CARRIER (1028). (6.) DEMURRAGE OR CAR-SERVICE CHARGES (1029). (7.) DISCRIMINATION BY CARRIERS (1029). (8.) EMBARGO (1029). (9.) FACILITIES, EQUIPMENT AND CARS (1029). (10.) F. O. B. SHIPMENTS (1031). (11.) LIABILITY FOR Loss OR DAMAGE (1031). (12.) LIMITATION OF LIABILITY (1031). (13.) BATES, CHARGES AND CLASSIFICATIONS (1032). (14.) EECEIPT AND CARRIAGE OF GOODS (1033). (15.) EOUTING OF SHIPMENT (1033). (16.) STOPPAGE IN TRANSIT (1033). (170 SWITCHING (1033). (18.) TICKETS AND REDEMPTION OF TICKETS (1034). CARRIERS.- (1.) BAGGAGE: Liability of initial carrier for baggage where loss occurs on line of connecting carrier 608 Right of carrier to limit its liability for baggage 762 Whether carrier liable for time of salesman lost on ac- count of delay in transportation of baggage 502 Liability of carrier for loss of salesman's samples 88 Whether carrier liable for loss or damage to baggage where trunks contain samples 514 (2.) BILL OF LADING: Obligation to give bill of lading 326 Effect of uniform bill of lading and right of carriers to adopt same 326 The uniform bill of lading and its conditions 506 Title to goods where draft attached to bill of lading 235 Whether title to goods in transit passes by payment of draft attached to bill of lading 478 Effect of attaching bill of lading 193 Effect of "order and notify" bill of lading 568 Effect of stamping "owner's risk" on shipping receipts. . 570 Whether relief from liability when bill of lading or ship- ping receipt is stamped "received at owner's risk of dam- age or breakage " 508 Reserving title in shipper to taking bill of lading in his name 193 Delivery of bill of lading passing title to goods in transit 193 (3.) CONSIGNOR AND CONSIGNEE: Fight of consignor to change destination of goods while in v transit 1003 Right of consignee to control shipments when title to same is in consignor 1010 Whether prepayment of freight by consignor throws risk of transit upon him 216 Effect of prepayment of freight by consignor upon title of goods 638 1029 Effect of various freight allowance phrases as imposing risks of transit on consignor 214 Violation of instructions of consignee as operating to re- tain title in consignor during transit 193 Mistake in address as imposing risk of transit on vendor or upon shipper 193 Eesponsibility of consignor when goods shipped C. O. D. . 235 Liability of consignee where draft payable on arrival and inspection 435 Liability of consignor for freight charges when consignee refuses to accept goods or becomes bankrupt 585 Where vendor bound to send goods to purchaser, title re- mains in vendor until delivered 193 (4.) DELAY AND DAMAGES THEREFOR: Liability for delay and measure of damages there- for 95, 397, 614, 678 Liability of carrier for damages arising from delay of goods in transit 397 Liability for delay in delivery of shipments and measure of damages therefor 614 Liability for goods destroyed by act of God where goods would have been saved but for unreasonable delay of carrier 193 Liability of initial carrier for delay occurring on line of connecting carrier 277, 397 Liability of carrier for delay caused by mobs 215 Liability for goods frozen in transit when delivery is de- layed . , 298 Whether carrier liable for time of salesman lost on ac- count of delay in transportation of baggage 502 (5.) DELIVERY OF GOODS BY CARRIER: Place where carrier must make delivery to consignee 366 Whether personal delivery to consignee required 218,855 Duty to make personal delivery to consignee 855 Delivery to carrier is ordinarily delivery to consignee. . .. 193 Whether obligated to deliver cars upon private side-tracks connected with its own line 218 Whether can be coinpelled to deliver on side-track 366 Cannot be compelled to deliver beyond own termini 366 Whether initial carrier can be compelled to make delivery on terminals of connecting carrier 922 As to what delivery can be required under an Interstate rate to Chicago 922 Eesponsibility of for delivery of shipment after instruc- tions from consignor not to deliver to consignee 943 Duty to notify consignees of arrival of freight. . .107, 369, 585 Duty to give notice to consignor of arrival of goods. ..... 369 Whether carriers by water must give notice of arrival of goods 369 3030 Duty of carrier to notify consignor where consignee re- fuses to accept goods . o85 (6.) DEMURRAGE OR CAR-SERVICE CHARGES: Validity of 48-hour rule as to free time for loading or un- loading of cars 69 Eeasonableness of 48-hour period of detention where the cars are of large capacity 205 Bight to exact demurrage charges under the laws of the various states 56, 819 Lien of carriers for demurrage charges 56, 819 Eight to discriminate in respect to demurrage charges.. 69 Liability of consignee for demurrage 603 Whether consignee can be compelled to pay demurrage accruing at point of shipment 589 Demurrage on goods detained on account of embargo .... 624 Whether carrier can refuse delivery on private side tracks on account of unpaid demurrage charges 218 Eight to assess car service or demurrage charges without making a tender of the cars 488 Bight of a carrier to assess demurrage charges for private cars 819 (7.) DISCRIMINATION BY CARRIERS: What constitutes unjust discrimination 486 Bight to compel carrier to transport goods without dis- crimination 592 Bight of carrier to discriminate in the use of its tracks or terminal facilities 559 Eight to discriminate in giving of depot privileges 829 Discrimination in the matter of forwarding cars in reliev- ing a congestion at a junction point as a result of an em- bargo 734 (8.) EMBARGO: Effect of an embargo laid by carriers against transporta- tion of goods 397 Effect of an embargo against receipt of freight from con- necting lines 559 Discrimination in the matter of forwarding cars in reliev- ing a congestion at a junction point as a result of an em- bargo 734 (9.) FACILITIES, EQUIPMENT AND CARS: Duty to furnish proper equipment 552, 621 Duty to supply grain doors for cars used for the shipment of stoneware 983 Duty to furnish suitable cars 427 Duty to furnish fifty foot furniture cars 552, 621 As which carrier is obligated to furnish cars in the case of connecting lines 550 Whether agreement of carriers in reference to equipment constitutes pooling 621 1031 (10.) F. O. B. SHIPMENTS. (See Sales.) Meaning of F. 0. B 490 F. 0. B. shipments and the effect of equalization of freight rates 351 Effect of sales F. 0. B. upon title of goods 638 When title passes from seller to purchaser where goods sold " F. O. B. common shipping point " 435 In whom title rests where goods sent "F. 0. B. destina- tion" or on approval with privilege of examination or C. O. D 193 Effect of a contract reserving title in vendor until pay- ment where goods are sold F. O. B. a certain point there to be loaded in cars with other goods 626 Title to goods in transit when sold ' ' coast freight al- lowed " 638 As to who is responsible for goods in transit in case of F. O. B. shipments 963 As to who sustains loss on goods damaged in transit where goods are sold "F. O. B. point of shipment" 236, 824, 853 Liability of consignor for loss in transit where goods sold F. O. B. shipping point 824 Upon whom risk of transportation of goods falls when sold " F. O. B. point of shipment " 853 On whom risk of loss or damage will fall where goods shipped by lake and sold F. O. B. dock 402 Liability of consignee for freight where sale is made F. O. B. shipping-point 306 Whether consignee can change place of delivery of ship- ment when such shipment is sent F. O. B. freight prepaid 1010 (11.) LIABILITY FOR Loss OR DAMAGE: (For liability for loss from delay, see Carriers delay.) Liability as an insurer and when such liability ceases in Illinois 369 Liability for loss enroute 154 Claims against carrier for breakage 424 Whether carrier can insist on allowance for ' ' usual break- ages ' ' when claim made for damages 424 Liability for conversion 754 Liability for appropriating coal in transit 157 Liability of carrier issuing bill of lading before receipt of goods .' 824 Liability for delivery without production of bill of lading 754 Liability for damages when delivery is made without pro- duction of bill of lading where bill of lading reads ' ' notify ' ' instead of ' ' order and notify " 754 Liability of initial carrier for acts of connecting carrier in delivering goods without production of bill of lading where goods are shipped to order of consignor with sight draft attached to bill of lading 605 1032 Whether carrier liable for damages when it receives goods to be carried by a designated route and deviates from the route named in the bill of lading 987 Liability of loss by floods and upon whom loss falls, as be- tween consignor and consignee where carrier not liable. . 193 Liability for goods frozen in transit 427 Liability of, for goods destroyed by fire if goods not re- moved within 48 hours 806 Upon whom loss falls where goods destroyed on dock. . 490 Liability of carrier where true nature of goods not dis- closed 427 Liability of carrier where goods lost by sinking of lighter 824 Liability of carrier for loss of goods destroyed by mob. . 215 Liability for goods delivered at prepay station 335, 845 Liability for loss or damage to goods when delivered at non-agency or prepay station 335 Liability for loss of samples carried as samples 88 Whether liable for loss or damage to baggage where trunks contain samples 514 Liability of carrier where package incorrectly addressed through fault of shipper 312 Liability for transferring freight consigned to point not on its own lines to another carrier in violation of ship- pers ' instructions 312 Liability for goods destroyed in warehouse after arrival at destination 305 Liability of carriers where goods destroyed after wrongful refusal to deliver 193 Whether shipper can recover more than agreed valuation where goods damaged in transit 570 As to who sustains loss on goods damaged in transit where consignor pays 236 Duty of carrier to lessen injurious effects of calamity caused by act of God for which carrier is not responsible 193 (12.) LIMITATION OF LIABILITY: Right of carriers to limit liability 326, 424 Right to limit Common Law liability 424 Limitation of liability by carrier for loss or damage to trunks containing samples of merchandise 762 Assent of shipper required to limitation of liability.... 754 Express assent required in Illinois to limitation of Car- riers ' liability 508, 849 Necessity of an express assent of shipper to limitation of liability in Illinois 508 Validity of special contracts releasing carriers' liability. 522, 564 Legality of special contract between shipper and carrier releasing carrier 's liability 522 Validity of special contracts releasing liability as ware- housemen . 566 1033 Whether shipping receipt limitation of liability 506 Necessity of condition in contract limiting liability of carrier 326 Right to limit liability in excess of certain valuation. . . .138, 713 Burden of proof on carrier to exempt himself from lia- bility 193 Validity of clause in bill of lading imposing penalty for over-loading cars 422 (13.) RATES, CHARGES AND CLASSIFICATIONS. (See also Carriers Demurrage; Carriers Switching; Demurrage; Interstate Com- merce Act) : What constitutes legal rate 169 Right of shipper to combine shipments to obtain carload rates 98, 110 Right of carrier to make per diem charge for cars in ad- dition to switching charges 479-481 Liability of shipper for per diem charges 557 Legality of per diem charges for rental of cars in Mis- souri 550 Owners risk rate on pottery 424 Right of carrier to charge for weighing cars 730 Right to charge storage on baggage 514 Right to charge storage on freight 107 Whether ' ' party rates ' ' can be restricted to theatrical parties 202 Power of carrier to limit joint rate to particular connect- ing line 419 Whether can charge more for short than for a long haul . 599 Whether through freight rate greater than combination of two locals is violation of Interstate Commerce law 474 Whether unlawful to use combination of two local rates where through rate is greater than combination of the locals 967 Legality of through rate greater than sum of local rates caused by changes in classification of shipment 1008 Duty of shipper to inspect tariffs to ascertain legal rates where quotations conflict 169 Duty of shipper to ascertain legal rate where quotations conflict 169 Whether contract for rate different than published rate is binding on carrier 957 Right to charge tariff rate before delivery of goods where rate has been incorrectly quoted 957 Right to break open packages for purpose of ascertaining if goods are properly classified 284 Right of freight inspectors to change the classification of freight after shipment 857 Liability of shipper for freight charges where goods are shipped under wrong classification 857 1034 (14.) RECEIPT AND CARRIAGE OF GOODS: What freight carrier justified in refusing 762 Whether probable strike of carriers' employes is sufficient excuse to refuse shipments 592 Whether carrier obligated to receive cars of connecting line where consigned to parties located along its tracks. . 559 Carriage of perishable goods 427 Duty of carrier where consignee refuses to accept goods. . 585 The Vessel-Owners ' Limited Liability Act 824 Effect of proposed statutes to penalize railroad companies for not moving freight within five days after offer of de- livery 354 (15.) ROUTING OF SHIPMENTS: (See Carrier, Consignor and Consignee.) Right of consignor to control routing of shipments 937 Right of consignor to change destination of goods while in transit 1003 Right of carrier to refuse shipments unless permitted to route same 937 Right of owner to change shipping instructions on goods in transit 568 Whether consignee can change place of delivery of ship- ment when such shipment is sent F. O. B. freight prepaid. 1010 (16.) STOPPAGE IN TRANSITU: Right of stoppage in transitu where bill of lading taken in name of vendee as consignor and in name of purchaser from vendee as consignee and as to the effect of bank- ruptcy of vendee 909 Right of stoppage in transitu where goods shipped to third person 909 (17.) SWITCHING: (See also Interstate Commerce): Liability of shipper for switching charges 557 Reasonableness of switching rates 481 As to what are the legal switching rates under the Illinois Maximum rate schedules 922 Whether shipper liable for switching charges to initial carrier where contract made for delivery of car 557 Whether carrier can assess per diem charge in addition to switching charge 922 As to what delivery can be required at purely local switching stations in Chicago and in Illinois 922 Whether carrier can refuse to accept cars offered for switching service for delivery on its team tracks 922 Right to refuse to accept cars offered for switching serv- ice for delivery on its team tracks or other tracks when originating on a connecting line 922 Whether a carrier can refuse to handle shipments for switching from points within city limits because of a strike 592 1035 Whether carrier can refuse to switch cars on private side- tracks because of unpaid demurrage charges on other cars 218' Whether carriers performing local switching subject to Interstate Commerce Act 931 As to whether under Interstate Commerce Act carriers can be compelled to interchange facilities and switching. 917 Whether carriers performing a terminal switching service can be compelled to make through routes and rates under Interstate Commerce Act 922 Whether carrier engaged in Interstate Commerce perform- ing a terminal switching service on traffic originating upon its own terminal in Chicago can be compelled to make and publish through rates on interstate shipments of such traffic with its connections at Chicago 931 Whether it is lawful under the Interstate Commerce Act for a carrier to absorb a switching charge 992 (18.) TICKETS AND BEDEMPTION OF TICKETS: Bedemption of coupons on mileage tickets 207 Whether carrier can be compelled to redeem unused por- tion of lost mileage ticket 953 Limitation of time for redemption of mileage books 517 Transferability of mileage tickets and right of railroad company to take up the same for misuser 121 CABRIEBS BY WATEB. The application of the Harter Act.. 490, 824 The application of the Vessel Owners ' Limited Liability Act 490, 824 What constitutes delivery to 490 Limitation of liability of ; . 490 Whether carriers by water must give notice of arrival of goods 369 The Vessel-Owners ' Limited Liability Act 824 Liability of carrier where goods lost by sinking of lighter 824 Liability and upon whom loss falls where goods are de- stroyed on dock 490 CAB SERVICE. (See Carriers, Demurrage.) CENSUS. Whether manufacturers are compelled to answer in- quiries in relation to their business requested by census bureau 524 Whether answers to certain questions can be compelled. . 636 CHATTEL MOBTGAGES Legality of conditional sale contract reserving title in vendor 337 Validity of unrecorded mortgage against a trustee in bankruptcy 780 CHECKS. Power of salesman to endorse 470 Effect of sending a check in full settlement of an accovint where amount of check is less than amount due 371 CHICAGO (See Cities.) HILD LABOB LAW. Constitutionality of Illinois Act of 1903 187 Whether new affidavit required under the law of 1903 .... 199 1036 Liability of employer where child is injured by machinery upon which he is not employed 208 Employment of children upon hazardous machinery 873 Whether law prohibits employment of minors on steam machinery 210 Whether adding turpentine to varnish and mixing stains by children is within prohibition of law 234 Employers' liability where false affidavit has been filed. . . 803 Validity of amendment in relation to seating women.... 42 CITIES. Whether firm buying second-hand machinery must take out city license as a second-hand dealer 767 Whether manufacturers compelled to pay license fee to City of Chicago 217 Amount of fees that should be charged for inspecting yard measures 875 Eight of city council to grant to merchants right to build platforms for bulkheads in public streets 878 As to whether duty is imposed, under Chicago ordinances, upon owner or upon lessee of property to erect stand pipes 775 Whether city can require licensed engineer in building supplied with steam from neighboring plant 282 Validity of rules as to size of blow-off pipes 515 What constitutes steam pressure under Chicago ordinances 320 Eight of city to compel manufacturer to change steam boilers to comply with rulings of board of inspectors 417 Meaning of ordinance requiring licensed engineer to be in constant attendance CITY ELECTION. What constitutes COAST FEEIGHTS ALLOWED. Effect of, on title to goods sold 638 C. O. D. (See Sales, Carriers, Express Companies.) Eesponsibility of consignor when goods shipped C. 0. D.. . 235 COLLECTIONS. (See Banks.) COMMEECE. (See Carriers, Foreign corporations, Interstate Com- merce Act.) A CAR COMPANIES. Eight of state to tax private cars of foreign corporation used exclusively in hauling its own product 274 The Michigan law of 1905 imposing a tax upon private car lines 888 The Texas law of 1905 levying taxes on gross receipts of private car lines 864 Validity of Indiana law imposing tax on companies con- veying freight and passengers 37 1037 B FOOD LAWS. Proposed Iowa Pure Food Law and validity of same as to goods imported from other states 373 Constitutionality of Pure Food Law of South Dakota and effect of provisions therein requiring place of manufac- ture, etc., to be printed on labels 687 C FOREIGN CORPORATIONS. Power of state to compel foreign corporations engaged solely in interstate commerce to comply with regulations before instituting suit 44, 54, 497, 946 Whether foreign corporations doing interstate commerce business can be compelled to comply with the law of Kansas as condition of maintaining suit 445 Applicability of Wisconsin Law of 1905 to interstate com- merce transactions 838 D LICENSES. Right of city to collect license fee from non-resident sale agents 3 Constitutionality of Pure Paint Law of North Dakota and right of legislature to fix standard of pure paint... 700 F SEWING MACHINES. Payment of license fee for sale of sewing machines in foreign state where title to same does not pass until de- livery 253 Validity of Virginia statute requiring license fee for privilege of selling sewing machines in that state 680 Validity of license tax on sewing machines 41 G TAXATION. Taxation of goods held in warehouse after reaching des- tination when held for the purpose of being resold 654 COMMERCIAL PAPER. (See Banks, Bills and Notes, Negoti- able Instruments.) COMMON CARRIERS. (See Carriers, Express Companies.) COMPOSITION. What constitutes, and the effect thereof 392 COMPROMISE. Effect of sending a check in full settlement of an account where amount of check is less than amount due 371 CONDEMNATION. As to taking property to widen a street, the measure of damages therefor, and effect upon lease of the property taken 389 1088 CONDITIONAL SALES. (See Chattel Mortgages.) Legality of conditional sale contract reserving title in vendor 337 CONFLICT OF LAWS. What laws are applicable where note is executed in one state and payable in another 899 CONNECTING CAEEIEBS. (See Carriers Interstate Commerce.) Effect of receipt of freight consigned to point beyond carriers ' own lines 608 Summary of statutes of various states in reference to duties and liabilities of initial and connecting carriers.. 861 Whether, initial carrier liable for default of connecting carrier 608 Liability of initial carrier where loss of baggage occurs on line of connecting carrier 608 Liability of initial carrier for delay occurring on lines of connecting carriers 277, 397 Effect of an embargo against receipt of freight from con- necting lines 559 Liability of initial carrier for acts of connecting carrier in delivering goods without production of order bill of lading 605 Liability of initial carrier for transferring freight con- signed to a point not on its own lines to another carrier in violation of shippers' instructions 312 Power of initial carrier to limit joint rate to particular connecting line 419 Whether carrier obligated to receive cars of connecting line when consigned to parties located along its tracks. . . 559 Bight of a carrier to refuse to accept cars offered for switching service for delivery on its team tracks or other tracks where originating on a connecting line 922 Whether under the Interstate Commerce Act carriers can be compelled to interchange facilities and switching. . . . 917 Whether carriers performing a terminal switching service can be compelled to make through routes under the Inter- state Commerce Act 922, 931 CONSIGNOR AND CONSIGNEE. (See Sales, Carriers, Con- tracts.) CONSPIRACY. (See Boycott, Labor Unions.) Whether it is lawful on the part of a number of employers to agree not to employ union labor 545 Liability of employees for damages caused by the action of a labor union 71 Liability of labor union for boycott against particular goods 308 Liability of combination of employers for black-listing striking employees 140 CONSTITUTIONAL LAW. (See Commerce, Interstate Com- merce Act.) ANTI-TRUST STATUTES. Constitutionality of Anti-Trust statutes 381 1039 CARRIERS. Effect of proposed statutes to penalize railroad companies for not moving freight within five days after offer of delivery 354 Right of state to tax private cars of foreign corporation used exclusively in hauling its own product 274 The Texas law of 1905 levying taxes on gross receipts of private car lines 864 The Michigan law of 1905 imposing a tax upon private car lines 888 CENSUS. Whether manufacturers are compelled to answer in- quiries in relation to their business requested by census bureau 524 Whether answers to certain census questions can be com- pelled 636 EMPLOYMENT. Law requiring blowers to be used on metal polishing machinery 59 Constitutionality of child labor law 187 Validity of law requiring that employes shall be allowed time to vote 429 The Act prohibiting withholding any part of wages of laborers under guise or pretext that they are gifts or gratuity 243 Constitutionality of law, prohibiting deductions from wages of employees 179 Validity of Illinois statute of 1903 regulating payment of wages by corporation 294 Validity of Illinois law prohibiting the assignment of wages 104 Validity of Illinois law requiring employer to state that there is a strike at his plant when advertising for men to take the place of strikers 222 Constitutionality of Truck Law of Illinois 379 FLAGS. Validity of law prohibiting use of national flag for advertising purposes 1 Right to use flag for advertising purposes 843 FOOD. Constitutionality of Pure Food Law of South Dakota and effect of provisions therein requiring place of manu- facture, etc., to be placed on labels 687 Proposed Iowa Pure Food Law and validity of same as to goods imported in other states 373 FOREIGN CORPORATIONS. Right of state to impose conditions on foreign corporation engaged in interstate commerce. . 946 Right of state to prohibit foreign corporation engaged solely in interstate commerce from instituting suit 497 Validity of foreign corporation law of New York 315 Validity of law imposing taxes on entire capital stock of foreign corporation 247 PAINT. Validity of Pure Paint Law of North Dakota of 1905 and effect of provisions therein requiring the ingre- dients of paint to be stated on the label, and right of leg- islature to fix a proprietary standard for pure paint. . . . 700 SEWING MACHINES. Payment of license fee for sale of saw- ing machines in foreign state where title to same does not pass until payment 253 Validity of Virginia statute requiring license fee for privilege of selling sewing machines in that state 680 CONSULTING ENGINEER. Liability for installation of ma- chinery that does not prove satisfactory 433 CONTRACTORS. Liability of boiler manufacturer for personal injuries sustained by sub-contractor or his employees during the erection of boiler 632 CONTRACTS. (-See Agency.) What constitutes a contract and the effect thereof 392 Whether entire or severable 322 Validity of employment contract 151, 294 Validity of contracts entered into on Sunday 391 Validity of insurance policies dated on Sunday 404 Legality of conditional sale contracts reserving title in vendor 337 What constitutes a valid and enforcible guarantee of an account 272 Authority of commission salesmen to make contracts. . . . 201 Liability of employer for contracts made by his em- ployees or agents 511 Whether lumber broker is agent of his principal so as to bind latter by his contract 629 Whether orders taken by traveling salesmen constitute contracts 165 Liability of vendor of coke for loss when coke sold by oven weights 154 Whether manufacturer or dealer liable for damages when goods are incorrectly labelled 458 Liability of vendee for cancelling order after acceptance. 300 Whether acknowledgement of salesman's order constitute an acceptance 200 Whether salesman has power to endorse the principal's name upon checks 470 Whether purchaser can accept part of order and reject balance 322 Right to recover on implied contract where express con- tract exists 332 Right of consignor to discount upon the amount of freight advanced 306 F. O. B. shipments and the effect of equalization of freight rates 351 Penalty or liquidated damages 151 Effect of printed conditions on order 322 COPYRIGHT. Of trade marks 432 CORPORATIONS. (See Foreign Corporations, Constitutional Laic, Taxation.) Right to compel individuals to incorporate 113 1041 Right to copyright name 74 Right of unincorporated association to use corporate name 130 Right to pass dividends 58 Right to purchase stock in other corporations 12 Right of Illinois corporation to hold stock in a subsi- diary corporation 176, 177 Power to hold real estate 394 Effect of holding of real estate by corporations 394 Liability of a parent corporation for acts or measures of subsidiary companies 750 Right of Illinois corporation to prevent foreign corpora- tion from using name similar to that of the Illinois cor- poration 736 Liability of corporation on notes and acceptances issued in name of corporation by officers unauthorized to execute same 963 Ultra vires business 90 Whether organized for ' ' purely manufacturing purposes ' ' 13 "Purely manufacturing purpose" what is 85 Advantage of incorporating in New Jersey 51 Necessity of foreign corporations filing annual report in Illinois 15 Filing annual report and forfeiture of charter for failure to do so 11 Necessity of making annual reports to Secretary of State and effect of failure to do so 416 Necessity of Illinois corporation publishing a notice of its annual meeting 753 Cancellation of charter of Illinois corporations for fail- ure to file annual report 120 The Anti-trust Laws of Illinois 381 Necessity of filing Anti-trust affidavit annually in Illinois 133 Whether necessary to file Anti-trust affidavit in absence of notice from Secretary of State 841 Form of Anti-trust affidavit where it is doubtful whether corporation has violated law 183 Whether Illinois corporation can make Anti-trust affidavit when it has agreement in reference to prices, etc., with New York corporation having same stockholders, directors and officers as Illinois corporation 1000 Whether labor and labor unions are within provisions of Anti-trust Law 408 Taxation of capital stock 85 In reference to filing schedules as to capital stock assess- ments in view of 1905 law 838 Whether manufacturing corporation which carries on other business not authorized by charter is subject to assessment on its capital stock 90 1042 Basis of assessment of capital stock of corporation whose stock is subject to assessment by local assessor . . 439 As to whether corporation doing transfer business is exempt from assessment on its capital stock 935 Effect of improper service of process in State of Texas on corporation 317 Validity of Illinois statute of 1903 regulating payment of wages by corporation 294 Validity of law prohibiting corporations from making deductions from wages of workmen 379 COUNTERFEITING. Whether use of aluminum discs for adver- tising constitutes counterfeiting 500 CREDITORS. (See Debtor and Creditor.) CRIMINAL LAW. Whether use of aluminum discs used for advertising constitutes counterfeiting 500 Rendition of fraudulent expense accounts by salesmen, where prosecuted and for what 83 D DAMAGES. Agreed damages for breach of employment contract 151 For wrongful use of trade mark 341 Whether manufacturer or dealer liable for damages when goods are incorrectly labeled 458 Liability for delay in delivery of shipment, and measure of damages therefor 614 Right to set-off, where liquidated and where unliquidated 179 MEASURE OF DAMAGES. Measure of damages for taking of property by condemna- tion 389 Measure of damages for delay of goods in transit 678 Measure of damages for breach by vendee of contract to purchase goods 385 Measure of damages where vendor fails to deliver goods. 165 Measure of damages for refusal of vendee to accept goods 300 DEBTOR AND CREDITOR. Effect of Bulk Sales Law of Illi- nois and liability of an attaching creditor under the law. 662 Presumption of fraud W 7 hen sale made without compli- ance with bulk sales law, and whether sales are conclu- - sively fraudulent or only prima facie 666 Validity of unrecorded mortgage against a trustee in bankruptcy 780 Effect of sending a check in full settlement of an account where amount of check is less than amount due 371 As to what constitutes a composition with creditors, and the effect thereof 392 DELAY. Liability of carrier for. (See Carriers, sub. titl. Delay.) DEMURRAGE. (See Carriers.) 1043 Validity of 49-hour rule as to free time for loading or unloading of cars 69 Reasonableness of 48-hour period of detention where cars are of large capacity 205 Right to exact demurrage in the various states 56, 819 Right of carrier to exact demurrage charges and whether carrier has lien on goods for same 56, 819 Right to discriminate in respect to 69 Liability of consignee for demurrage 603 Whether consignee can be compelled to pay demurrage accruing at point of shipment 589 Demurrage on goods detained on account of embargo. . . . 624 Whether carrier can refuse delivery on private side-tracks account of unpaid demurrage 218 Right to assess car service charges without making tender of cars 488 Right of carrier to assess demurrage charges for private cars 819 Right of carrier to a lien for demurrage charges 56,819 DISCOUNT. Right of consignee to discount upon the amount of freight advanced 306 DUTY. (See Census.) As to whether duty to erect standpipes under Chicago ordinances is imposed upon owner or upon lessee 775 E ELECTIONS. Right of employer to specify time of day for employes to vote 388 As to what elections employes are entitled to leave of absence to vote 395 Validity of law requiring that employes shall be allowed time to vote 429 Whether employer is liable for pay of employes taking the time allowed to vote 431, 438 Whether employes must be paid for two hours for time allowed for voting 438 EMANCIPATION. When child emancipated so as to be entitled to wages 234 EMBARGO. (See Carriers, Demurrage.) EMPLOYMENT. (See Child Labor Lair, Garnishment, Labor Unions.) Validity of contract of 151 Validity of employment contract 294 Liability of employer for contracts made by his employes or agents 511 Liability of an employer for physician 's charges for vac- cination of employe or for damages from unsatisfactory vaccination 469 Liability of employer for attorneys' fees in suit by em- ploye for wages due 179 Employers' liability where false affidavit has been filed. . 803 Liability of employer where child is injured by machinery upon which he is not employed 208 Liability of employes for damages caused by the action of a labor union 71 Liability of employers for black-listing striking employes 140 Whether it is lawful on the part of a combination of em- ployers to agree not to employ union labor 545 Arrest and prosecution of pickets during strike 656 Right to restrain picketing 596 Whether law prohibits employment of minors on steam machinery 210 Employment of children upon hazardous machinery 873 Whether adding of turpentine to varnish and mixed stains comes within prohibition of the Child Labor Law 234 When minor must institute suit for personal injuries 319 Whether it is necessary for plaintiff to obtain judgment against defendant before making demand upon employer. 1016 Statute of limitations in case of death 287 Eight of employer to specify time of day for employes to vote 388 As to what elections employes are entitled to leave of absence to vote 395 Validity of law requiring that employes shall be allowed time to vote 429 Whether employer is liable for pay of employes taking the time to vote 431 AVhether employes must be paid for two. hours for time allowed for voting 438 Right of employer to make deductions from wages of em- ployes on account of mistakes, errors, etc 179 Validity of law prohibiting deductions from wages of workmen 379 Validity of Illinois statute of 1903 regulating payment of wages by corporations 294 Obligation to pay employe who leaves before regular pay day 84 The Act prohibiting withholding any part of wages of laborers under guise or pretext that they are a gift or gratuity 243 Right of employe to assign his wages 104 Right to assign wages 112 Whether minor can legally assign his wages 234 Sufficiency of notice to employer of assignment of wages by employe 384 Necessity of employer paying assignment of wages when made by power of attorney 519 In reference to assignment of wages under Illinois law of 1905 817 ENGINEER. Liability for installation of machinery that does not prove satisfactory 433 ENGINEEES. (See Steam Engineers.) EVIDENCE. Whether carbon copies of letters admissible in evi- dence the same as letter press copies 378 EXECUTION. (See Seal Estate.) Method of procedure to obtain a second levy under judg- ment on property of defendant 594 EXPOSITIONS. Eight of manufacturer to vise facsimile of expo- sition awards for advertising purposes 541 EXPRESS COMPANIES. (See Carriers.) Duty to deliver direct to consignee without additional charge 115 Extent of responsibility of express companies on ship- ment of sealed packages upon which no value has been placed 713 Whether shipper can recover express charges on shipment destroyed in transit 813 Liability of express company for C. O. D. shipment de- stroyed by fire before delivery 855 In reference to general contract with express company by Avhich it limits its liability 849 F FACTORIES. Whether manufacturers compelled to pay factory license fee to City of Chicago 217 Factory-Inspection law of Missouri 96 FEDERAL COURTS. Whether bound by state decisions on lia- bility of collecting bank 576 FIRE. Destruction of bailment by 469 FIRE ESCAPES. As to whether duty is imposed under Chicago ordinances upon owner or upon lessee of property to erect stand-pipes 775 FIRE INSURANCE. (See Insurance.) FLAG LAW. Validity of 1, 843 FLAGS. Right to use flag for advertising purposes 1, 843 FLOODS. Liability of carrier for damage by 193 F. O. B. (See Carriers, sub." tit. F. O. B. Shipments, index page 1030; Sales.) FOOD. (See Constitutional Law.) Power of Illinois Food Commissioner to adopt rules.... 8 Right of Illinois State Food Commissioner to compel manufacturers to label their goods 8 Ruling of Illinois Food Commissioner as to sale of goods to dealers in other states 10 Right of Wisconsin Food Commissioners to prohibit sales of lemon extract which is not equal to fixed standard in case where label on bottle correctly states ingredients . . . 460 ,' 1046 The labeling of food products under regulations of de- partment of agriculture 573 The labeling of imported food products 573 Constitutionality of Pure Food Law of South Dakota and effect of provisions therein requiring place of manufac- ture, etc., to be placed on labels 687 Proposed Iowa Pure Food Law, and validity of same as to goods imported in other states 373 Whether Food Commissioner liable where he makes incor- rect analysis in good faith 721 Improvement of common article of food by adulteration. . 460 Application of pharmacopoeia to articles of food 460 FOREIGN CORPORATIONS. (See Commerce, Constituional Law.) The subject is arranged under the following heads: (1.) MEANING OF "DOING BUSINESS" BY FOREIGN COR- PORATIONS (p. 1045). (2.) MAINTENANCE OF SUIT BY FOREIGN CORPORATIONS (1046). (3.) TAXATION OF FOREIGN CORPORATIONS (1046). (4.) FOREIGN CORPORATION LAWS OF THE VAEIOUS STATES AND QUESTIONS ARISING THEREUNDER (1046). MEANING OF DOING BUSINESS. DOING BUSINESS. What constitutes 26 Whether maintenance of room as headquarters for sales- men constitutes doing business 3 Whether occasional sales of samples by foreign corpora- tions constitutes doing business 117 Whether incidental sales by traveling salesmen to fill ' ' hurry orders ' ' constitutes doing business 14 Doing business in foreign state through medium of part- nership to avoid compliance with foreign corporation law. 177 Whether consignment of goods constitutes doing business. 347 Whether installation of apparatus as incidental to its sale constitutes doing business 289 Whether making shipments from other states through third persons constitutes doing business 263 Whether maintenance of branch office constitutes doing business 242 Whether carrying of stock of goods and making deliveries therefrom constitutes doing business 213, 349 Whether maintenance of transfer house in foreign state constitutes doing business 249, 263, 345 Payment of license fee for sale of sewing machines in foreign state where title to same does not pass until de- livered 253 Formation of subsidiary corporation in foreign state to obviate compliance with foreign corporation law 176 1047 ii MAINTENANCE OF SUIT BY FOREIGN CORPORATIONS. Eight of state to prohibit foreign corporation engaged solely in interstate commerce from instituting suit 497 Power of state to compel foreign corporations, engaged . solely in interstate commerce to comply with foreign cor- poration law as a condition of maintaining suit 33, 123 III TAXATION OF FOREIGN CORPORATIONS Act imposing tax on entire capital stock 47, 247 Whether subject to taxation on bank deposit 122 The Iowa law taxing private cars of foreign corporations. 274 Constitutionality of Michigan law of 1905 imposing a tax on private car lines 888 Constitutionality of Texas law of 1905 imposing a tax on private car lines 864 IV FOREIGN CORPORATION LAWS OF THE VARIOUS STATES AND QUESTIONS ARISING THEREUNDER. CALIFORNIA 642 CANADA. (See Manitoba.) COLORADO 44, 54, 123 What constitutes doing business in Colorado 16, 33 ILLINOIS 12, 17 Necessity of filing annual report in Illinois 15 Necessity of filing Anti-Trust affidavits in Illinois 155 Kight of receiver of insolvent fire insurance company to collect premium where company not licensed to do busi- ness in Illinois 50 Right of Illinois corporation to prevent foreign corpora- tion from using a name similar to that of the Illinois corporation 736 Necessity of foreign insurance company doing business in Illinois, to comply with Insurance Laws of Illinois 771 Whether recovery can be had on policy in case of loss where foreign fire insurance company not authorized to do business in Illinois 802 INDIANA 17, 80 What constitutes doing business in Indiana 32 INDIAN TERRITORY 546, 649 IOWA 17, 263 The law of Iowa taxing private cars of foreign corpora- tions 274 KANSAS. The law of Kansas and whether making of consign- ment contracts constitutes doing business in Kansas.... 93 1048 Whether foreign corporations doing interstate commerce business can fce compelled to comply with the law of Kansas as condition of maintaining suit 445 Whether foreign corporation which has not complied with the laws of Kansas can enforce a claim against a resi- dent by assigning the name to an individual and bring- ing suit in his name.' 792 KENTUCKY. Service of process in Kentucky on customer of company 70 MANITOBA. The law of Manitoba and what constitutes doing business therein 62, 66 MASSACHUSETTS. Validity of law of Massachusetts imposing taxes upon entire capital stock of foreign corporations. . 247 MICHIGAN 17, 717 What constitutes doing business in Michigan 26 The Michigan law of 1905 imposing a tax upon private car lines 888 MINNESOTA 263 What constitutes doing business in Minnesota 59 Effect of subsequent compliance under the law of Minne- sota on the right to maintain suit 68, 77 MISSOURI 310 Effect of subsequent compliance with foreign corporation law of Missouri on the right to maintain suit 310 MONTANA. As to what constitutes doing business in Montana 242 NEBRASKA 17 NEW JERSEY. The law of New Jersey and what constitutes doing business therein 73 Power of the state of New Jersey to compel foreign cor- porations to pay taxes 396 NEW MEXICO. The law of New Mexico and necessity with compliance thereof 658 NEW YORK. The law of New York and the constitutionality thereof 315 What constitutes doing business in New York 42 The law of New York and whether making sales on com- mission constitutes doing business 103 The right to institute action in New York without com- plying with the law 651 NORTH DAKOTA 263 The law of North Dakota and the necessity of the com- pliance therewith 946 OHIO .80,105,642 PENNSYLVANIA 35, 642 The tax laws of Pennsylvania 281 The ' ' Bonus ' ' Law of Pennsylvania 105 Whether Bonus Act of Pennsylvania applicable to cor- porations engaged in interstate commerce 118 Whether book accounts constitute "capital employed" within meaning of Bonus Act of Pennsylvania 280 1049 Whether corporation having complied with act of Penn- sylvania, is obligated to comply with Bonus Act 325 Meaning of "amount of capital actually employed" as used in foreign corporation law of Pennsylvania 53 Whether obligated to pay wholesale guarantee license tax under Pennsylvania law 324 SOUTH DAKOTA . 17, 497 TENNESSEE. The law of Tennessee and what constitutes doing business therein 76 TEXAS 101, 106 The law of Texas, and what constitutes doing business therein 213 Constitutionality of the law of Texas 598 Effect of improper service of process in State of Texas. . 317 The Texas law of 1905 levying taxes on gross receipts of private car lines 864 WISCONSIN 17, 263, 606 What constitutes doing business in Wisconsin 606 Whether installation of machinery constitutes doing business in Wisconsin 332 The law of Wisconsin of 1905 and the validity thereof. . 710 Applicability of Wisconsin law of 1905 to interstate com- merce transactions 838 FORESTALLING. Ordinance prohibiting forestalling of fuel.. 206 FREIGHT. (See Carriers.) FROZEN GOODS. (See Carriers.) Liability of carrier for goods frozen in transit when de- livery is delayed 298 Liability of carrier for 427 FUEL. Forestalling of 206 G GARNISHMENT. Service of notice of demand on employer, and for what period of time employer must hold wages of employees after service of notice of demand. 897 Whether it is necessary for plaintiff to obtain judgment against defendant before making demand upon employer. 1016 GASOLINE. (-See Insurance.) GENERAL ELECTION. What constitutes 395 GUARANTEE. What constitutes a valid and enforceable guaran- tee of account 272 Whether principal and guarantor can be sued jointly. . . . 828 H HORSES. (See Live Stock Commissioners.) Liability of traveling salesmen for loss of 380 HUSBAND AND WIFE. Whether notes signed by wife as ac- commodation surety for her husband in Kentucky, and payable in Illinois, are enforceable against wife under Kentucky statutes 899 1050 INDEPENDENT CONTRACTOR. Liability of boiler manufac- turer for personal injuries sustained by sub-contractor or his employees during the erection of boiler 632 INFANTS. (See Minors.) 319 IN JUNCTION. Right to enforce statute of other states by 301 Injunction against boycotting by labor union against goods of particular firm 308 Right to compel carrier to transport goods without dis- crimination 592 Right to restrain picketing 596 INSPECTION. (See Weights and Measures.) INSURANCE. Right of landlord to collect insurance where ten- ant keeps gasoline on premises in violation of policy Ill Whether acts of co-tenant in keeping benzine on premises in violation of policy can affect right of tenant to recover insurance 186 Whether rule that landlord cannot collect insurance where tenant keeps gasoline on premises in violation of policy is good law 185 Whether landlord can collect proceeds of fire insurance policy where tenant keeps benzine on premises in viloation of policy 379 Validity of policy dated on Sunday 404 Validity of credit insurance policies 415 Whether broker liable for return of unearned premiums on cancelled policies 441 Whether insurance broker entitled to renewal commissions where policies renewed through another broker 441 Validity of assessments upon premium notes, of mutual > insurance companies 771 Extent of liability on premium notes or a resident of Illi- nois insuring in Mutual Fire Insurance Companies of Missouri and Indiana. 771 Necessity of company doing business in Illinois to comply with insurance laws of Illinois 771 The laws of Missouri re Mutual Insurance 771 The laws of Indiana re Mutual Insurance 771 Whether recovery can be had on policy in case of loss where foreign fire insurance company not authorized to do business in Illinois 802 INTERSTATE COMMERCE ACT. (See Carriers, Commerce.) Restriction of party rates to theatrical parties 202 Duty of shipper to ascertain legal rates 169 Legality of through rate greater than some local rates caused by changes in classification of shipment 1008 Whether contract for rate different than published rate is binding on carrier 957 1051 Whether unlawful use of combination of two local rates where through rate is greater than combination of the locals 967 Whether through freight rate greater than combination of two locals is violation of Interstate Commerce Act. . . . 474 Whether after freight consigned from one state to an- other state arrives at destination and is reconsigned to another point in the same state the latter movement is interstate commerce and is subject to the Interstate Commerce Act 967 Whether it is lawful under the Interstate Commerce Act for a carrier to absorb a switching charge 992 Whether shipping goods by express in bulk for distribu- tion is violation of Interstate Commerce Act 993 Whether carriers performing local switching subject to Interstate Commerce Act 931 What constitutes unjust discrimination 486 Whether carriers performing a terminal switching service can be compelled to make through routes and rates under Interstate Commerce Act 922 Whether agreement of carriers in reference to routing of cars constitutes pooling in violation of the Interstate Comemrce Act 621 As to what delivery can be required under an Interstate Commerce rate to Chicago 922 W T hether water transportation lines are snbject to Inter- state Commerce Act 951 Legality of stop-over privileges in transit under Inter- state Commerce Act 914 Whether can charge more for a short than a long haul. . 599 Whether carrier engaged in interstate commerce per- forming a terminal switching service on traffic originat- ing upon its own terminal in Chicago can be compelled to make and publish through rates on interstate ship- ment of such traffic with its connections at Chicago .... 93 1 Whether, under the Interstate Commerce Act, carriers can be compelled to interchange facilities and switching. 9J7 INTERSTATE LAW. Liability in Illinois under New York statute prohibiting the use of name, photograph or pic- ture of any person for advertising purposes 301 (See Conflict- of Laws.) JOINT RATES. Power of carrier to limit joint rate to particu- lar connecting line 419 JOINT TENANCY. (See Husband and Wife.) JUDGMENTS. Method of procedure to obtain a second levy under judgment on property of defendant 594 JUNK DEALERS. Whether firm buying second-hand machinery must take out city license as a second-hand dealer 767 1052 LABELS. (See Food.) Validity of Pure Paint Law of North Dakota of 1905 and effect of provisions therein requiring the ingredients of paint to be stated on the label, and right of legislature to fix a proprietary standard for pure paint 700 Whether manufacturer or dealer liable for damage when goods are incorrectly labeled 458 Effect of provisions of South Dakota Pure Food Law requiring place of manufacture, etc., to be printed on labels of articles ' 687 Labeling of imported food products under regulations of department of agriculture 573 LABOR. (See Employment, Boycott.) Arrest and prosecution of pickets during strike 656 Eight to restrain picketing 596 Whether it is lawful on the part of a combination of employers to agree not to employ union labor 545 In reference to assignment of wages under Illinois law of 1905 817 Employers' liability where false affidavit has been filed. . 803 Whether labor unions within prohibition of Anti-trust Law 408 Employment of children upon hazardous machinery 873 The Alien Contract Law and its application 808 LABOR UNIONS. (See Conspiracy, Boycott.) Right to compel incorporation of 113 Whether within prohibition of Anti-trust Law 408 Liability of labor union for boycott against particular goods 308 Whether picketing is lawful 472 Liability of members of a non-incorporated labor union for damages caused by the action of the union 71 LANDLORD AND TENANT. (See Insurance.) Responsibility of tenant for acts of co-tenant 186 Effect of condemnation of property on leases 389 Right of tenant to lease side of building for advertising purposes 883 Whether under terms of lease landlord or tenant is obli- gated to erect fire escapes 775 As to whether duty is imposed under Chicago ordinances upon owner or upon lessee of property to erect stand- pipes 775 LARCENY. Liability of railroad company and its employes for appropriating coal in transit 157 LEASES. (-See Landlord and Tenant.) LEMON EXTRACTS. (See Food.) LIABILITY. Liability of carriers as warehousemen 806 1053 LICENSES. (See Foreign Corporations.) Whether firm buying second-hand machinery must take out city license as a second-hand dealer 767 LICENSEES. Liability of firm for injuries sustained by police officer during the strike while on a wagon belonging to the firm 716 LIENS. (See Mechanics' Liens.) LIMITATIONS. When minor must institute suit for personal injuries 319 LIVERY STABLES. (See Horse.) LIVE STOCK COMMISSIONERS. Liability of state for horses killed by order of board 134 M MANUFACTURER. Whether manufacturer or dealer liable for damages when goods are incorrectly labelled 458 MASTER AND SERVANT. (See Negligence, Employment, Child Labor, Labor.) Right of employer to make deductions from employes' wages, on account of mistakes, errors, etc 179 Liability of employer where child is injured by machinery upon which he is not employed 208 Liability of hirer of team for injuries caused by traveler 290 When minor must institute suit for personal injuries. ... 319 Liability of boiler manufacturer for personal injuries sustained by sub-contractor or his employes during the erection of boiler 632 MEASURE OF DAMAGES. (See Damages.) MECHANICS ' LIENS. The Law of Illinois 320 MERCANTILE COMPANY. What constitutes 935 MILEAGE TICKETS, Redemption of. (See Eailroads, Carriers) 167 Redemption of coupons on 207 Whether carriers can be compelled to redeem unused portion of 953 MINORS. Whether minor can legally assign his wages 234 MOB. Liability of carrier for loss or delay caused by 215 MONOPOLIES. (See Anti-trust Laws, Anti-trust affidavits.) Validity of agreements fixing price on commodities under Illinois statutes 571 Whether Illinois corporation can make anti-trust affidavit when it has agreement in reference to prices, etc., with New York corporation having same stockholders, direc- tors and officers as Illinois corporation 1000 MUNICIPAL CORPORATIONS. (See Cities.) MUTUAL INSURANCE. (-See Insurance.) N NAME. ( See Corporations.) 1054 NEGLIGENCE. (See Master and Servant, Child Labor.) Liability of employer where child is injured by machinery upon which he is not employed 208 Time within which suit must be commenced in case of death by wrongful act, etc 287 Liability of hirer of team for injuries caused by traveler 290 Liability for goods destroyed while being repaired 469 Liability of boiler manufacturers for personal injuries sustained by sub-contractor or his employes during the erection of boiler 632 Liability of firm for injuries sustained by police officer during a strike while on a wagon belonging to the firm . . 716 Whether food commissioner liable where he makes incor- rect analysis in good faith 721 Employers' liability where false affidavit has been filed. 803 NEGOTIABLE INSTRUMENTS. (-See Bills and Notes.) Liability of guarantor or endorser of note where collect- ing bank fails to remit after maker pays note 386 NEW JERSEY. Advantages of incorporation in 51 NOTES. (See Negotiable Instruments.) NOTICE. Sufficiency of notice of assignment of wages 384 ORDINANCES. (See Cities.) As to whether duty is imposed under Chicago ordinances upon owner, or upon lessee of property to erect stand- pipes 775 OVERLOADING CARS. Validity of clause in bill-of -lading imposing penalty for overloading cars 422 I' PAINT. Validity of Pure Paint Law of North Dakota of 1905 and effect of provisions therein requiring the ingredients of paint to be stated on the label and right of legislature to fix an arbitrary standard for pure paint 700 PARTNERSHIP. Formation of, to avoid compliance with For- eign Corporation Law 177 Liability for debts 177 PARTY RATES. (See Carriers.) PATENTS. Liability of supply house pirating parts and using without right brands or marks belonging to the manu- facturer 618 PAYMENTS. Right of shipper to recover back excess rates. . . . 169 Recovery of excess payments 202 Recovery back of. (See Telephone Companies.) PENAL LAWS. Whether enforceable in other states 301 PER DIEM CHARGES. (See Carriers.) Right to make per diem charge for cars in addition to switching charges 479, 481 1055 PERSONAL INJURIES. Legislation to reduce suits on account of 40 Statute of limitations in case of death 287 When minor must institute suit for personal injuries. . . . 319 PHOTOGRAPHS. Liability in Illinois under New York statute prohibiting the use of name, photograph or picture of any person for advertising purposes 301 PHYSICIANS. Liability of an employer for physician's charges for vaccination of employe or for damages from unsat- isfactory vaccination 469 PICKETING. (See Labor Unions, Injunctions.) Whether lawful 472 POLICE POWER. Limitations of 222 PREPAY STATIONS. (See Carriers (11}.} PRINCIPAL AND AGENT. (See Agency.} PRINCIPAL AND SURETY. Whether principal and guarantor can be sued jointly 828 PRIVATE CAR LINES. (See Commerce, Constitutional Law, Taxation.} PROPERTY. (See Condemnation.) PUBLIC OFFICER. Whether food commissioner liable where he makes incorrect analysis in good faith 721 PUBLIC SERVICES. (See Telephone Companies.) PURE FOOD. (See Food.) PURELY MANUFACTURING PURPOSE. (See Corporations.) What is 85 R RAILROADS. (See Carriers.) Transferability of mileage tickets and right to take up same for misuse 121 Liability for appropriating coal in transit 157 Obligation to redeem mileage tickets when user has not used entire mileage Redemption of coupons on mileage tickets What constitutes part of railroad line Effect of proposed statutes to penalize railroad com- panies for not moving freight within five days after offer of delivery 354 RAILROADS AND WAREHOUSES. (See Carriers.) REAL ESTATE. (See Corporations.) Whether real estate held jointly by husband and wife subject to execution in Indiana 126 REPAIRS. (See Bailments.) S SALES. (See Carriers, Monopolies.) Lien of vendor for purchase price 165 1056 Right to cancel order with acceptance, where unfavorable reports are received as to solvency of buyer 165 Authority of commission salesmen to make contracts 201 Whether salesman has power to endorse principal's name upon checks 470 Whether acknowledgment of salesman 's order constitutes an acceptance 200 Liability of firm on orders taken by salesmen working on commission basis 221 Liability of vendee for cancelling order after acceptance. 300 Whether purchaser can accept part of order and reject balance 322 What constitutes a valid and enforceable guarantee of an account 272 What constitutes a warranty 322 Right to recover on implied contract where express con- tract exists 332 Measure of damages for breach by vendee of contract to purchase goods 385 Whether prepayment of freight by consignor throws risk upon him 216 As to who sustains loss on goods damaged in transit where consignor pays the freight 236 Liability of vendor for loss of coke en route when sold by oven weights 154 Whether manufacturer or dealer liable for damages when goods are incorrectly labelled Responsibility of consignor when goods shipped C. O. D. Liability of consignee where draft payable on arrival and inspection 435 Right of consignor to discount upon the amount of freight advanced 306 Right of stoppage in transitu 165 Right of stoppage in transitu where bill of lading taken in name of vendee as consignor and in name of purchaser from vendee as consignee and as to the effect of bank- ruptcy of vendee 909 In whom title rests during transit as between consignor and consignee 193 Title to goods where draft attached to bill of lading 235 Right of vendor to reserve title to goods sold 437 Allowance of freight to consignee as reserving title in consignor 214 Effect of clause in contract reserving title in vendor until goods are paid for 626 Effect of prepayment of freight by consignor upon title to goods 638 Whether title to goods in transit passes by payment of draft attached to bill of lading 478 1057 Title to goods in transit when sold "coast freight al- lowed" 638 Right of consignee to control shipments when title to wame is in consignor 1010 Meaning of F. O. B 490 Effect of sales F. O. F>. upon title to goods (538 Effect of a contract reserving title in vendor until pay- ment where goods are sold F. O. B. a certain point, there to be loaded in cars with other goods 626 When title passes from seller to purchaser where goods sold " F. O. B. common shipping point " 435 F. O. B. shipments and the effect of equalization of freight rates 351 As to who sustains loss on goods damaged in transit where goods are sold "F. O. B. point of shipment". . . . 236 Upon whom risk of transportation of goods falls when sold ' ' F. O. B. point of shipment " 853 As to who is responsible for goods in transit in case of F. O. B. shipments 963 On whom risk of loss or damage will fall where goods shipped by lake and sold F. O. B. dock 402 Liability of consignor for loss in transit where goods sold F. O. B. shipping point 824 Whether consignee can change place of delivery of ship- ment when such shipment is sent F. O. B. freight prepaid 1010 Effect of Bulk Sales law of Illinois and liability of an attaching creditor under the law 662 Presumption of fraud when sales made without com- pliance with the Bulk Sales law and whether sales are conclusively fraudulent or only prima facie 666 SALESMEN. (See Agency, Contracts, Carriers, Checks.) Power of traveling salesmen to bind employer on contract 78 Right to make contracts 165 Authority to make contracts 201 Liability of firm on orders taken by salesmen working on commission basis Whether acknowledgment of order constitutes acceptance SAMPLES. (See Carriers, sub. tit. Baggage.) SECOND-HAND DEALERS. Whether firm buying second-hand machinery must take out city license as a second-hand dealer 767 SERVICE OF PROCESS. Effect, of improper service of process in State of Texas 317 SET-OFF. Right of employer to set-off damages in action by employe 1 79 SEWING MACHINES. Payment of license fee for sale of sew- ing machines in foreign state, where title to same does hot pass until delivery 253 Validity of Virginia statute requiring license fee for privilege of selling sewing machines in that State 680 1058 Validity of license tax on sewing machines 41 SHKKMAN ACT. Whether combination of carriers in reference to equipment is a violation of 621 SHIPPERS. (See Carriers, Railroads, Interstate Commerce Act. Contracts, Sales.) SIDE TRACKS. (See Carriers.) Whether carriers obligated to deliver on 218 STATE. Liability for value of horses killed by order of live stock commissioners 134 STATUTE. Subject not embraced in title 42 STATUTE OF LIMITATIONS. Statute of limitations in case of death. 287 STEAM BOILERS. Right of city to compel manufacturer to change steam boilers to comply with rules of number of inspectors 417 Validity of rules as to size of blow-off pipes 515 STEAM ENGINEERS. Whether city can require licensed en- gineer in building supplied with steam from neighboring plant 282 What constitutes steam pressure 320 Meaning of ordinance requiring licensed engineer to be in constant attendance 282 STEAM GENERATING MACHINERY. What constitutes 210 STOCK. (Eight of corporation to hold, see Corporation.) STOPPAGE IN TRANSITU (See Carriers and Sales.) STORAGE. (See Carriers.) STREETS. Right of city council to grant to merchants right to build platforms for bulk-heads in public streets 878 STRIKES. (See Carriers; Labor; Labor Unions.) Validity of law compelling employer to state, in his ad- vertisement for labor, that he has a strike at his plant. . 222 SUS1DIARY CORPORATION. Formation of. (Sec Foreign Corporation.) SUNDAY. Validity of contracts entered into on 391 Validity of insurance policies dated on Sunday 404 SWITCHING. (See Carriers, sub. tit. Switching.) T TAXATION. (See Corporations, Constitutional Law.) Taxation of Capital Stock 13 Basis of assessment of capital stock of corporation whose stock is subject to assessment by local assessor 439 Whether company engaged in manufacture of electricity is liable to taxation on its capital stock 672 As to whether corporation doing transfer business is exempt from assessment on its capital stock in Illinois. . . .933 In reference to filing schedules for capital stock assess- ments in view of 1905 law of Illinois. . 838 1059 Whether assessment of capital stock made prior to July 1, 1905, can be enforced under law of Illinois 670 Property outside of Chicago and Illinois, where listed. . . 79 Whether Illinois corporation subject to taxation on bank deposit in New York 122 Whether check account subject to assessment 680 (roods held in warehouse after reaching destination when held for the purpose of being resold 654 Procedure with reference to personal property taxes 5 The Texas law of 1905 levying taxes on gross receipts of private car lines. . . , 864 The Michigan law of 1905 imposing a tax upon private car lines 888 TEAMS. Liability of hirer of team for injuries caused by trav- eler '. ! ' 290 TELEPHONE COMPANIES. Scope of the litigation in Chicago lot! Effect of recent Illinois Supreme Court decisions 811 The telephone litigation in Chicago and the effect where name of complainant has been changed 556 Rates outside city limits of Chicago 48 Right to recover back excess payments when made with- out protest 75 Kight of subscriber to attach his own equipment to lines of telephone company 834 Obligation to furnish particular service, which it for- merly maintained, but since abandoned 13'J Whether can be compelled to itemize bills for measured service 364 Reasonableness of rates, and remedy of subscriber when rates are exorbitant 405 TENANCY IN COMMON. Whether tenancies by entireties held by husband and wife subject to execution in Indiana. ... 126 TRADE MARKS. W r hat constitutes 413 Whether necessary to copyright 432 The registration of 432 The Act of 1905 and the necessity for registration under the same 554 Right to copyright company's name or to protect same as a trade mark 74 Right to protect name which implies the name of a cor- corporation 74 Right of Illinois corporation to prevent foreign corpora- tion from using a name similar to that of the Illinois corporat ion 736 Right of manufacturer to use facsimile of exposition awards for advertising purposes 541 What constitutes infringement of trade mark and who is liable 341 Liability of supply house pirating parts and using without right brands or marks belonging to the manufacturer. . . . CIS 1060 Right of person whose name is blown in bottles to prevent the further use or refilling of the same 159 TRANSFER COMPANY. As to whether corporation doing trans- fer business is exempt from assessment on its capital stock 93o TRANSFER HOUSE. (See Foreign Corporations.) TRAVELING SALESMEN. (See Salesmen, Agency, Contracts.') TRUCK LAW. Constitutionality of 379 TRUSTS AND COMBINATIONS. (See Anti-trust Affidavit.) Extra-territorial effect of statutes in relation to 1000 Whether Illinois corporation can make anti-trust affidavit when it has agreement in reference to prices, etc., with New York corporation having same stockholders, directors and officers as Illinois corporation 100U "u UNFAIR TRADE. (See Trade Marks.") UNITED STATES. Whether manufacturers are compelled to answer inquiries in relation to their business requested by census bureau . . 524 VACCINATIONS. (See Employment.) VENDOR AND PURCHASER, (See Sales.) VOLUNTARY PAYMENTS. (See Payments.) VOTE. (See Elections.) w WAGES. (See Employment, Labor, Assignments, of Wages.) Deductions from. (See Employment.) WAR E II OUS ES. (See Carriers. ) WATER CARRIERS. (See Carriers.) WEIGHTS AND MEASURES. Amount of fees that should be charged for inspecting yard measures 875 r."' '