Where the consignees of shipments of intoxicating liquor which arrived at defendant's station at C. on August 21st and 22d did not live at C., the reasonable time allowed the not elapsed when a federal officer seized the consignees before liability as carrier ceased had liquor on August 22d and 23d. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. 92.1 3. CARRIERS 92-DELIVERY OF GOODS-EXCUSE-PROCESS OF LAW. only from statutory authority. State v. Par- [2. CARRIERS 92-CARRIAGE OF GOODS-LIker Distilling Co., 236 Mo. 219, loc. cit. 253, ABILITY AS WAREHOUSEMAN-TIME FOR REMOVAL. 139 S. W. 453; Rosenberger v. Pacific Express Co., 258 Mo. 97, loc. cit. 109, 167 S. W. 429. Hence, when plaintiff contracted in Texas with defendant to have it deliver intoxicating liquor in Texas and collect the purchase price, it made such contract subject to the right of the state to pass laws forbidding the performance thereof. And if, at any time before the fulfillment of such contract, and while it yet remained executory as to any feature of it, the state forbids the doing of the unperformed act, the contract therefor is annulled. And the parties, in making their contract, seemed to have had in mind the possibility of such a contingency; for they stipulated therein that the express company was "not to be held liable for any loss or damage, except as forwarders only, nor for any loss of damage by the restraints of government," etc. In view of all of which, it is difficult to see how plaintiffs can lay claim to any vested rights by reason of the contract it succeeded, though without right, in forcing upon defendant. * * In the case of Rosenberger v. Pacific Express Co., supra, the defendant voluntarily entered into the contract, and yet the Supreme Court held the contract was annulled. We cannot see how plaintiffs can occupy any better position by reason of having forced a contract upon defendant against its will. The locus of the contract herein, as well as the place of its performance, were all in the state of Texas. The cause of action arose there. The suit, if brought there, would have failed under the ruling in Craddock v. Wells Fargo Express Co. (Tex. Civ. App.) 125 S. W. 59, and our own Supreme Court has followed this case, and, if possible, has extended its Scope and effect. The judgment is affirmed. All concur. The strict rule of the common law whereby to deliver goods received for carriage, except by a carrier could not escape liability for failure showing that such failure was caused by the act of God or the public enemy, has been modified the goods have been taken from his possession so as to excuse the carrier from liability where by process of law, without any fraud, collusion, or consent on its part, by an officer of the law acting under authority apparently valid on its face, and when it notifies the consignor of such seizure. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. 92.1 4. CARRIERS 92 FAILURE TO DELIVER GOODS-TAKING UNDER PROCESS OF LAW- The notice which a carrier is required to give to the consignor of goods which have been to enable the consignor to protect his interest, taken from its possession by process of law is and was satisfied by a notice given shortly after the property was taken, when, under the given the consignor an opportunity to protect circumstances, no notice could possibly have himself. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. 92.1 5. CARRIERS 92 CARRIAGE OF GOODS TAKING UNDER PROCESS OF LAW-LIABILITY FOR DESTRUCTION. Where an officer of the United States Indian Service engaged in the suppression of the liquor DANCIGER et al. v. ATCHISON, T. & S. F. Cent. Dig. §§ 343, 364-366; Dec. Dig. 92.1 RY. CO. (No. 11677.) (Kansas City Court of Appeals. Missouri. 1. CARRIERS 140-CARRIER AS WAREHOUSE- When a shipment arrives on time, and the transit is ended, and the carrier puts the goods in its warehouse to await delivery to the consignee, its liability as carrier ceases, although no notice is given to the consignee, and it is thereafter liable only as a warehouseman; but the liability of a carrier does not cease immediately upon the prompt arrival of goods at its destination, but only after the lapse of a reasonable time for their removal by the consignee, and the time when the liability as carrier ceases may depend upon special contracts or local cus tom. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 609, 6092, 611-616; Dec. Dig. mm 140.] Under Act Cong. March 1, 1907, c. 2285, giving the special agent of the Indian Bureau 34 Stat. 1017 (U. S. Comp. St. 1913, § 4142), dians and in the Indian country, and his depufor the suppression of liquor traffic among Inties, the powers conferred on Indian agents and the commanding officers of military posts by Rev. St. U. S. § 2140 (U. S. Comp. St. 1913, § 4141), providing that, if an Indian agent has reason to suspect or is informed that any white person, etc., is about to introduce any spirituof law, he may search such person's place of ous liquor into the Indian country in violation deposit, and shall seize any liquor found and deliver it to the proper officer, to be proceeded against by libel and forfeited, an Indian officer who suspected that intoxicating liquor in the wareroom of a carrier's station in Kansas, about half a mile from the "Indian country" in Oklahoma, was consigned to parties in the Indian [Ed. Note. For other cases, see Indians, Cent. Dig. §§ 61, 62; Dec. Dig. 35.] 7. CARRIERS 92-TRANSPORTATION OF LIQUOR-SEIZURE - DUTY OF CARRIER CONSTRUCTION OF LAW. Where an officer of the United States Indian Service, under the statute and his commission, had apparent authority to take from a carrier's possession liquors which he suspected were to be introduced into the Indian territory, the carrier, as against the consignor suing for their loss, was not bound to construe the statute, nor foresee a subsequent ruling that the officer had no real authority to act outside his territory. country, had a right to seize it and take it from Brown." In the other four contracts the the carrier's possession. goods were consigned directly to the respective persons named therein, with no provision requiring the carrier to notify any one. All of the contracts provided that the carrier should hold the goods a certain number of days after arrival at destination, and, if not accepted in that time, they were to be returned to shipper. In the first three contracts this period was 10 days, and in the last three it was 15 days. In the first two, those in which the goods were sent to shipper's order, the surrender of the original bill of lading, properly indorsed, was required before delivery. The conditions on the back of all of them provided that the carrier should be liable for any loss of the goods, except that "caused by the act of God, the public enemy, quarantine, the authority of law," etc. The shipments in counts 1, 4, 5, and 6 were made August 20, 1912, and arrived at Caney, Kan., August 21, 1912. The one in count 2 was made August 21st and arrived August 22d, while the one in the third count was made August 8th, and arrived August 9th. So that all the shipments were transported without delay, and reached Caney the next day after they were shipped. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. 92.] 8. CARRIERS 92- CARRIAGE OF GOODS SEIZURE UNDER PROCESS OF LAW-RESISTANCE. In such case the carrier's agent was not required to resist the officer's taking and attempt to decide the question of law himself, since the officer's apparent authority to take the liquor was the highest form of vis major; and, at any rate, his failure to resist could not be taken a consent to the taking. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. 92.] 9. COURTS 231 - MISSOURI APPELLATE COURT-CERTIFICATE TO SUPREME COURT. Where a former decision of the Springfield Court of Appeals held that an Indian officer had no authority to act outside of the Indian country, the Kansas City Court of Appeals, holding that such officer might act outside the Indian country in taking liquor about to be introduced therein, was required to certify the case to the Supreme Court for final adjudication. [Ed. Note.-For other cases, see Courts, Cent. Dig. $$ 487, 491, 644, 646-648, 650, 652-659, 661; Dec. Dig. 231; Appeal and Error, Cent. Dig. § 1773.] Caney, Kan., is located within a half or three-quarters of a mile of the "Indian country" in Oklahoma. The United States laws for the suppression of the liquor traffic among Indians and in the Indian country were very stringent, and the government was actively engaged in the enforcement thereof. On the evening of August 22, 1912, a deputy special officer of the United States Indian Appeal from Circuit Court, Jackson Coun- Service, engaged in the suppression of the ty; Wm. O. Thomas, Judge. "Not to be officially published." Action by Joseph Danciger and others against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed, and cause certified to the Supreme Court. See, also, 179 S. W. 797. Thomas R. Morrow, George J. Mersereau, and John H. Lathrop, all of Kansas City, for appellant. I. J. Ringolsky and Harry L. Jacobs, both of Kansas City, for respondents. TRIMBLE, J. Plaintiffs, a partnership, under the name of Danciger Bros., carry on a mail order liquor business in Kansas City, Mo. They sue for the loss of six shipments of intoxicating liquor over defendant's railroad from Kansas City, Mo., to Caney, Kan. The suit began in a justice court, and is in six counts, one for each shipment, all being made under separate shipping contracts. Those in counts 1 and 2 provided that the goods were shipped to the order of Danciger Bros., with a provision in the first that the carrier should "notify Raymond Edwards," and in the second that it should "notify Tom liquor traffic, discovered the liquor covered by the shipments in question, together with a large number of other liquor shipments, in the wareroom of defendant's station at Caney. He informed the station agent that he was a United States officer, told him the business he was engaged in, and asked the agent if he knew the consignees of the liquor, where it was destined, and whether or not it was going into prohibition country in Ok lahoma. The agent, not knowing any of the consignees or persons to be notified nor where they lived, told the officer he did not know where the liquor was going. Thereupon the officer demanded that he hold the liquor until investigation could be made as to its intended introduction. The agent asked for his credentials, and the officer showed him his appointment and commission, and served written notice on him directing the agent to hold all liquors in his possession until further notice from the officer. Thereupon the agent wired his superintendent that he had been served with notice from the deputy special officer of the United States (giving his name and the number, date, and signature on his commission) to hold all intoxicating liquor until further notice, and asked For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for advice quick. At 8:55 the next morning the agent received a telegram from the superintendent which asked if the order applied to all liquor on hand, regardless of territory into which the same was going, and closed by saying: "Handle as per officer's orders until advised." Shortly thereafter, on the same morning, to wit, the 23d of August, the United States officer appeared at the station in company with the sheriff of Montgomery county, in which Caney is located, and the two officials went into the wareroom and looked over the various liquor shipments that were there, package by package. They took the numbers, and went over the names of the consignees or persons to whom notification was required, with particular reference to whether the parties to whom the liquor was sent lived in the Indian country of Oklahoma or in Kansas; and all packages of liquor the officers found destined for the Indian country were checked and separated from the liquor intended for parties living in Kansas. Then the United States officer got two wagons and hauled away the liquor destined for the Indian country. The liquor going to those residing in Kansas was not molested. After the officer had taken the liquor out of the depot and away from defendant's premises, he destroyed it. The suit is bottomed upon the commonlaw liability of the carrier as an insurer. Each count in the petition alleges that defendant is a common carrier for hire, and that the goods therein mentioned were delivered to it for transportation, and that it neither delivered the goods to the consignee nor returned them to the shippers. The contracts all provide, as hereinbefore stated, for a holding of the liquor a certain number of days, and from this defendant argues that its liability, if any exists at all, is that of a warehouseman, and not that of a carrier. The question would then arise: Did the relation of carrier cease and that of warehouseman begin? If so, when? In the last four counts there is no provision in the contracts requiring the carrier to notify the consignee; while in the first two there is such a provision. There was no delay in the carriage of the goods. They all arrived promptly. [1] Missouri seems to have adopted the Massachusetts rule (slightly modified) as to the time when a carrier's liability changes to that of a warehouseman; namely, that when the shipment arrives on time, and the transit is ended, and the carrier has put the goods in its warehouse to await delivery to the consignee, its liability as carrier ceases, although no notice is given to the consignee, and the carrier is thereafter liable as warehouseman only. Gashweiler v. Wabash, etc., R. Co., 83 Mo. 112, 53 Am. Rep. 558; Stanard Milling Co. v. White Line, etc., Transit Co., 122 Mo. 258, 26 S. W. 704; Rankin v. Pacific Railroad, 55 Mo. 167; Cramer v. American Merchants', etc., Express Co., 56 Mo. 524; Holtzclaw v. Duff, 27 Mo. 395. Our authorities also hold that the time when the liability as carrier will cease may depend upon special contract or a local custom. Gashweiler v. Wabash, etc., R. Co., supra, 83 Mo. loc. cit. 120, 53 Am. Rep. 558; Frank v. Grand Tower, etc., R. Co., 57 Mo. App. 181. Consequently, as to the first two counts, the provision for notification might require notice to be given before the liability as carrier would cease. Again, so far as they, as well as the last four counts, are concerned, our courts hold that the liability of carrier does not cease immediately upon the prompt arrival of goods at their destination, but only after the lapse of a reasonable time for its removal by the consignee. Scott County Milling Co. v. St. Louis, Iron Mountain, etc., R. Co., 127 Mo. App. 80, loc. cit. 92, 104 S. W. 924; Pindell v. St. Louis, etc., R. Co., 34 Mo. App. 675; Bell v. St. Louis & Iron Mountain R. Co., 6 Mo. App. 363. [2] The evidence seems to show that the consignees did not live in Caney, and hence, except as to the shipment in the third count, the reasonable time allowed the consignees before liability as carrier would cease had not elapsed at the time the officer seized the goods. As to the third count, the defendant had held it more than the ten days required, but, if the agreement to return the goods to shipper at the expiration of the ten days had the effect to reinstate the status of carrier, then defendant cannot claim it was a warehouseman as to it. We do not say that it did reinstate such status, but merely that, if it did so, then even the third count cannot be dealt with on the theory that defendant was merely a warehouseman. shall, therefore, treat the entire case upon the theory that defendant's relation to all of the shipments was that of carrier, and not warehouseman. We [3] By the strict rule of the common law a carrier could escape liability for failure to deliver goods received by him for carriage only by showing that such failure was caused by act of God or the public enemy. But "this stringent rule has been modified so as to excuse the carrier from liability where the goods have been taken from his possession by process of law, provided the carrier gives prompt notice of such seizure to his bailor." Kohn v. Richmond, etc., R. Co., 37 S. C. 1, 16 S. E. 376, 24 L. R. A. 100, 34 Am. St. Rep. 726. In Stiles v. Davis, 1 Black, 101, loc. cit. 106, 17 L. Ed. 33, the Supreme Court of the United States say: "It is true that these goods had been delivered to the defendant, as carriers, by the plaintiffs, to be conveyed for them to the place of destination, and were seized under an attachment against third persons; but this circumstance did not impair the legal effect of the seizure or custody of the goods under it, so as to justify the defendant in taking them out of the hands them was a question of law, to be determined of the sheriff. The right of the sheriff to hold by the proper legal proceedings, and not at the will of the defendant, nor that of the plaintiffs." In Pingree v. Detroit, etc., R. Co., 66 Mich., excuse a carrier for failure to deliver goods 143, loc. cit. 145, 33 N. W. 298, 299 (11 Am. intrusted to it for carriage, is not without St. Rep. 479), it is said that, if a carrier "is exception. And that rule has been modified, excusable for yielding to a public enemy, he at least to this extent, that when goods in a cannot be at fault for yielding to actual au- carrier's possession have been seized, the thority what he may yield to usurped au- carrier will not be liable where: First, there thority." In Railroad Co. v. O'Donnell, 49 has been no fraud, collusion, consent, or conOhio St. 489, loc. cit. 500, 32 N. E. 476, 479, nivance on the part of the carrier; second, it is said: where the seizure was made by an officer of the law acting under authority apparently valid on its face; third, that the carrier gave notice to the consignor-this last being for the purpose of enabling him to protect his own interest. 'Do the facts in the case at bar bring the case within the above exception? "The rule seems to be now established that a common carrier is not liable, if the goods be taken from his possession by legal process against the owner, or if, without his fault, they become obnoxious to the requirements of the police power of the state, and are injured or destroyed by its authority; as where they are infected with contagious disease, or are intoxicating liquors intended for use or sale in violation of the laws of the state, which require their seizure and destruction." In McAlister v. Chicago, etc., R. Co., 74 Mo. 363, it was held that the carrier was not bound to know whether a statute under which cattle carried by it were seized was constitutional or not, and if the process was not void on its face, the carrier was not liable. In Ohio, etc., R. Co. v. Yohe, 51 Ind. 181, loc. cit. 184 (19 Am. Rep. 727), it is said: "The carrier is deprived of the possession of the property by a superior power, the power of the state-the vis major of the civil law-and in all things as potent and overpowering, as far as the carrier is concerned, as if it were the 'act of God or the public enemy.' In fact, it amounts to the same thing; the carrier is equally powerless in the grasp of either." See, also, Southern Express Co. v. Sottile Bros., 134 Ga. 40, 67 S. E. 414; Robinson v. Memphis, etc., R. Co. (C. C.) 16 Fed. 57. * In Southern R. Co. v. Heymann, 118 Ga. 616, loc. cit. 622, 45 S. E. 491, 493, it is said: "Like every other person, the carrier is bound, both by duty and necessity, to respect and yield to the paramount public authority in power at the place where his undertaking is to be performed. * If the goods, without his fault, are or become obnoxious to the requirements of the police power of the state, and are injured or destroyed by its authority, as in the case of *** intoxicating liquors intended for use or sale in violation of law, the carrier cannot be held liable.' Hutch. Car. (2d Ed.) §§ 210b, 210c. The reason for such a rule is at once apparent; for to hold that a railroad company is bound to resist the lawful authority in protecting the goods of a shipper would be to lay down a doctrine dangerously approaching anarchy. In the present case it was in evidence that the whisky was seized by duly appointed officers of law of the state of South Carolina, and that they were acting within the authority of a statute of that state. We are not prepared to hold that the railroad company was bound to test the validity of the statute under which the goods were seized, by resisting the seizure; for to do so would be to entirely change the contract of carriage and impose upon the carrier a burden greater than it undertook, or in reason and common sense ought to bear." While this case was reversed by the Supreme Court of the United States in 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 Ann. Cas. 1130, yet it was upon other grounds. So that the old common-law rule that nothing There was no fraud, consent, collusion, or connivance on the part of the agent of the carrier or of the carrier itself. Plaintiff endeavored to get both the agent and the officer to say that the former turned the property over to the latter, but both deny it, and the officer testified that the goods were not released, but that "they were really taken from him," referring to the agent. [4] As to the notice which the agent was required to give the consignors, the purpose of such requirement is to enable the latter to protect their interests. The notice was given shortly after the property was taken, but, under the circumstances shown in evidence, no notice could possibly have given plaintiffs an opportunity to protect themselves. The liquors were destroyed within a few moments after they were seized and taken away, and, had the agent telegraphed plaintiffs the moment they were seized, it would have availed them nothing, because by the time or before a telegram could have been delivered, the property was no longer in existence. So that, even if the agent had telegraphed the consignors the instant the officer notified him to hold the shipments, it would not have enabled plaintiffs to protect themselves. [5] Hence the question comes down to the authority of the officer to take the goods from the depot. We think the distinction between the officer's right to take the goods between the officer's right to take the goods and his right to destroy them upon his own responsibility without waiting for a judg ment of condemnation should be carefully preserved. His act of destroying the goods was his own act, with which the agent had nothing to do. It was accomplished after he had taken the goods from the agent's possession. So that, if he had authority to seize the goods, the defendant should not be held liable, even though the officer had no authority to thereafter destroy them. [6] Chapter 2285, Act March 1, 1907, 34 Stats. at Large, 1017 (U. S. Comp. St. 1913, § 4142), gave the "special agent of the Indian Bureau for the suppression of the liquor traffic among Indians and in the Indian country and duly authorized deputies powers conferred by section 2140 of the Re-held that the place was not Indian country; vised Statutes of the United States (U. S. consequently the plaintiffs had not introducComp. St. 1913, § 4141) upon "Indian agents and subagents and commanding officers of military posts." Section 2140 provides that: "If any superintendent of Indian affairs, Indian agent, or subagent, or commanding officer of a military post, has reason to suspect or is informed that any white person or Indian is about to introduce or has introduced any spirituous liquor or wine into the Indian country in violation of law, such superintendent, agent, subagent, or commanding officer, may cause the boats, stores, packages, wagons, sleds and places of deposit of such person to be searched; and if any such liquor is found therein, the same, together with the boats, teams, wagons, and sleds used in conveying the same, and also the goods, packages, and peltries of such person, shall be seized and delivered to the proper officer, and shall be proceeded against by libel in the proper court, and forfeited, one half to the informer and the other half to the use of the United States; and if such person be a trader, his license shall be revoked and his bond put in suit. It shall moreover be the duty of any person in the service of the United States, or of any Indian, to take and destroy any ardent spirits or wine found in the Indian country, except such as may be introduced therein by the War Department." Now, the officer who seized the liquor had a proper and legal commission as a deputy special agent, and was, in fact, such officer. And, under the two statutes above mentioned, if he had "reason to suspect" that any person is "about to introduce" any liquor into the Indian country in violation of law, he could cause the store or place of deposit to be searched, and if liquor was found therein, the same could be seized, etc. This he could do summarily and without warrant or process. He was not required to obtain a writ to authorize him to do so. In Wells v. Maine Steamship Co., 29 Fed. Cas. 669, No. 17,401, the seizure was without process by an officer that should have had it, but the carrier was held not liable. But plaintiffs say the station was outside of the Indian country, and therefore the officer had no authority to seize the liquor, except in such territory, and that, as he had no authority to act outside of his territory, he was a mere trespasser like any other, and the defendant is liable the same as if it had permitted an ordinary trespasser to take it, and a number of cases are cited in support of the contention that he had no such authority outside of Indian country. In our opinion, they do not decide the precise question here presented. In Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471, the plaintiffs had liquor for sale in their store, and the defendants, a captain and lieutenant in the United States army, seized it. They were sued by the merchants, and defended, not upon the ground that the liquor was about to be introduced into Indian country, but on the ground that the place where they found and seized it was Indian country; i. e., that it had already been introduced, and that ed any liquor. They were not charged with attempting or being about to introduce liguor into forbidden territory. And, since the store where the liquor was kept for sale was not in Indian country, there could have been no foundation for any claim that they were The court, at page about to introduce it. 209 of 95 U. S. (24 L. Ed. 471), says: "The plaintiffs below violated no law in having the whisky for sale at the place where it was seized." The case of Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201, was upon an indictment for introducing liquor into Indian country. uor into Indian country. Of course, if the place where the liquor was seized was not forbidden territory, then the defendant could not be convicted, since he had not introduced it. The court in that case preserves the distinction we are here dealing with, since it says on page 555 of 225 U. S., on page 787 of 32 Sup. Ct. (56 L. Ed. 1201): error 'did then and there wrongfully and unlaw"The indictment charged that the plaintiff in fully introduce' a quantity of intoxicating liquor into, etc. *The offense alleged was the introduction of the liquor into the reservation, and not 'attempting to introduce."" Again, at page 560 of 225 U. S., on page 790 of 32 Sup. Ct. (56 L. Ed. 1201), the court say: "To repeat, the plaintiff in error was not charged with 'attempting to introduce' the liquor into Indian country, but with the actual insion on the train on this right of way did not troduction. If having the liquor in his possesconstitute such introduction, it is immaterial, so far as the charge is concerned, whether or not he intended to take it elsewhere." In Evans v. Victor, 204 Fed. 361, 122 C. C. A. 531, defendants, who were government officers, searched plaintiff's drug store in Muskogee, and plaintiff brought injunction to prevent further searches. The defense was that Muskogee was in Indian country, and that defendants had reasonable grounds to believe that plaintiff kept liquors in his store, and that they had a right to search for them. Here again there was no claim that the storekeeper was about to introduce liquor into Indian country, but that his keeping it in his store constituted an introduction already effected. The court held that, as Muskogee was not in Indian country, of course, the keeping of liquors for sale in a store in that city was not the introduction of them into such forbidden territory. The opinion is dealing only with the facts before it, and as the opinion itself says, on page 367 of 204 Fed., on page 537 of 122 C. C. A., quoting from Chief Justice Marshall; "An opinion in a particular case, founded on its special circumstances, is not applicable to cases * essentially different." * * The court, in the remarks made in the Victor Case, had in mind only the facts be |