Kansas Pacific Railway Company v. Nichols.

carriers of such articles only as were carried by common carriers under the common law prior to the year 1607; for if such were the case they would be carriers of but very few of the innumerable articles that are now actually carried by railroad companies. And it can hardly be supposed that they were created for the mere purpose of taking the place of pack-horses, or clumsy wagons, often drawn by oxen, or such other primitive means of carriage and transportation as were used in England prior to that year. Railroads are undoubtedly created for the purpose of carrying all kinds of property which the common law would have permitted to be carried by common carriers in any mode, either by land or water, which probably includes all kinds of personal property. decision, then, upon this question is, that whenever a railroad company receive cattle or live stock to be transported over their road from one place to another, such company assume all the responsibilities of a common carrier, except so far as such responsi bilities may be modified by special contract.

Our

[The court then considered an instruction as to the damages, and reversed the judgment for error therein.]

NOTE.-See Lake Shore & Michigan Southern Railway Company v. Perkins, ante, 275; also Rixford v. Smith, 13 Am. Rep. (52 N. H. 355) and the note thereto, wherein the con flicting cases on this subject are collected.

The case of Kansas Pacific Railway' Company v. Reynolds, 8 Kansas, 623, referred to in the foregoing opinion, was for an injury to cattle occasioned by delay in transporting. The cattle were shipped upon a special contract releasing the railroad company from all liability "for damages of whatever kind that may happen during the transit; this company do not assume to transport stock in any given time." The verdict was for the plaintiff, and the judgment was reversed for errors in practice, so that the question presented in the foregoing case was not necessarily before the court, but the court passed upon it as a question "likely to arise on a subsequent trial." The court said:

"Did the plaintiff in error act in the capacity of a common carrier in the transportation of these cattle, or was it entitled to the instruction refused, that it did not transport the cattle in question as a common carrier? It transported them either as a common or a private carrier. Two vital distinctions in the measure of duty and responsibility incurred by carriers are these: The common carrier must carry for all who choose to employ him. The private can accept the goods of one and refuse those of another. The common carrier insures against all loss save that caused by the act of God or the public enemy. The private carrier is responsible only for ordinary care. Hence, whether the company was a common or private carrier is obviously vital. An idea seems to be obtaining in some directions that so far as regards the transportation of live stock, railroad companies are not common carriers. This is countenanced by the dicta of several judges and by some decisions. To this doctrine we cannot give our assent. It seems to us that whenever, and in so far as they assume to transport property, they do so as common carriers. The sole purpose for which railroads are built is transportation. The only legitimate business in which they can engage is transportation. They perform a public duty, are engaged in a public employment, and subserve a public use so far, that, as established by the decisions of this court, as well as those

Kansas Pacific Railway Company v. Nichols.

of the highest courts of many other States, taxation of the community in aid of their construction can be sustained. Above all other carriers are they dignified by judicial decisions as public agencies. Alone of carriers have they obtained public assistance. It is with ill grace, then, that they seek to avoid the responsibility which is assumed by all others who engage in the business of transportation. Receiving funds of the public to aid in construction, and then claiming to be simply private carriers in transporting for that public, presents an unseemly contradiction. Tried by all the definitions in the text-books and approved decisions, railroad companies are common carriers in reference to all property they assume to carry. PARKER, C. J., in Dwight v. Brewster, 1 Pick. 50, defined a common carrier to be one who undertakes for hire to transport the goods of such as choose to employ him from place to place.' Edwards in his work on Bailments says: To constitute him a common carrier he must be one who as a regular business, undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place.' STORY says he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation pro hac vice.' To the same effect are the definitions given by Angell, Kent, Bouvier and others. Can any thing be plainer than that within the scope of these definitions a railroad company is a common carrier? Transportation is its business, not a casual occupation. How frequently has it been mulcted in damages for refusing to receive and transport passengers upon equal terms? This could never be sustained if it was only a private carrier. As a common carrier it is entitled to all the privileges, and subject to all the conditions and obligations which belong to such employment. Among these is this: One may be a common carrier in reference to certain classes of goods without being under any obligation to transport a different class. He is not under obligations to transport such goods as his vehicles are not suitable to carry. A light express wagon employed as a business in carrying small parcels from one part of a city to another, is engaged in the business of a common carrier; yet no obligation rests upon the proprietor to carry in it a piano or other heavy bulky article, whose size and weight would endanger his vehicle; nor is he under obligation to provide vehicles suitable for the transportation of such goods. It is enough if he receives and carries such goods as are suitable for his vehicles. As Baron PARKE said, in Carr v. The Lancashire & Yorkshire Railway Co., 7 Excheq. 711: 'Most certainly every comron carrier is bound only to carry the goods of that description which the public calling requires him to carry. That is established by the case of Johnson v. The Midland Railway C., 4 Excheq. 367. See also DENIO, J., in Wibert v. N. Y. & Erie R. R. Co., 1 N. Y. 243 'A carrier may lawfully refuse to receive goods offered for transportation, because his coach is full, or because he has not the means of transporting such goods. Morse v. Slue, 1 Vent. 190-238; Lane v. Cotton, 1 Ld. Raymond, 646, 652; Story on Bailments, § 508.' By this rule railroad companies, like other common carriers, unless restricted by some requirement of their charter, or the statutes, not having vehicles suitable for, nor holding themselves out as engaged in the business of carrying cattle, may lawfully refuse to transport them. But this is a qualification incident to the business, common to all carriers, and not limited to any particular species of property.

"It is claimed there is a difference between live stock and other property as to the responsibility assumed by a carrier in its transportation; that the voluntary motion of the stock introduces an element of danger into the transportation against which neither reason nor authority require that the carrier insure; that, Inasmuch as it is customary that the shipper or some one for him, accompany the stock, there is only a qualified or partial delivery to the carrier; and, also, that proof that a railroad company has suitable cars and is engaged in the business of carrying cattle is not proof that it is a common carrier as to such cattle, because to insure their safe transportation requires yards and stables, with conveniences for feeding, both at the termini and along the route, as well as a corps of experienced stockmen to take care of them In the transit. These last, as it seems to us, are duties incident to the employment, and not elements to determine its character. Engaging in the business of transporting cattle, it becomes a duty to provide every suitable facility therefor. Not the

Kansas Pacific Railway Company v. Nichols.

manner of doing the work, but the fact of engaging in the business, is the test lald down in the books for determining the character of the carrier. A proper system of brakes is necessary on every passenger train to insure the safety of those on board. Is it not enough to show that a railroad company has passenger coaches, and is engaged in the business of carrying passengers, to establish its character as a common carrier? Must it also be shown that the train is provided with a proper system of brakes, and all the other requisites of safety? Would proof that these were wanting diminish the responsibility of the carrier? Will failure of duty lessen the obligation? If we were to take judicial notice of the fact that the shipper, or some one for him, goes with the stock to take care of it during transportation, we should also be compelled to take judicial notice that the shipment is, as in this case, by special contract. The company thus limits responsibility, and the shipper assumes more of the risk. That the voluntary motion of the stock increases the risk of transportation, is evident. But increase of risk does not diminish responsibility. It calls for more care. There is more risk in carrying mirrors than railroad iron. The carrier's measure of obligations is the same. Petroleum, gunpowder, and nitro-glycerine, particularly the latter, are very dangerous to transport; yet, if one engages in the business of carrying them, does he not assume the obligations of a common carrier. That a contract by which a shipper assumes all risk from the action of the cattle themselves, is a reasonable one, cannot be questioned. It may be that, without any special contract, the law ought to be so changed that such risk be assumed by the shipper: but such change must, it seems to us, be made by the legislature and not by the courts. It is said that the carrier of slaves did not insure their safety, and that cattle should be placed upon the same footing as slaves. That carriers of slaves were not insurers, was, it is true, the nearly uniform ruling of courts. Boyce v. Anderson, 2 Pet. 150: Clark v. McDonald, 4 McCord, 223; 4 Porter (Ala.), 234. It was a ruling growing out of the anomalous character of the institution, rather than logically sustained by the rules of the common law. Slaves were held to be passengers. It would hardly do to say that cattle were passengers, and that the measure of obligation in their transportation was the same. On this general subject the language of Judge RANNEY, in the case of Wilson v. Hamilton, 4 Ohio St. 722, is in point: "We have been no more fortunate in finding any sufficient support for the position that the responsibilities of a common carrier in respect to other property do not attach to the carriage of living animals. No such distinction has anywhere been recognized. The contrary is expressly laid down by the elementary authors to which I have referred, as well as in several of the cases cited; to which may be added others: Angell on Carriers, § 214; Story on Bailments, 8 546; Stuart v. Crawley, 2 Stark. 287; Porterfield v. Humphreys, 8 Humph. 497; Palmer v Grand Junction Rly., 4 M. & W. 749. This question has within a few years, from the great numbers of domestic cattle now carried from the west to the east, by land and water, assumed a very decided importance; but we can feel no hesitation in declaring that those who undertake their transportation take upon themselves the obligation to deliver them safely against all contingencies, except such as would excuse for the non-delivery of other property.

The conclusion then to which we have arrived is, that a railroad company engaging In the business of transporting cattle assumes all the responsibilities of a common carrier. It insures against all loss, except that caused by the act of God, or the public enemy. If it would relieve itself of this responsibility, it must take the same steps as In the transportation of any other property. It may do this by special contract, but such contract never relieves against negligence. 26 Vt. 247." - REP.

Jones v. Blacklidge.

JONES, plaintiff in error, v. BLACKLIDGE.

(9 Kans. 562.)

Contract-agreement to collect claim against the government for a part thereof void.

Defendant, having a claim against the United States, employed the plaintiff to collect it, agreeing to pay him therefor, twenty per cent of the claim when collected. The United States paid the money to defendant. In an action by the plaintiff for his percentage, held, that the agreement was in contraven tion of the act of congress to prevent frauds upon the treasury (10 U. S. Stat. at Large, 170, § 1), and was therefore void.

ACTION by Blacklidge against Jones to recover $1,340, alleged to be due upon a contract. The opinion states the case.

J. W. Deford and A. W. Benson, for plaintiff in error.

VALENTINE, J. On the 24th of December, 1864, John T. Jones, an adopted Ottawa Indian, had a claim pending in the Indian department against the government of the United States for tho sum of $6,700. The claim was originally larger, but it had been referred to the superintendent of Indian affairs for the central superintendency, who reported in favor of allowing that amount. The claim was for injuries done to the claimant's property in the year 1856. On the 24th of December, 1864, Jones entered into an agreement in writing, with Blacklidge, as follows:

"Articles of agreement this day made between John T. Jones, of Franklin county, Kansas, and A. N. Blacklidge, of Lawrence, Kansas, witnesseth: That the said Jones has this day employed the said Blacklidge to prosecute and collect a claim for him and against the government of the United States, for the sum of $6,700, and for which service the said Jones agrees to pay the said Blacklidge twenty per centum on the amount of said claim when collected. "OTTAWA, December 24, 1864. JOHN T. JONES."

At the time this agreement was made, an act of congress, entitled "An act to prevent frauds upon the treasury of the United States," annroved February 26, 1853, was in force. Section 1 of said act reads as follows:

Jones v. Blacklidge.

"Be it enacted, etc., That all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof." 10 U. S. Stat. at Large, 170, § 1.

In a treaty with the Ottawas, of February 23, 1867, a provision was inserted for the payment of this claim. 15 Stat. at Large, 518, art. 18. And by an act of congress of April 10, 1869, an appropriation was made for the payment of the same. 16 Stat. at Large, 34, Ottawas. After this appropriation was made, Jones drew the whole amount of the claim, and then refused to pay Blacklidge any portion thereof. Blacklidge is now seeking, by this action, to

recover his share thereof. Can he do it?

The validity of such contract or agreement is the first and principal question in the case. The question was raised in various ways in the court below, and now it comes squarely before this court. We do not hesitate to say that the contract was absolutely void. It was champertous in its nature, against public policy, and just such a contract as section 1 of the act of congres to prevent frauds upon the treasury of the United States wisely prohibited. It was a conditional transfer, or assignment, of a part, share, or interest in a claim against the United States, without attesting witnesses, and before a warrant for the payment thereof was issued. And it makes no difference that the consideration therefor were services to be performed in the future. The transfer or assignment of a claim is within the statute (if otherwise within), "whatever may be the consideration therefor." Any consideration that will support a contract will bring it within the statute, if it is within. Neither is it necessary that the interest transferred should be absolute, or vested, in order to come within the statute. A contingent or conditional interest is sufficient. The statute is express, that a conditional transfer or assignment is sufficient; and if the transfer or assignment be conditional, the interest in the thing transferred or assigned must also of necessity be conditional. A contingent