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City of Para, 44 Fed. CS9; and cases cited or a public enemy. But, in respect to the by the circuit court.

time of delivery, he was responsible only Decree affirmed.

for the exertion of due diligence. In this

respect common carriers stand upon the Mr. Justice BROWN, dissenting.

same ground with other bailees. They may 1. Conceding, for the purposes of this case, excuse delay in the delivery of goods by that under the stringent rule laid down by accident or misfortune, although not inevitthis court in Richelieu & O. Nav. Co. v. Bos- able, or produced by the act of God. It is ton Marine Ins. Co., 136 U. S. 408, 428, 10 sufficient, if they exert due care and diliSup. Ct. 934, and The Edwin I. Morrison, 153 gence to guard against delay, if the goods U.S. 199, 14 Sup. Ct. 823, the carrier is bound are finally delivered in safety. The princi. to respond for any loss of or direct damage to ple upon which the extraordinary responsigoods in consequence of a breach of bis im bility of common carriers is founded does plied warranty of seaworthiness, whether not require that that responsibility should such unseaworthiness were known or un be extended to the time occupied in transknown, discoverable or undiscoverable, it portation." does not necessarily follow that he is sub The principle of this case was affirmed in ject to the same measure of liability for Wibert v. Railroad Co., 12 N. Y. 245, which damages occasioned by mere delay in mak was an action to recover damages for the ing the voyage within the usual time.

negligence of the defendant in not transportAll the cases cited in the opinion of the ing to and delivering at New York a quantity court are those wherein either the ship or of butter within a reasonable time. The de the cargo has suffered loss or direct dam fense was that there was an unusual quantity age by reason of her unseaworthiness at the of merchandise delivered to defendant to be commencement of the voyage. Both in this transported to New York; that its road was court and in the court below the case is in good order, properly equipped, and that as treated as one involving the liability of the many trains were run as could be with safety; carrier as an insurer of the goods in ques but that the quantity of merchandise exceedtion. The authorities, however, make a clear ed the capacity of the road to transport thea distinction between the loss of or direct same immediately, and that it accumulated damage to goods on account of unseaworth in the depots. The delay was held to be exiness and the consequences of mere delay.cused. Said the court: “The law, upon In the one case the contract is to deliver the well-known motives of policy, has determined goods at all events, the acts of God and the that a carrier shall be responsible for the loss perils of the sea alone excepted. In the of property intrusted to him for transportaother, it is to use all reasonable exertions tion, though no actual negligence exist, unless to carry the goods to the port of destination it happen in consequence of the act of God within the usual time.

or the public enemy; but when the goods are The distinction is nowhere better or more delivered at the place of destination, and the concisely stated than in Parsons v. Hardy, complaint is only of a late delivery, the ques14 Wend. 215, which was an action to re tion is simply one of reasonable diligence, and cover the price for the transportation of a accident or misfortune will excuse him, unless quantity of merchandise from Albany to he have expressly contracted to deliver the Ithaca. Plaintiff received the goods at Al- goods within a limited time.” bany on board a canal boat, consigned to In Thayer v. Burchard, 99 Mass. 508, it was Ithaca.• He was forced to stop at an inter also held that the fact that there was a great

mediate point in consequence of ice in the accumulation of freight for transportation canal, the defendant receiving the goods over a railroad was sufficient to relieve the and transporting them to Ithaca. Defend- | corporation from liability for the consequenant said that plaintiff was not entitled to ces of delay in transportation. “For losses, recover because he had failed to deliver the

expenses, or other damage arising from mere goods as agreed. Plaintiff offered to prove delay, occasioned by a temporary excess of that he was delayed in the canal in conse business, and without fault, the carrier is not quence of a collision with a scow, by which responsible.” To the same effect are Railhis boat was injured; and that he was road Co. v. Rae, 18 Ill. 488; Helliwell v. obliged to stop and repair it. The court Railway Co., 10 Biss. 170, 7 Fed. 68. In Geischarged the jury that the accident to the mer v. Railway Co., 102 N. Y. 563, 7 N. E. boat, though caused by misfortune and with- 828, and Railroad Co. v. Bennett, 89 Ind. 457, out fault of the plaintiff, was no cause for it was held that a railroad was not liable his delay, which nothing could excuse but where a mob of strikers impeded or interrupt. the act of God or the enemies of the coun ed the carriage of the goods in question. In try. This instruction was held to be er the following cases it was also held that the roneous, Mr. Justice Sutherland observing: carrier was responsible only for the conse"Plaintiff, as a common carrier, was respon quences of unreasonable delay: The Success, sible, at all events, for the final safety and 7 Blatchf. 551, Fed. Cas. No. 13,586; Page v. delivery of the defendants' goods to them Munro, Holmes, 232, Fed. Cas. No. 10,665; at Ithaca. Nothing could exonerate him Ward v. Railroad Co., 47 N. Y. 29; Hand v. from that responsibility but the act of God Baynes, 4 Whart. 204; Kinnick v. Railroad

Co., 69 Iowa, 665, 29 N. W. 772; Boner v. any particular time." The maritime cases Steamboat Co., 1 Jones (N. C.) 211; Conger in England nearly all turn upon the question V. Railroad Co., 6 Duer, 375; Railroad Co. v. of reasonable time for the delivery of the Hazen, 84 III. 36.

goods after the ship arrives at her port of The English cases are even more explicit destination. than our own, in treating the contract of the Counsel for the appellee has failed to cite carrier as demanding only the exercise of due an authority which lends countenance to the diligence with respect to the time of delivery. theory of the opinion in this case, that the A leading case is that of Briddon v. Railway liability of the carrier for the consequences Co., 28 L. J. Exch. 51, 4 Hurl. & N. (Am. Ed.) of delay is coextensive with his liability for 847, which was an action against a railway the loss of the goods carried. Not only do company for a failure to deliver certain beasts the general principles of law hold him liable within a reasonable time, whereby the beasts simply for the exercise of diligence, but the were deteriorated in condition, and a market bill of lading in this case expressly exonlost (precisely the damages which are claimederates him for "loss or damage from delays." in this case). Transportation was delayed by From reasons of public policy, and from the a heavy snow storm, by wuich the market fact that the carrier and his servants are day at Nottingham was lost. It was claimed solely intrusted with the custody of goods that under the circumstances the road was carried, and the owner bas no means of probound to obtain additional engines, and use tecting himself against their embezzlement extraordinary efforts to send on the cattle or negligence, the law has imposed upon the trucks. But the court held that the contract | carrier the stringent liability of an insurer. entered into was to carry the cattle without As was said by Lord Holt in Coggs v. Berdelay, and in a reasonable time, under ordi- nard, 2 Ld. Raym. 909, 918: “This is a polnary circumstances; that, ir a snow storm itic establishment provided by the policy of occurred, which made it impossible to carry the law for the safety of all persons, the the cattle, except by extraordinary effort, in- | necessity of whose affairs obliges them to volving additional expense, the company was trust these sorts of persons, that they may not bound to use such means and to incur be safe in their ways of dealing; for else such expense. In Hales v. Railway Co., 4 these carriers might have an opportunity Best & S. 66, a jury found that the goods were for undoing all persons that had any deal. not delivered within a reasonable time. Lord ings with them, by combining with thieves, Chief Justice Cockburn said: “Where no etc., and yet doing it in such a clandestine time is mentioned for delivering goods car manner as would not be possible to be disried, the obligation of the carrier is to deliver covered. And this is the reason the law is them within a reasonable time; and that is a founded upon in that point." question of fact.

The person who sends These reasons, however, have no applicagoods is not entitled to call upon the carrier tion to his carrying within a reasonable time. to go out of bis accustomed course, or to use As to such contract, the law imposes upon extraordinary means of conveyance; but the him no extraordinary liability. carrier must do that which is within his pow As it is admitted in this case that the deer, and which it is reasonable to expect that lay was occasioned by a defect in the ship, he should do, for delivering the goods." which could not have been discovered by

The case of Taylor v. Railway Co., L. R. the ordinary methods of inspection, it seems. 1 C. P. 385, was an action for damages sus

to me clear that the carrier should not be tained in consequence of a delay in the de held responsible. If it be said*that the dam.. livery of three hampers of poultry sent by ages in this case were the direct consequenthe railway for the early London market. ces of the breach of warranty of seaworthiThe delay was occasioned by an accident ness, the reply is that for such damages the which occurred on defendant's line to a train ship is not responsible, provided her owner of another railway company, which had run has used due diligence to make her seaworning powers over tbat portion of the line. thy, although, if the goods had been lost or The accident resulted solely from the negli- destroyed, he would have been liable as in. gence of the servants of the other corpora surer. In the cases above cited, if the mer. tion. It was held that the railway was not chandise had been lost in consequence of the responsible; Erle, C. J., observing: “I think collision in the canal, the extraordinary aca common carrier's duty to deliver safely has cumulation of freight, the violence of the nothing to do with the time of delivery. mob, or the accident upon the railway, there That is a matter of contract, and when, as in could have been no doubt whatever that the the present case, there is no express con carrier would have been liable; but, as the tract, there is an implied contract to deliver consequence of the accidents in each case within a reasonable time; and that I take was a mere delay in the delivery of the to mean a time within which the carrier can goods, the carrier was exonerated. I find it deliver, using all reasonable exertions." Said impossible to distinguish these cases in prin. Montague Smith, J.: “Common carriers do ciple from the one under consideration. iadeed insure to this extent, that they will 2. There is also a further exception in the safely and securely carry the goods, but not į bill of lading in this case of “loss or damto the extent of guarantying their arrival at

age from

machinery, or defects v.15s.c.-35

'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 atent defects, I regard this exception as exonerating the carrier. There are but few cases, either in this country or in Lagland, 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 cargo 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 unsea worthy. 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 sea worthy 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 break. ing of her crank shaft from a defect in the welding which made her unseaworthy. In 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 con. tracted 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. Hanilton, 12 App. Cas. 484, is equally inapplicable.

If, under the circumstances of the present case, the vessel be not exonerated by the ex. ception 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)

judgment for the defendant, and the plain. CITIZENS' SAVINGS & LOAN ASS'N v.

tiff brought error. PERRY COUNTY, ILL.

George A. Sanders and William B. San. (March 4, 1895.)

ders, for plaintiff in error. Thomas J. Lay. No. 56.

man, for defendant in error. COUNTY RAILWAY AID BONDE-VALIDITY-ESTOPPEL BY RECITALS.

*Mr. Justice HARLAN delivered the opin. 1. On July 3, 1869, the county of Perry, Ill.,

ion of the court. Foted a subscription to the stock of the B. & S. I. R. Co., to be paid in county bonds, upon con

This action was brought to recover the dition that no bonds should be issued until the

amount of certain coupons taken from bonds railroad company should locate its shops at Du

issued in the name of Perry county, Ill., quoin. The shops were never located at Duquoin, but the bonds were nevertheless issued, and con

and made payable, some of them to the tained recitals that they were issued under the Belleville & Southern Illinois Railroad Comact of the state legislature approved February 14, pany or bearer; others, to the Chester & 1857. This was the act incorporating the rail

Tamaroa Coal & Railroad road company, and authorizing it to receive sub

Company or scriptions; and among its provisions was one re

bearer. quiring municipal or county subscriptions to be The bonds, in each instance, were issued made under the provisions of the act of Novem

in payment of a subscription in the name of ber 6, 1849, which, among other things, required submission of the question to the voters, and a

that county to the capital stock of the cormajority of votes in its favor. The bonds were porations to which they were respectively registered in the office of the state auditor, pur made payable. suant to the act of April 16, 1869; the county judge certifying to the auditor that all the pre

The parties, by written stipulation, walved liminary conditions prescribed by that act to en & jury, and the case was tried by the court. title bonds to registration had been complied It was found by the court that an electior with. The auditor then indorsed upon each bond

was held in the county of Perry on the 3d a certificate that the same had been registered in his office pursuant to the provisions of the last

day of July, 1869, upon the question of subnamed act. After the vote, but before the issu- scription to the capital stock of the Belle ance of the bonds by the county court, the pro ville & Southern Illinois Railroad Company, vision in the state constitution of 1870 forbidding all municipal subscriptions to railroad corpora

to be paid by the bonds of that county; tions, except "where the same have been author

that the notices for the election contained a ized, under existing laws," went into operation. clause providing, among other things, that Held, that the county officers violated their duty

"no bonds should be issued or stock subin issuing the bonds when the condition as to location of shops had not been complied with, and

scribed until the railroad company should that, in the absence of a compliance therewith, locate their machine shops at Duquoin"; and the issuance of the bonds had not been author- | that the shops, costing about $150,000, were ized, so as to bring them within the exception to

located at East St. Louis, and not at Duthe constitutional prohibition; that the bonds were therefore invalid when issued; and that the quoin. recitals were not such as to preclude the county In respect of the bonds issued to the Chesfrom showing noncompliance with the condition, ter & Tamaroa Coal & Railroad Company, even as against innocent holders. 2. The said county of Perry also voted to

it was found that the proposition for a subsubscribe for stock of the C. & T. C. & R. Co.; scription by the county to the capital stock the election being ordered and held with refer- of that corporation, upon which the people ence to the act of April 16, 1869.

This act provided that its benefits should not apply to any

voted February 19, 1870, "did not receive a subscription not authorized by a majority of legal majority of the qualified voters of the counvoters "living in the county," etc., while the act ty, 986 votes only being cast in favor of it, of 1819 required a majority of the qualified vot while at the last preceding general election, ers, taking as the standard the number of votes cast at the last previous election for county offi

held in November, 1869, there were 2,024 cers. The order for the election provided that no

votes thrown”; in other words, that the subscription should be made unless 9S1 legal vot proposition failed, by 27 votes, to receive a ers of said county" shall bave voted for the same.

majority of the qualified voters of the counThe county records showed that 2 more than this number voted for it, and only 91 against it. The

ty. order of the county court for the issuance of the The conclusion of law as to each class of bonds recited that all the conditions prescribed bonds was that, by reason of the facts so by the order for the election had been complied

found, they were void, for want of power with. Held, that as the number of legal voters "residing in the county" at the time of the elec

to issue them. tion was a matter dehors the record, and could First. The bonds issued to the Belleville only be determined by the county court on inves & Southern Illinois Railroad Company. tigation, its finding that a majority of such voters had voted for the subscription must be ac

The Belleville & Southern Illinois Railroad cepted, and the county was estopped, as against Company was incorporated by an act of the an innocent holder, from atteinpting to show the general assembly of Illinois, approved Febcontrary.

ruary 14, 1857, with authority to locate, conIn Error to the Circuit Court of the Unit struct, and operate a railroad from the city ed States for the Southern District of Illi of Belleville, in St. Clair county, southwardpois.

ly, by way of the village of Pinckneyville, This was an action at law by the Citizens' to some eligible point on the Illinois Centra) Savings & Loan Association against the Railroad in Perry county. By the ninth County of Perry, II., to recover on certain section of its charter the directors of the county bonds. The circuit court entered a company were "authorized and empowered

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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 sbares of the capital stock of any railroad company then organized or incorporated, or which might be thereafter organized or incorporated, in any sum not ex. ceeding $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 honds. 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 qualitied voters of such county or city (taking as a standard the number of votes thrown at the last general election previous to the vote bad 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 heid upon a day of a general election, then the number of votes thrown at such general election for county officers shall be the stand. ard of the number of qualified yoters as aforesaid. •

1 Gross' Ill. St. 1873, p. 532.

These bonds were dated January 1, 1971, 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, con. tained 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 redeema. ble, 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 Southern 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 reg. istration 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'cer-tify 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 10th, 1869."

Although these bonds did not upon their face expressly refer to the railroad act of 1819, the recital in them that they were issued under the authority of and in accord. ance with the act of 1857, incorporating the

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