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tents and value otherwise unknown) for transportation by the Michigan Central Railroad Company to the warehouse at leaving the place blank. This blank may have been intended for the insertion of some place on the road of the company, or at its termination. It cannot be assumed by the court, in the absence of evidence on the point, that it was intended for the place of the final destination of the cattle. On the margin of the receipt is the following: "NOTICE. - See rules of transportation on the back hereof." And among the rules is one declaring that goods consigned to any place off the company's line, or beyond it, would be sent forward by a carrier or freightman, when there are such, in the usual manner, the company acting for that purpose as the agent of the consignor or consignee, and not as carrier; and that the company would not be responsible for any loss, damage, or injury to the property after the same shall have been sent from its warehouse or station. Though this rule, brought to the knowledge of the shipper, might not limit the liability imposed by a specific through contract, yet it would tend to rebut any inference of such a contract from the receipt of goods marked for a place beyond the road of the company.
The doctrine invoked by the plaintiff's counsel against the limitation by contract of the common-law responsibility of carriers has no application. There is, as already stated, no commonlaw responsibility devolving upon any carrier to transport goods over other than its own lines, and the laws of Illinois restricting the right to limit such responsibility do not, therefore, touch the case. Nor was the common-law liability of the defendant corporation enlarged by the fact that a notice of the charges for through transportation was posted in the defendant's station-house at Chicago. Such notices are usually found in stations on lines which connect with other lines, and they furnish important information to shippers, who naturally desire to know what the charges are for through freight as well as for those over a single line. It would be unfortunate if this information could not be given by a public notice in the station of a company without subjecting that company, if freight is taken by it, to responsibility for the manner in which it is carried on intermediate and connecting lines to the end of the route.
Nor was the liability of the company affected by the fact that the notice on the margin of the receipt stated that the ticket given might be "exchanged for a through bill of lading." It would seem to indicate that the receipt was not deemed of itself to constitute a through contract. The through bill of lading may also have contained a limitation as to the extent of the route over which the company would undertake to carry the cattle. Besides, if weight is to be given to this notice as characterizing the contract made, it must be taken with the rule to which it also calls attention, that the company assumed responsibility only for transportation over its own line.
It follows from the views expressed that the court below erred in its charge that the ticket or bill of lading was a through contract, whereby the defendant company agreed to transfer the cattle to Philadelphia, and safely deliver them there to the order of Myrick.
Our attention has been called to some decisions of the Supreme Court of Illinois, which would seem to hold that a railroad company which receives goods to carry, marked for a particular destination, though beyond its own line, is prima facie bound to carry them to that place and deliver them there; and that an agreement to that effect is implied by the reception of goods thus marked. Illinois Central Railroad Co. v. Frankenberg, 54 Ill. 88; Illinois Central Railroad Co. v. Johnson, 34 id. 389.
Assuming that such is the purport of the decisions, they are not binding upon us. What constitutes a contract of carriage is not a question of local law, upon which the decision of a State court must control. It is a matter of general law, upon which this court will exercise its own judgment. Chicago City v. Robbins, 2 Black, 418; Railroad Company v. National Bank, 102 U. S. 14; Hough v. Railway Company, 100 id. 213.
If the doctrine of the Supreme Court of Illinois, as to what constitutes a contract of carriage over connecting lines of roads, is sound, it ought to govern, not only in Illinois, but in other States; and yet the tribunals of other States, and a majority of them, hold the reverse of the Illinois court, and coincide with the views of this court. Such is the case in Massachusetts.
Nutting v. Connecticut River Railroad Co., 1 Gray (Mass.), 502; Burroughs v. Norwich & Worcester Railroad Co., 100 Mass. 26. If we are to follow on this subject the ruling of the State courts, we should be obliged to give a different interpretation to the same act the reception of goods marked for a place beyond the road of the company in different States, holding it to imply one thing in Illinois and another in Massachusetts. The judgment must be reversed, and the case remanded for a new trial; and it is
BUSH v. KENTUCKY.
1. Where the Circuit Court quashes an indictment, found against the prisoner in a State court, wherefrom the cause was on his petition removed, it has no jurisdiction to proceed against him for the crime against the State wherewith he was charged.
2. Where the highest court of the State had declared to be unconstitutional her statute whereby, because of their race and color, citizens of African descent were excluded from grand and petit juries, and it had further decided that the officer summoning or selecting jurors must disregard race or color, a person of that descent against whom a criminal prosecution was subsequently instituted in the State court has no just ground for declaring, in advance of a trial, that he was denied, or that in the State tribunals he cannot enforce, the equal civil rights secured to him as a citizen by the Constitution or the statutes of the United States. The case was not, therefore, removable to the Circuit Court, nor should the panel of petit jurors be set aside simply on the ground that it consisted wholly of white persons.
3. Where pursuant to such a statute, and before its unconstitutionality was so declared, the grand jurors were selected who found the indictment against the prisoner, a person of that descent, the court of original jurisdiction should, on his motion, set aside the indictment.
ERROR to the Court of Appeals of the State of Kentucky. The case is stated in the opinion of the court.
Mr. Llewellen P. Tarlton for the plaintiff in error.
Mr. William C. P. Breckenridge and Mr. Joseph D. Hunt for the defendant in error.
MR. JUSTICE HARLAN delivered the opinion of the court. This court shares the regret expressed by counsel that the record is in some respects so meagre, and in other respects so
confused, that it is impossible to ascertain what facts were before the inferior State court when it passed certain orders that are commented upon in argument. Some of those orders refer to affidavits and other documents that are not made in any form a part of the record. The difficulties in our way have been, in part, removed by the frank concessions of counsel on both sides, and we cheerfully acknowledge the aid we have received from them in our search through the record for the substantial questions to be determined. We may also add, that our embarrassment has been increased by the consideration that the case is one of no small moment, involving, as it does, on the one hand, the life of a citizen, and on the other, the question whether the judicial tribunals of a State have denied to a prisoner rights guaranteed by the Constitution of the United States. Whether the record before us shows such a denial we will now proceed to inquire.
John Bush, a citizen of African descent, was indicted in 1879 in the Circuit Court for Fayette County, Kentucky, for murder. Upon his first trial the jury, as was stated by counsel, being unable to agree, were discharged. At the next trial he was found guilty, and condemned to suffer death. Upon appeal to the Court of Appeals that judgment was reversed and a new trial ordered for errors committed by the court of original jurisdiction: first, in neglecting to instruct as to involuntary manslaughter, as distinguished from murder, the evidence being such as to authorize the jury to find the accused guilty of either offence; second, in defining the term "malice;" third, in failing properly to instruct whether the death of the deceased was necessarily or probably caused by the wound or ensued from scarlet fever negligently communicated by her physician. Bush v. Commonwealth, 78 Ky. 268.
Upon the return of the case the accused, as we infer from the record, filed a petition for its removal to the Circuit Court of the United States. That petition, we are informed by counsel, was filed May 24, 1880. It, however, is not in the record. We assume that it was based upon sect. 641 of the Revised Statutes, which authorizes, in general, the removal into such court of any criminal prosecution, commenced in a State court, for any cause whatever, against any person who is denied or can
not enforce in the judicial tribunals of the State, or in the part of the State where the prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The record, however, does state that copies of all the proceedings in the inferior State court were filed by the accused in the Federal court, before which he was brought upon a writ of habeas corpus addressed to the jailer having him in custody.
On the 19th of October, 1880, the accused by his counsel moved in the Federal court that the trial proceed. That motion was denied, and the response by the jailer to the writ of habeas corpus was adjudged to be insufficient. The reasons which controlled this action are set forth in the following order:
"And it appearing to the court from the transcript of the record heretofore filed that the indictment herein was found by a grand jury, summoned under and in accordance with the provisions of section 1, chapter 62, General Statutes of Kentucky, which excludes all other than white citizens from being summoned, or serving thereon, the court is of opinion that said law is a violation of the 14th amendment to the Constitution of the United States, and orders said indictment quashed.
"The marshal of the court is ordered to return the said John Bush to Lexington, Kentucky, as speedily as possible, and there release him. He will, however, before setting him at liberty, notify the Commonwealth's attorney, or, in his absence, the county attorney, or, in his absence, the county judge. This notice shall be in writing, stating the time and place of his release, and he will report his action to this court.
"The defendant excepts to so much of this order as requires his return to Lexington, Kentucky."
The accused was subsequently arrested by the State authorities and a new indictment returned for the same offence. At the term of the court held on the 6th of December, 1880, he tendered an affidavit, stating that "on the fourth day of Feb-ruary, 1879, the grand jury of Fayette County returned into this court an indictment charging him with the same offence, and upon the same statement of facts charged herein; that he, as he had a right to do under the 641st section of the Revised