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not be said to be wrong, in view of the general attitude of the courts toward claims of exemption, adverted to by the state court, and of the fact that a subsequent agreement shows that the parties concerned did not suppose that they had an irrevocable grant, and especially the fact that the state Constitution in force in 1853 provided in art. 8, § 1, that all general laws and special acts passed pursuant to that section might be altered or repealed.

sists that the views of the supreme court upon the ruling of the assumption of risk are "of purely academic interest and of no practical importance" in the consideration of the legality of the verdict and judgment in the trial court. That court, it is said, submitted the fact to the jury, and also submitted the relative contribution of Williams's negligence and the negligence of defendants to his injury. But this is an underestimate of the action of the trial court. The court was requested to instruct the jury that the effect of the assumption of risk by Williams incident to the use of the claw bar, Submitted October 21, 1920. Decided Noand the circumstances under which it was used, was to relieve defendants from

liability "for the injury resulting there

from." The court refused the instruc

tion as it was requested, and amended it by adding thereto, "and such fact [the assumption of risk] will be considered by you in determining the amount of plaintiff's recovery, if any, under all of the instructions."

The refusal and modification were assigned as error, and the supreme court considered and decided, as we have seen, that the fact was of no determining importance, and, if it existed, only constituted contributory negligence, and could operate only in reduction of the amount of recovery, not defeat recovery. This was error, as we have seen.

Judgment reversed and

cause

re

[For other cases, see Appeal and Error, VIII. m, 1, in Digest Sup. Ct. 1908.]

[No. 63.]

vember 8, 1920.

IN ERROR to the Supreme Court of

the State of New York in and for the

County of Albany, in that state, to review a judgment affirmed successively by the Appellate Division of the Supreme Court, Third Department, and by the Court of Appeals, refusing to disturb an assessment of railway property for taxation. Affirmed.

See same case below, in supreme court, in court of appeals, 224 N. Y. 187, 120 179 App. Div. 951, 165 N. Y. Supp. 1106;

N. E. 155.

The facts are stated in the opinion.

Messrs. William L. Visscher and Lewis E. Carr submitted the cause for plaintiff in error:

All of the essential elements of an manded for further proceedings not in- executed contract are found in the facts consistent with this opinion.

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in this case.

13 C. J. 237-245, 315, 318; Justice v.
Lang, 42 N. Y. 497, 1 Am. Rep. 576;
Dartmouth College v.
Wheat. 518, 656-659, 4 L. ed. 629, 664.
Woodward, 4

A grant by the legislature of a state to a corporation, either in the act incorporating it or by other legislation, of a franchise, privilege, or exemption, followed by action of the corporation under or in reliance upon the grant so made, constitutes a contract, the obligation of which cannot be impaired by subsequent legislation.

Dartmouth College v. Woodward, 4 Wheat. 518, 627, 656, 4 L. ed. 629, 656, 664.

This principle has been repeatedly applied to statutes, the effect of which was to exempt property from taxation.

ligations. A decision of the highest court of New York that the exemption from taxation above a specified sum, granted to the Troy Union Railroad Company by N. Y. Carter, 52 Hun, 458, 5 N. Y. Supp. 507, People ex rel. Troy Union R. Co. v. Laws 1853, chap. 462, could be repealed affirmed in 117 N. Y. 625, 22 N. E. 1128; without impairing contract obligations, canNew Jersey v. Yard, 95 U. S. 104, 115Note. On error to state courts in 117, 24 L. ed. 352, 354, 355; Wilmingcases presenting questions of impair- ton & W. R. Co. v. Reid, 13 Wall. 264, ment of contract obligations--see note 20 L. ed. 568; Humphrey v. Pegues, 16 to Osborne v. Clark, 51 L. ed. U. S. 619. Wall. 244, 249, 21 L. ed. 326, 327; Pear

action, was engaged in tearing down a bridge on the line of the railroad, [44] and a defect in a claw bar which he was directed to use caused the bar to slip while he was attempting to draw a bolt; in consequence he lost his balance and fell to the ground, a distance of 12 feet. The defect, it is alleged, Williams did not know.

Negligence, however, was charged against him, and assumption of risk and contributory negligence.

He recovered a verdict in the sum of $5,000. Motions for new trial and arrest of judgment were denied and the case was appealed to the Kansas City court of appeals.

The facts, as recited by the court, are that Williams was twenty-one years old, and had been reared on a farm. He entered the service of the railroad as a common laborer in August, 1915, and worked for it until his injury in November of that year, his work being that of "helping build steel bridges and taking down old ones." He was ordered by the foreman in charge of the work to use a claw bar which was defective, in that the claws "had become so rounded and dull by long usage that they could not be made to grab the shank securely, and slipped from their hold when plaintiff (Williams) pressed downward on the handle, causing him to lose his balance and fall from the cap to the ground." The plaintiff stated that to discover the defect required an inspection of the underside of the tool, and that, in obeying the order of the foreman, he did not pause to make such inspection, but used the tool without any but casual inspection of its top surface, which did not reveal the defect.

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sion to be in conflict with Fish v. Chicago, R. I. & P. R. Co. 263 Mo. 106, 123, 172 S. W. 340, Ann. Cas. 1916B, 147, 8 N. C. C. A. 538, it is without jurisdiction, and therefore orders said cause certified to the supreme court for its determination."

The supreme court, upon considering Fish v. Chicago, R. I. & P. R. Co. and other cases, decided that "it was the duty of the master to furnish the servant a reasonably safe claw bar with which to do the work. The failure to furnish that character of a claw bar was negligence upon the part of the master. If the defects were so glaring, and the claw bar so patently defective that an ordinarily prudent servant would not have used it, then its use under such circumstances was negligence upon the part of the servant, which negligence, under the rule in Missouri, would bar him from a recovery. But not so under the Federal statute." [272 Mo. 623, 200 S. W. 53.] In other words, the court held that Williams's assumption of the risk did not have the consequence assigned to it by the Kansas City court of appeals, but, if it existed, amounted in legal effect only to contributory negligence, and that such negligence, under the Federal statute, worked a reduction of damages, and not a defeat of the action, and, applying these elements of decision, adjudged that the "case was well tried by the court nisi, and its judgment should be affirmed." It was so ordered.

In its view of the Federal statute and the defense under it, the court erred. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Jacobs v. SouthThe railroad was engaged in interstate ern R. Co. 241 U. S. 229, 60 L. ed. 970, commerce, and the cause of action, under 36 Sup. Ct. Rep. 588; Chesapeake & the case as made, fell within the pur-O. R. Co. v. De Atley, 241 U. S. 310, 60 view of the Federal Employers' Liability Act.

The conclusion of the court was that "the defect in the claw bar was so obvious that the most cursory and superficial inspection would have disclosed it to the plaintiff." And further: "The risk was just as obvious as the [45] defect. This was a simple tool, which, in the course of use, would be expected to fall into such defective condition, and plaintiff must be held to have appreciated the danger and to have voluntarily assumed it."

The court reversed the judgment. It denied a motion for rehearing, but considered and adjudged "that, on account of one of the judges deeming the deci-I

L. ed. 1016, 36 Sup. Ct. Rep. 564; Erie R. Co. v. Purucker, 244 U. S. 320, 61 L. ed. 1166, 37 Sup. Ct. Rep. 629; Boldt v. Pennsylvania R. Co. 245 U. S. 441, 62 L. ed. 385, 38 Sup. Ct. Rep. 139.

[46] And the requirement of the act prevails over any state law. Seaboard Air Line Co. v. Horton, supra; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. 665; New York C. R. Co. v. Winfield, 244 U. S. 147, 61 L. ed. 1045, L.R.A. 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. Cas. 1917D, 1139, 14 N. C. C. A. 680; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 62 L. ed. 1167, 38 Sup. Ct. Rep. 535.

Counsel for respondent, however, in

sists that the views of the supreme court
upon the ruling of the assumption of risk
are "of purely academic interest and of
no practical importance" in the consid-
eration of the legality of the verdict and
judgment in the trial court. That court,
it is said, submitted the fact to the jury,
and also submitted the relative contri-
bution of Williams's negligence and the
negligence of defendants to his injury.
But this is an underestimate of the ac-
tion of the trial court. The court was
requested to instruct the jury that the
effect of the assumption of risk by Wil-
liams incident to the use of the claw bar, Submitted October 21, 1920.
and the circumstances under which it
was used, was to relieve defendants from

not be said to be wrong, in view of the
general attitude of the courts toward claims
of exemption, adverted to by the state court,
and of the fact that a subsequent agree.
ment shows that the parties concerned did
not suppose that they had an irrevocable
grant, and especially the fact that the state
Constitution in force in 1853 provided in
art. 8, § 1, that all general laws and special
acts passed pursuant to that section might
be altered or repealed.

[For other cases, see Appeal and Error, VIII. m, 1, in Digest Sup. Ct. 1908.]

liability "for the injury resulting there-N

from." The court refused the instruc

tion as it was requested, and amended it by adding thereto, "and such fact [the assumption of risk] will be considered by you in determining the amount of plaintiff's recovery, if any, under all of the

instructions."

The refusal and modification were assigned as error, and the supreme court considered and decided, as we have seen, that the fact was of no determining importance, and, if it existed, only constituted contributory negligence, and could operate only in reduction of the amount of recovery, not defeat recovery. This was error, as we have seen.

Judgment reversed and

cause re

[No. 63.]

vember 8, 1920.

Decided No

ERROR to the Supreme Court of

the State of New York in and for the

County of Albany, in that state, to review a judgment affirmed successively by the Appellate Division of the Supreme Court, Third Department, and by the Court of Appeals, refusing to disturb an assessment of railway property for taxation. Affirmed.

See same case below, in supreme court, in court of appeals, 224 N. Y. 187, 120 179 App. Div. 951, 165 N. Y. Supp. 1106;

N. E. 155.

The facts are stated in the opinion.

Messrs. William L. Visscher and Lewis E. Carr submitted the cause for plaintiff in error:

All of the essential elements of an manded for further proceedings not in- executed contract are found in the facts consistent with this opinion.

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(See S. C. Reporter's ed. 47-50.) Error to state court following deciimpairing contract ob

sion below

in this case.

13 C. J. 237-245, 315, 318; Justice v.
Lang, 42 N. Y. 497, 1 Am. Rep. 576;
Dartmouth College v.
Wheat. 518, 656-659, 4 L. ed. 629, 664.
Woodward, 4

A grant by the legislature of a state to a corporation, either in the act incorporating it or by other legislation, of a franchise, privilege, or exemption, followed by action of the corporation under or in reliance upon the grant so made, constitutes a contract, the obligation of which cannot be impaired by subsequent legislation.

Dartmouth College v. Woodward, 4 Wheat. 518, 627, 656, 4 L. ed. 629, 656, 664.

This principle has been repeatedly applied to statutes, the effect of which was to exempt property from taxation.

ligations. A decision of the highest court of New York that the exemption from taxation above a specified sum, granted to the People ex rel. Troy Union R. Co. v. Troy Union Railroad Company by N. Y. Carter, 52 Hun, 458, 5 N. Y. Supp. 507, Laws 1853, chap. 462, could be repealed affirmed in 117 N. Y. 625, 22 N. E. 1128; without impairing contract obligations, canNew Jersey v. Yard, 95 U. S. 104, 115Note. On error to state courts in 117, 24 L. ed. 352, 354, 355; Wilmingcases presenting questions of impair- ton & W. R. Co. v. Reid, 13 Wall. 264, ment of contract obligations--see note 20 L. ed. 568; Humphrey v. Pegues, 16 to Osborne v. Clark, 51 L. ed. U. S. 619. Wall. 244, 249, 21 L. ed. 326, 327; Pear

sall v. Great Northern R. Co. 161 U. S. 646, 662, 40 L. ed. 838, 843, 16 Sup. Ct. Rep. 705; Wright v. Georgia R. & Bkg. Co. 216 Ú. S. 420, 54 L. ed. 544, 30 Sup. Ct. Rep. 242; Home of the Friendless v. Rouse, 8 Wall. 430, 437, 19 L. ed. 495, 497.

This rule applies to municipal action approved by the state.

13 C. J. 994, 995; Murray v. Charleston, 96 U. S. 432, 444, 24 L. ed. 760, 762; Louisville v. Cumberland Teleph. Co. 224 U. S. 649, 664, 56 L. ed. 934, 940, 32 Sup. Ct. Rep. 572; Grand Trunk Western R. Co. v. South Bend, 227 U.

S. 544, 57 L. ed. 633, 44 L.R.A.(N.S.) 405, 33 Sup. Ct. Rep. 303; Mercantile Trust & D. Co. v. Columbus, 203 U. S. 311, 320, 51 L. ed. 198, 202, 27 Sup. Ct. Rep. 83; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 662-665, 29 L. ed. 516, 521, 522, 6 Sup. Ct. Rep. 252; Detroit United R. Co. v. Michigan, 242 U. S. 238, 247-249, 253, 61 L. ed. 268, 273275, P.U.R.1917B, 1010, 37 Sup. Ct. Rep.

87.

The Act of 1853 was not one coming within the reservation contained in N. Y. Const. art. 8, § 1, which was the only general reservation therein contained.

Atty. Gen. v. North America L. Ins. Co. 82 N. Y. 182.

The intent of the city of Troy is to be ascertained from the language used, the surrounding circumstances, and the object the parties had in view.

Maloney v. Iroquois Brewing Co. 173 N. Y. 310, 66 N. E. 19; Gillett v. Bank of America, 160 N. Y. 555, 55 N. E. 292; Schoonmaker v. Hoyt, 148 N. Y. 431, 42 N. E. 1059.

The intent of the parties is to be ascertained in the first place from the language used. If the words are plain and free from ambiguity they are, in the absence of something showing a different sense, to have their ordinary meaning.

Dwight v. Germania L. Ins. Co. 103 N. Y. 346, 57 Am. Rep. 729, 8 N. E. 654; Gans v. Ætna L. Ins. Co. 214 N. Y. 330, L.R.A.1915F, 703, 108 N. E. 443.

If there is doubt or uncertainty from the language used, reference may be had to the circumstances connected with and surrounding the making and execution of the instrument and the object the parties had in view.

Maloney v. Iroquois Brewing Co. supra; Gillett v. Bank of America, 160 N. Y. 555, 55 N. E. 292; Schoonmaker v. Hoyt, supra.

tent, the conduct of the parties under a contract, long continued, becomes and is a practical construction of it, for it is the best evidence of what the parties intended.

Nicoll v. Sands, 131 N. Y. 24, 29 N. E. 818; Woolsey v. Funke, 121 N. Y. 92, 24 N. E. 191; Brooklyn L. Ins. Co. v. Dutcher, 95 U. S. 269, 273, 24 L. ed. 410, 411; Carthage Tissue Paper Mills v. Carthage, 200 N. Y. 14, 93 N. E. 60.

the cause for defendant in error.
Mr. George B. Wellington submitted
Mr.
Thomas H. Guy was on the brief:

a

The exemption statute was mere gratuity; and N. Y. Laws 1909, chap. 201, the repealing act, is valid. Christ Church v. Philadelphia County, 24 How. 300, 16 L. ed. 602; People ex rel. Davies v. Tax & A. Comrs. 47 N. Y. 501; Tucker v. Ferguson, 22 Wall. 527, 22 L. ed. 805; West Wisconsin R. Co. 23 L. ed. 814; Rochester v. Rochester v. Trempealeau County, 93 U. S. 595, R. Co. 182 N. Y. 99, 70 L.R.A. 773, 74 N. E. 953, 205 U. S. 236, 51 L. ed. 784, 27 Sup. Ct. Rep. 469.

be construed to be a part of the origEven though the Act of 1853 should inal charter granted to the Troy Union Railroad Company, nevertheless the legislature has the power to repeal it.

Union Pass. R. Co. v. Philadelphia, 101 U. S. 528, 25 L. ed. 912; People ex rel. Cooper Union v. Gass, 190 N. Y. 323, 123 Am. St. Rep. 549, 83 N. E. 64, 13 Union R. Co. v. Carter, 52 Hun, 458, 5 Ann. Cas. 678; People ex rel. Troy N. Y. Supp. 507.

[48] Mr. Justice Holmes delivered the opinion of the court:

This was a proceeding in the supreme court of New York, seeking by certiorari to review and set aside an assessment of city taxes upon the relator's property at a valuation of $1,000,000; the relator contending that it had a contract by virtue of which the city of Troy and the state were limited to a valuation of $30,000 for the purposes of the tax. A referee, a single judge, the appellate division of the supreme court, and the court of appeals successively have decided against the relator's claim, but it brings the case here on the ground that an attempt to repeal the statute upon which it bases its immunity impairs the obligation of contracts and is void. 88 Misc. 649, 152 N. Y. Supp. 435, 179 App. Div. 951, 165 N. Y. Supp. 1106, 224 N. Y. 187, 120 N. E. 155.

The case is this: In 1851 it was desired to establish a common terminal station and Again, if there is doubt as to the in- I common tracks passing through a portion

In 1886 and 1887 the assessors of Troy assessed the Troy Union Railroad Company for $783,984 instead of the agreed $30,000, but it was held that the company's property above $30,000 was ex

v. Carter, 52 Hun, 458, 5 N. Y. Supp.
507, 117 N. Y. 625, 22 N. E. 1128. În
1909, however, the Act of 1853 was re-
pealed. Acts 1909, chap. 201.
The as-
sessment complained of in this case was
made since this repeal.

of the city for four railroads then having termini in Troy. An act of that year, chap. 255, authorized the city and the four roads to subscribe for the stock of a new corporation to be formed for that purpose, and the city to issue bonds when secured empt. People ex rel. Troy Union R. Co. by a mortgage of the new road to be built and by contract of the four subscribing roads. In July, 1851, the contemplated corporation was formed with a stock of $30,000; it is the relator in this suit. Then on December 3, 1852, an agreement was made by the city of Troy, the Troy Union Railroad Company, and the four other railroads, providing for carrying out the plan, and therein the city covenanted to join in an application to the legislature of New York that the new road should be exempt from taxation upon an amount exceeding the present amount of its capital stock, and, if such law should not be passed, to refund the amount of the city taxes for any valuation exceeding said present stock. The above-mentioned mortgage was executed, the four roads gave the city their covenant of indemnity, and [49] thereafter, on June 24, 1853, the desired act of the legislature was passed. Laws 1853, chap. 462. It provided that "for the purposes of taxation in the city of Troy, and in the county of Rensselaer, the property of the Troy Union Railroad Company shall be estimated and assessed (as the common council of said city of Troy, by its contract with said company, agreed that the same should be) at the amount of the capital stock of said company, and no more." The above-mentioned covenant of the city and this provision of the statute are the grounds upon which the relator founds its claim.

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The court of appeals held that the concession in the Act of 1853 was spontaneous and belonged to the class of privilegia favorabilia, as it is put in Christ Church v. Philadelphia County, 24 [50] How. 300, 16 L. ed. 602, and therefore was subject to repeal. This is a question upon which we would be slow to differ with a decision of the New York courts with regard to a New York corporation. It may be that too much stress was laid upon the absence of a consideration for the exemption (Wisconsin & M. R. Co. v. Powers, 191 U. S. 379, 385-387, 48 L. ed. 229–232, 24 Sup. Ct. Rep. 107); and that a fairly strong argument could be made for interpreting the grant of 1853 as purporting to be coextensive with the contract recited in that grant, whether correctly recited or not. It may be, if it were material, that the contract of 1858 should be construed as a continuance of that of 1852 as reformed, notwithstanding the habitually inaccurately used word "annulled." United States v. McMullen, 222 U. S. 460, 471, 56 L. ed. 269, 273, 32 Sup. Ct. Rep. 128. But, taking into consideration the general attitude of the courts toward claims of After 1853 there was a default in the exemption, adverted to by the court of payment of the interest on the bonds that appeals, the fact that the agreement of had been issued by the city under the 1858 shows that the parties concerned did agreement, and the city began an action not suppose that they had an irrevocable to foreclose the mortgage given by the grant, and especially the fact that the road to secure it. Thereupon, in 1858, a Constitution of New York in force in 1853 new contract was made between the par-provided in article 8, § 1, that all general ties concerned in which they, "for the pur-laws and special acts passed pursuant to pose of reforming the contract [made in 1852], adopt this instead and in place of the said contract, which is hereby annulled." The city of Troy agreed that if the Act of 1853 should be repealed at any time it would join in an application to the legislature, as in the former contract, and covenanted again that if the desired law should not be passed, it would refund as before. The other arrangements do not need mention here. 65 L. ed.

that section might be altered or repealed, we are not prepared to say that the decision below was wrong. We are dealing, of course, only with the contract supposed to be embodied in the Act of 1853. The liability of the city on its covenant to refund taxes upon an assessment exceeding $30,000 was not passed upon below, and is not before us in this case. Judgment affirmed.

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