City of Para, 44 Fed. 689; and cases cited by the circuit court.

Decree affirmed.

Mr. Justice BROWN, dissenting.

1. Conceding, for the purposes of this case, that under the stringent rule laid down by this court in Richelieu & O. Nav. Co. v. Boston Marine Ins. Co., 136 U. S. 408, 428, 10 Sup. Ct. 934, and The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823, the carrier is bound to respond for any loss of or direct damage to goods in consequence of a breach of his implied warranty of seaworthiness, whether such unseaworthiness were known or unknown, discoverable or undiscoverable, it does not necessarily follow that he is subject to the same measure of liability for damages occasioned by mere delay in making the voyage within the usual time.

All the cases cited in the opinion of the court are those wherein either the ship or the cargo has suffered loss or direct damage by reason of her unseaworthiness at the commencement of the voyage. Both in this court and in the court below the case is treated as one involving the liability of the carrier as an insurer of the goods in question. The authorities, however, make a clear distinction between the loss of or direct damage to goods on account of unseaworthiness and the consequences of mere delay. In the one case the contract is to deliver the goods at all events, the acts of God and the perils of the sea alone excepted. In the other, it is to use all reasonable exertions to carry the goods to the port of destination within the usual time.

The distinction is nowhere better or more concisely stated than in Parsons v. Hardy, 14 Wend. 215, which was an action to recover the price for the transportation of a quantity of merchandise from Albany to Ithaca. Plaintiff received the goods at Albany on board a canal boat, consigned to Ithaca. He was forced to stop at an intermediate point in consequence of ice in the canal, the defendant receiving the goods and transporting them to Ithaca. Defendant said that plaintiff was not entitled to recover because he had failed to deliver the goods as agreed. Plaintiff offered to prove that he was delayed in the canal in consequence of a collision with a scow, by which his boat was injured; and that he was obliged to stop and repair it. The court charged the jury that the accident to the boat, though caused by misfortune and without fault of the plaintiff, was no cause for his delay, which nothing could excuse but the act of God or the enemies of the country. This instruction was held to be erroneous, Mr. Justice Sutherland observing: "Plaintiff, as a common carrier, was responsible, at all events, for the final safety and delivery of the defendants' goods to them at Ithaca. Nothing could exonerate him from that responsibility but the act of God

or a public enemy. But, in respect to the time of delivery, he was responsible only for the exertion of due diligence. In this respect common carriers stand upon the same ground with other bailees. They may excuse delay in the delivery of goods by accident or misfortune, although not inevitable, or produced by the act of God. It is sufficient, if they exert due care and diligence to guard against delay, if the goods are finally delivered in safety. The principle upon which the extraordinary responsibility of common carriers is founded does not require that that responsibility should be extended to the time occupied in transportation."

The principle of this case was affirmed in Wibert v. Railroad Co., 12 N. Y. 245, which was an action to recover damages for the negligence of the defendant in not transporting to and delivering at New York a quantity of butter within a reasonable time. The defense was that there was an unusual quantity of merchandise delivered to defendant to be transported to New York; that its road was in good order, properly equipped, and that as many trains were run as could be with safety; but that the quantity of merchandise exceeded the capacity of the road to transport thes same immediately, and that it accumulated, in the depots. The delay was held to be ex-' cused. Said the court: "The law, upon well-known motives of policy, has determined that a carrier shall be responsible for the loss of property intrusted to him for transportation, though no actual negligence exist, unless it happen in consequence of the act of God or the public enemy; but when the goods are delivered at the place of destination, and the complaint is only of a late delivery, the question is simply one of reasonable diligence, and accident or misfortune will excuse him, unless he have expressly contracted to deliver the goods within a limited time."

In Thayer v. Burchard, 99 Mass. 508, it was also held that the fact that there was a great accumulation of freight for transportation over a railroad was sufficient to relieve the corporation from liability for the consequences of delay in transportation. "For losses, expenses, or other damage arising from mere delay, occasioned by a temporary excess of business, and without fault, the carrier is not responsible." To the same effect are Railroad Co. v. Rae, 18 Ill. 488; Helliwell v. Railway Co., 10 Biss. 170, 7 Fed. 68. In Geismer v. Railway Co., 102 N. Y. 563, 7 N. E. 828, and Railroad Co. v. Bennett, 89 Ind. 457, it was held that a railroad was not liable where a mob of strikers impeded or interrupted the carriage of the goods in question. In the following cases it was also held that the carrier was responsible only for the consequences of unreasonable delay: The Success, 7 Blatchf. 551, Fed. Cas. No. 13,586; Page v. Munro, Holmes, 232, Fed. Cas. No. 10,665; Ward v. Railroad Co., 47 N. Y. 29; Hand v. Baynes, 4 Whart. 204; Kinnick v. Railroad

Co., 69 Iowa, 665, 29 N. W. 772; Boner v. Steamboat Co., 1 Jones (N. C.) 211; Conger v. Railroad Co., 6 Duer, 375; Railroad Co. v. Hazen, 84 Ill. 36.

The English cases are even more explicit than our own, in treating the contract of the carrier as demanding only the exercise of due diligence with respect to the time of delivery. A leading case is that of Briddon v. Railway Co., 28 L. J. Exch. 51, 4 Hurl. & N. (Am. Ed.) 847, which was an action against a railway company for a failure to deliver certain beasts within a reasonable time, whereby the beasts were deteriorated in condition, and a market lost (precisely the damages which are claimed in this case). Transportation was delayed by a heavy snow storm, by which the market day at Nottingham was lost. It was claimed that under the circumstances the road was bound to obtain additional engines, and use extraordinary efforts to send on the cattle trucks. But the court held that the contract entered into was to carry the cattle without delay, and in a reasonable time, under ordinary circumstances; that, if a snow storm occurred, which made it impossible to carry the cattle, except by extraordinary effort, involving additional expense, the company was not bound to use such means and to incur such expense. In Hales v. Railway Co., 4 Best & S. 66, a jury found that the goods were not delivered within a reasonable time. Lord Chief Justice Cockburn said: "Where no time is mentioned for delivering goods carried, the obligation of the carrier is to deliver them within a reasonable time; and that is a question of fact. The person who sends goods is not entitled to call upon the carrier to go out of his accustomed course, or to use extraordinary means of conveyance; but the carrier must do that which is within his power, and which it is reasonable to expect that he should do, for delivering the goods."

The case of Taylor v. Railway Co., L. R. 1 C. P. 385, was an action for damages sustained in consequence of a delay in the delivery of three hampers of poultry sent by the railway for the early London market. The delay was occasioned by an accident which occurred on defendant's line to a train of another railway company, which had running powers over that portion of the line. The accident resulted solely from the negligence of the servants of the other corporation. It was held that the railway was not responsible; Erle, C. J., observing: "I think a common carrier's duty to deliver safely has nothing to do with the time of delivery. That is a matter of contract, and when, as in the present case, there is no express contract, there is an implied contract to deliver within a reasonable time; and that I take to mean a time within which the carrier can deliver, using all reasonable exertions." Said Montague Smith, J.: "Common carriers do indeed insure to this extent, that they will safely and securely carry the goods, but not to the extent of guarantying their arrival at v.15s.c.-35

any particular time." The maritime cases in England nearly all turn upon the question of reasonable time for the delivery of the goods after the ship arrives at her port of destination.

Counsel for the appellee has failed to cite an authority which lends countenance to the theory of the opinion in this case, that the liability of the carrier for the consequences of delay is coextensive with his liability for the loss of the goods carried. Not only do the general principles of law hold him liable simply for the exercise of diligence, but the bill of lading in this case expressly exonerates him for "loss or damage from delays." From reasons of public policy, and from the fact that the carrier and his servants are solely intrusted with the custody of goods carried, and the owner has no means of protecting himself against their embezzlement or negligence, the law has imposed upon the carrier the stringent liability of an insurer. As was said by Lord Holt in Coggs v. Bernard, 2 Ld. Raym. 909, 918: "This is a politic establishment provided by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity for undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point."

These reasons, however, have no application to his carrying within a reasonable time. As to such contract, the law imposes upon him no extraordinary liability.

As it is admitted in this case that the delay was occasioned by a defect in the ship, which could not have been discovered by the ordinary methods of inspection, it seems, to me clear that the carrier should not be held responsible. If it be said that the dam-* ages in this case were the direct consequences of the breach of warranty of seaworthiness, the reply is that for such damages the ship is not responsible, provided her owner has used due diligence to make her seaworthy, although, if the goods had been lost or destroyed, he would have been liable as insurer. In the cases above cited, if the merchandise had been lost in consequence of the collision in the canal, the extraordinary accumulation of freight, the violence of the mob, or the accident upon the railway, there could have been no doubt whatever that the carrier would have been liable; but, as the consequence of the accidents in each case was a mere delay in the delivery of the goods, the carrier was exonerated. I find it impossible to distinguish these cases in principle from the one under consideration.

2. There is also a further exception in the bill of lading in this case of "loss or damage from machinery, or defects

144

therein." This exception was obviously inserted for the purpose of exempting the ship from some liability to which, without such exception, she would be subject. It evidently was not intended to apply to mere breakages of machinery, which should occur after the voyage began, since the breaking of sound machinery through stress of weather is treated as an inevitable accident or peril of the sea, for which the ship would not be liable, whether there were an exception or not. The Virgo, 3 Asp. 285; The William Lindsay, L. R. 5 P. C. 338.

The exception, then, must be referable to latent defects in the machinery, existing at the time the voyage began. Of course, it does not apply to negligent defects, or to those which might have been discovered by the exercise of ordinary care; but, as to any Latent defects, I regard this exception as exonerating the carrier. There are but few cases, either in this country or in England, where the direct question has been presented; but, in all those to which our attention has been called, similar exceptions are treated as valid and binding. Thus, in The Miranda, L. R. 3 Adm. & Ecc. 561, a steam vessel became disabled at sea in consequence of her machinery breaking down. Her car go had been shipped under bills of lading which contained "accidents from machinery" among the excepted perils. Another steamship, belonging to the same owners, fell in with the disabled vessel, towed her into port, and took proceedings against the cargo to recover salvage. The defense was that the Miranda was unseaworthy. The court held, first, that there was no sufficient evidence to find that she was unseaworthy at the time the cargo was shipped, and even if there were, that the exception of “accidents from machinery" exonerated the vessel from the consequence of such breakage, and rendered the cargo liable for its proportion of salvage. The Laertes, 12 Prob. Div. 187, was a similar case, wherein the cargo was proceeded against for salvage. The bills of lading under which the cargo was shipped contained, among other excepted perils, the clauses: "Warranted seaworthy only so far as ordinary care can provide," and "owners not to be liable for loss, detention, or damage * if arising directly or indirectly

* from latent defects in boilers, machinery," etc. The Laertes broke down from a latent defect, which could not have been discovered by the exercise of reasonable care; and it was held that the exception of latent defects, if it did not abrogate, at all events limited, the warranty which the law would otherwise imply, that the ship was seaworthy at the beginning of the voyage. This case is directly in point. In The Curlew, 51 Fed. 246,-affirmed by the court of appeals (8 U. S. App. 405, 5 C. C. A. 386, 55

Fed. 1003),-the breaking of a junk ring on the engine cylinder was held to be an acci dent of the sea and of the machinery, within the meaning of a charter party exempting the party from liability for loss of cargo caused by such accident. And in The Carib Prince, 63 Fed. 266, a similar exemption of latent defects was held to cover damages from a defective rivet in the bulkhead side of a water tank, where, the ship being a new one, the tank had been tested by hammer and water pressure, and no defect had been disclosed.

The cases cited in the opinion of the court do not seem to me to support its conclusion. In Steel v. Steamship Co., 3 App. Cas. 72, the cargo was damaged by sea water getting, into a port hole which had been negligently fastened. There was no doubt that the loss was due to the negligence of the ship. In Gilroy v. Price [1893] App. Cas. 56, there was an exception of liability for neglect in the navigation of the ship in the ordinary course of the voyage; and it was held, very properly, that this did not apply to the warranty of seaworthiness, that the loss occurred from unsea worthiness at the time the vessel started on her voyage, and that the owners of the ship were liable. In The Glenfruin, 10 Prob. Div. 103, there was an exception of "all and every the dangers and accidents of the seas and of navigation of whatsoever nature or kind," and this was held not to exonerate the vessel from the consequence of the breaking of her crank shaft from a defect in the welding which made her unseaworthy. Tattersall v. Steamship Co., 12 Q. B. Div. 297, there was clear proof of negligence, in not cleansing and disinfecting the ship, in consequence of which plaintiff's cattle contracted a disease, for which the ship was, of course, held liable. In Kopitoff v. Wilson, 1 Q. B. Div. 377, there was a failure to stow certain iron plates in a proper manner, so that one of them broke loose, and went through the side of the ship. But there was in that case no exception in the bill of lading. The case of Insurance Co. v. Hamilton, 12 App. Cas. 484, is equally inapplicable.

In

If, under the circumstances of the present case, the vessel be not exonerated by the exception in the bill of lading of "loss or damage from machinery or defects therein," I am wholly unable to conceive what defects the exception was intended to cover. I am not aware that there is any magic in the words "implied warranty of seaworthiness," which enables them to override all the other general principles of law applicable to the responsibility of the carrier, as well as the express terms of his contract with the shipper. I am therefore constrained to dissent from the opinion of the court, and am authorized to state that Mr. Justice HARLAN and Mr. Justice BREWER concur in this opinion.

693

(156 U. S. 692)

CITIZENS' SAVINGS & LOAN ASS'N v. PERRY COUNTY, ILL.

(March 4, 1895.) No. 56.

COUNTY RAILWAY AID BONDS-VALIDITY-ESTOP-
PEL BY RECITALS.

1. On July 3, 1869, the county of Perry, Ill., voted a subscription to the stock of the B. & S. I. R. Co., to be paid in county bonds, upon condition that no bonds should be issued until the railroad company should locate its shops at Duquoin. The shops were never located at Duquoin, but the bonds were nevertheless issued, and contained recitals that they were issued under the act of the state legislature approved February 14, 1857. This was the act incorporating the railroad company, and authorizing it to receive subscriptions; and among its provisions was one requiring municipal or county subscriptions to be made under the provisions of the act of November 6, 1849, which, among other things, required submission of the question to the voters, and a majority of votes in its favor. The bonds were registered in the office of the state auditor, pursuant to the act of April 16, 1869; the county judge certifying to the auditor that all the preliminary conditions prescribed by that act to entitle bonds to registration had been complied with. The auditor then indorsed upon each bond a certificate that the same had been registered in his office pursuant to the provisions of the lastnamed act. After the vote, but before the issuance of the bonds by the county court, the provision in the state constitution of 1870 forbidding all municipal subscriptions to railroad corporations, except "where the same have been authorized, under existing laws," went into operation. Held, that the county officers violated their duty in issuing the bonds when the condition as to location of shops had not been complied with, and that, in the absence of a compliance therewith, the issuance of the bonds had not been authorized, so as to bring them within the exception to the constitutional prohibition; that the bonds were therefore invalid when issued; and that the recitals were not such as to preclude the county from showing noncompliance with the condition, even as against innocent holders.

2. The said county of Perry also voted to subscribe for stock of the C. & T. C. & R. Co.; the election being ordered and held with reference to the act of April 16, 1869. This act provided that its benefits should not apply to any subscription not authorized by a majority of legal voters living in the county," etc., while the act of 1849 required a majority of the qualified voters, taking as the standard the number of votes cast at the last previous election for county officers. The order for the election provided that no subscription should be made "unless 984 legal voters of said county" shall have voted for the same. The county records showed that 2 more than this number voted for it, and only 91 against it. The order of the county court for the issuance of the bonds recited that all the conditions prescribed by the order for the election had been complied

with. Held, that as the number of legal voters "residing in the county" at the time of the election was a matter dehors the record, and could only be determined by the county court on investigation, its finding that a majority of such voters had voted for the subscription must be accepted, and the county was estopped, as against an innocent holder, from attempting to show the contrary.

In Error to the Circuit Court of the United States for the Southern District of Illinois.

This was an action at law by the Citizens' Savings & Loan Association against the County of Perry, Ill., to recover on certain county bonds. The circuit court entered a

judgment for the defendant, and the plaintiff brought error.

George A. Sanders and William B. Sanders, for plaintiff in error. Thomas J. Layman, for defendant in error.

*Mr. Justice HARLAN delivered the opin ion of the court.

This action was brought to recover the amount of certain coupons taken from bonds issued in the name of Perry county, Ill., and made payable, some of them to the Belleville & Southern Illinois Railroad Company or bearer; others, to the Chester & Tamaroa Coal & Railroad Company or bearer.

The bonds, in each instance, were issued in payment of a subscription in the name of that county to the capital stock of the corporations to which they were respectively made payable.

The parties, by written stipulation, waived a jury, and the case was tried by the court. It was found by the court that an electior was held in the county of Perry on the 3d day of July, 1869, upon the question of subscription to the capital stock of the Belleville & Southern Illinois Railroad Company, to be paid by the bonds of that county; that the notices for the election contained a clause providing, among other things, that "no bonds should be issued or stock subscribed until the railroad company should locate their machine shops at Duquoin"; and that the shops, costing about $150,000, were located at East St. Louis, and not at Duquoin.

In respect of the bonds issued to the Chester & Tamaroa Coal & Railroad Company, it was found that the proposition for a subscription by the county to the capital stock of that corporation, upon which the people voted February 19, 1870, "did not receive a majority of the qualified voters of the county, 986 votes only being cast in favor of it, while at the last preceding general election, held in November, 1869, there were 2,024 votes thrown"; in other words, that the proposition failed, by 27 votes, to receive a majority of the qualified voters of the county.

The conclusion of law as to each class of bonds was that, by reason of the facts so found, they were void, for want of power

to issue them.

First. The bonds issued to the Belleville & Southern Illinois Railroad Company.

The Belleville & Southern Illinois Railroad Company was incorporated by an act of the general assembly of Illinois, approved February 14, 1857, with authority to locate, construct, and operate a railroad from the city of Belleville, in St. Clair county, southwardly, by way of the village of Pinckneyville, to some eligible point on the Illinois Centra) Railroad in Perry county. By the ninth section of its charter the directors of the company were "authorized and empowered

to take and receive subscriptions to their said capital stock on such terms and in such amounts as they may deem for the interest of said company, and as they may prescribe by their by-laws and regulations, from any other railroad company or corporation, and from any county, city, town, or village; and any such subscriptions shall be valid and binding upon any railroad company, corporation, county, city, town, or village making the same: provided, said subscriptions shall be made in every respect subject to the provisions and restrictions of an act supplemental to an act entitled 'An act to provide for a general system of railroad incorporations,' approved November 6, 1849." It was provided that the road should be completed within eight years from the passage of the act.

The act of 1849, here referred to, gave citles and counties authority to purchase or subscribe for shares of the capital stock of any railroad company then organized or incorporated, or which might be thereafter organized or incorporated, in any sum not exceeding $100,000 for each city or county; the stock so subscribed for or purchased to be under the control of the county court of the county or the common council of the city making the subscription or purchase, in all respects as stock owned by individuals. Section 1. Authority was given to pay for such stock by borrowing money or issuing bonds. Section 2. Railroad companies then or thereafter organized or incorporated under the laws of the state were authorized to receive at par the bonds of any county or city becoming subscribers to their capital stock. 1 Gross' Ill. St. 1873, p. 552.

By that act it was further provided: "Sec. 4. No subscription shall be made, or purchase or bond issued by any county or city under the provisions of this act, whereby any debt shall be created by said judges of the county court of any county, or by the common council of any city, to pay any such subscription, unless a majority of the qualified voters of such county or city (taking as a standard the number of votes thrown at the last general election previous to the vote had upon the question of subscription under this act for county officers) shall vote for the same; and if a majority of the voters of said county or city, assuming the standard aforesaid, shall be in favor of the same, such authorized subscription or purchase, or any part thereof, shall be then made by said judges or common council. In case any election had under this act is held upon a day of a general election, then the aumber of votes thrown at such general election for county officers shall be the standard of the number of qualified voters as aforesaid. • 1 Gross' Ill. St. 1873,

p. 552.

These bonds were dated January 1, 1871, and made payable, 20 years after date, to the railroad company or bearer, with inter

est at 7 per cent. per annum. Each bond, signed by the county judge and the county clerk, and attested by the county seal, contained the following recitals: "This bond is one of a series of one hundred of like tenor and date, issued under the authority and in accordance with the requirements of ar act of the legislature of the state of Illinois entitled 'An act to incorporate the Belleville and Southern Illinois Railroad,' approved February 14, 1857, and is redeemable, at the pleasure of said county, at any time after the first day of January A. D. 1876." Each coupon, signed by the same officers, was in this form: "The county of Perry, state of Illinois, will pay to the bearer seventy dollars on the first Monday of January, 1889; being the interest on bond No. issued to the Belleville and South

ern Illinois Railroad Company."

On the day the bonds were directed by the county court to be issued, namely, December 5, 1870, the following communication and certificate under the county seal, and verified by the oath of the county judge, was sent to the auditor of public accounts of Illinois:

"Sir: I herewith transmit to you, for registration in your office under the provisions of the act entitled 'An act to fund and provide for paying the railroad debts of counties, townships, cities, and towns, in force April 16th, 1869,' the following bonds, being one hundred in number, dated January 1st. 1871, amounting to ($100,000) one hundred thousand dollars, payable on the first day of January, 1891, and bearing interest at the rate of seven per centum per annum, payable annually. These bonds are issued by the county court of the county of Perry and state of Illinois to the Belleville and Southern Illinois Railroad Company, under and by authority of the provisions of an act entitled 'An act to incorporate the Belleville and Southern Illinois Railroad,' approved February 14, 1857; and I, as judge of the county court of said county, do hereby certify that all the preliminary conditions in the act in force April 16, 1869, required to be done to authorize the registration of these bonds and entitle them to the benefits of the said act last referred to, have been fully complied with, to the best of my knowledge and belief."

Upon each bond was indorsed a certificate by the auditor of public accounts of the state of Illinois, under his seal of office, "that the within bond has been registered in this office this day, pursuant to the provisions of an act entitled 'An act to fund and provide for paying the railroad debts of counties, townships, cities, and towns,' in force April 16th, 1869."

Although these bonds did not upon their face expressly refer to the railroad act of 1849, the recital in them that they were issued under the authority of and in accordance with the act of 1857, incorporating the