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action, was engaged in tearing down a sion to be in conflict with Fish v. Chicago, bridge on the line of the railroad, [44] R. I. & P. R. Co. 263 Mo. 106, 123, 172 and a defect in a claw bar which he was S. W. 340, Ann. Cas. 1916B, 147, 8 N. directed to use caused the bar to slip C. C. A. 538, it is without jurisdiction, while he was attempting to draw a bolt; and therefore orders said cause certified in consequence he lost his balance and to the supreme court for its determinafell to the ground, a distance of 12 feet. tion." The defect, it is alleged, Williams did The supreme court, upon considering not know.

Fish v. Chicago, R. I. & P. R. Co. and Negligence, however, was charged other cases, decided that "it was the duty against him, and assumption of risk and of the master to furnish the servant a contributory negligence.

reasonably safe claw bar with which to He recovered a verdict in the sum of do the work. The failure to furnish $5,000. Motions for new trial and ar- that character of a claw bar was neglirest of judgment were denied and the gence upon the part of the master. If case was appealed to the Kansas City the defects were so glaring, and the claw court of appeals.

bar so patently defective that an ordiThe facts, as recited by the court, are narily prudent servant would not have that Williams was twenty-one years old, used it, then its use under such circumand had been reared on a farm. He stances was negligence upon the part of entered the service of the railroad as a the servant, which negligence, under the common laborer in August, 1915, and rule in Missouri, would bar him from a worked for it until his injury in Novem- recovery. But not so under the Federal ber of that year, his work being that of statute.” [272 Mo. 623, 200 S. W. 53.] "helping build steel bridges and taking In other words, the court held that Wildown old ones.” He was ordered by the liams's assumption of the risk did not foreman in charge of the work to use a have the consequence assigned to it by claw bar which was defective, in that the the Kansas City court of appeals, but, if claws “had become so rounded and dull it existed, amounted in legal effect only by long usage that they could not be to contributory negligence, and that such made to grab the shank securely, and negligence, under the Federal statute, slipped from their hold when plaintiff worked a reduction of damages, and not (Williams) pressed downward on the a defeat of the action, and, applying handle, causing him to lose his balance these elements of decision, adjudged that and fall from the cap to the ground.” the "case was well tried by the court

The plaintiff stated that to discover nisi, and its judgment should be afthe defect required an inspection of the firmed.” It was so ordered. underside of the tool, and that, in obey- In its view of the Federal statute and ing the order of the foreman, he did not the defense under it, the court erred. pause to make such inspection, but used / Seaboard Air Line R. Co. v. Horton, 233 the tool without any but casual inspec-| U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, tion of its top surface, which did not re- 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, veal the defect.

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-0. R. Co. v. De Atley, 241 U. S. 310, 60 view of the Federal Employers' Liability L. ed. 1016, 36 Sup. Ct. Rep. 564; Erie Act.

R. Co. v. Purucker, 244 U. S. 320, 61 L. The conclusion of the court was that ed. 1166, 37 Sup. Ct. Rep. 629; Boldt “the defect in the claw bar was so ob- v. Pennsylvania R. Co. 245 U. S. 441, vious that the most cursory and super-| 62 L. ed. 385, 38 Sup. Ct. Rep. 139. ficial inspection would have disclosed it [16] And the requirement of the act to the plaintiff.” And further: "The prevails over any state law. Seaboard risk was just as obvious as the [45] Air Line Co. v. Horton, supra; Atchison, defect. This was a simple tool, which, T. & S. F. R. Co. v. Ilarold, 241 U. S. in the course of use, would be expected 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. to fall into such defective condition, 665; New York C. R. Co. v. Winfield, and plaintiff must be held to have ap- 244 C. S. 147, 61 L. ed. 1015, L.R.A. preciated the danger and to have volun. 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. tarily assumed it."

Cas. 1917D, 1139, 14 N. C. C. A. 680; The court reversed the judgment. It New Orleans & N. E. R. Co. v. Harris, denied a motion for rehearing, but con- 247 U. S. 367, 62 L. ed. 1167, 38 Sup. Ct. sidered and adjudged "that, on account Rep. 535. of one of the judges deeming the deci. Counsel for respondent, however, in

sists that the views of the supreme court , not be said to be wrong, in view of the upon the ruling of the assumption of risk general attitude of the courts toward claims are "of purely academic interest and of of exemption, adverted to by the state court, no practical importance” in the consid- and of the fact that a subsequent agree. eration of the legality of the verdict and not suppose that they had an irrevocable

ment shows that the parties concerned did judgment in the trial court. That court, grant, and especially the fact that the state it is said, submitted the fact to the jury, Constitution in force in 1853 provided in and also submitted the relative contri- art. 8, § 1, that all general laws and special bution of Williams's negligence and the acts passed pursuant to that section might negligence of defendants to his injury. be altered or repealed. But this is an underestimate of the ac

(For other cases, see Appeal and Error, VIII.

m, 1, in Digest Sup. Ct. 1908.) tion of the trial court. The court was requested to instruct the jury that the

[No. 63.] 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

vember 8, 1920. was used, was to relieve defendants from liability for the injury resulting there. I ERROR to the Supreme Court of

the of from." The court refused the instruction as it was requested, and amended it by County of Albany, in that state, to re

view adding thereto, "and such fact [the as

a judgment affirmed successively by sumption of risk] will be considered by the Appellate Division of the Supreme you in determining the amount of plain Court, Third Department, and by the tiff's recovery, if any, under all of the Court of Appeals, refusing to disturb instructions."

an assessment of railway property for The refusal and modification were as

taxation. Affirmed. signed as error, and the supreme court

See same case below, in supreme court, considered and decided, as we have seen,

179 App. Div. 951, 165 N. Y. Supp. 1106; that the fact was of no determining im- in court of appeals, 224 N. Y. 187, 120

N. E. 155. portance, and, if it existed, only constituted contributory negligence, and could

The facts are stated in the opinion. operate only in reduction of the amount Messrs. William L. Visscher and Lewis of recovery, not defeat recovery. This E. Carr submitted the cause for plainwas error, as we have seen.

tiff in error: Judgment reversed and cause All of the essential elements of an manded for further proceedings not in- executed contract are found in the facts consistent with this opinion.

in this case.

13 C. J. 237-245, 315, 318; Justice v. Lang, 42 N. Y. 497, 1 Am. Rep. 576;

Dartmouth College Woodward, 4 (47) PEOPLE OF THE STATE OF NEW, Wheat. 518, 656-659, 4 L. ed. 629, 664. YORK ON THE RELATION OF TROY UNION RAILROAD COMPANY, Piff. A grant by the legislature of a state in Err.,

to a corporation, either in the act incor

porating it or by other legislation, of a G. FRANK MEALY, George Spence, Jr., franchise, privilege, or exemption, folGeorge B. Walker, and Silas Downs, Jr., lowed by action of the corporation under as Assessors, and Hiram W. Gordinier, as or in reliance upon the grant so made, Comptroller, of the City of Troy, State of constitutes a contract, the obligation of New York,

which cannot be impaired by subsequent

legislation. (See S. C. Reporter's ed. 47-50.)

Dartmouth College v. Woodward, 4 Error 'to state court - following deci- Wheat. 518, 627, 656, 4 L. ed. 629, 656,

sion below - impairing contract ob- 66 1. ligations.

This principle has been repeatedly apA decision of the highest court of plied to statutes, the effect of which was New York that the exemption from taxa - to exempt property from taxation. tion above a specified sum, granted to the Troy Union Railroad Company by N. Y, Carter, 52 llun, 458, 5 X. Y. Supp. 507,

People ex rel. Troy Union R. ('o. v. Laws 1853, chap. 462, could be repealed allirmed in 117 V. Y. 625, 22 X. E. 1128; without impairing contract obligations, can

New Jersey v. Yard, 95 L. S. 104, 115– Note.-On error to state courts in 117, 24 L. ed. 352, 357, 355; Wilmingcases presenting questions of impair-ton & W. R. Co. v. Reid, 13 Wall, 261, ment of contract obligations--see note 20 L. ed. 568; Ilumphrey v. Pegues, 10 to Osborne v. Clark, 51 L. ed. U. S. 619. I Wall. 211, 219, 21 L. ed. 326, 327; Pear

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sall v. Great Northern R. Co. 161 U. S., tent, the conduct of the parties under a
646, 662, 40 L. ed. 838, 843, 16 Sup. Ct. contract, long continued, becomes and
Rep. 705; Wright v. Georgia R. & Bkg. is a practical construction of it, for it
Co. 216 Ú. S. 420, 54 L. ed. 544, 30 Sup. is the best evidence of what the parties
Ct. Rep. 242; Home of the Friendless intended.
v. Rouse, 8 Wall. 430, 437, 19 L. ed. Nicoll v. Sands, 131 N. Y. 24, 29 N.
495, 497.

E. 818; Woolsey v. Funke, 121 N. Y. This rule applies to municipal action 92, 24 N. E. 191; Brooklyn L. Ins. Co. approved by the state.

v. Dutcher, 95 U. S. 269, 273, 24 L. ed. 13 C. J. 994, 995; Murray v. Charles- 410, 411; Carthage Tissue Paper Mills ton, 96 U. S. 432, 444, 24 L. ed. 760, 762; v. Carthage, 200 N. Y. 14, 93 N. E. 60. Louisville v. Cumberland Teleph. Co. 224 U. S. 649, 664, 56 L. ed. 934, 940, the cause for defendant in error.

Mr. George B. Wellington submitted

Mr. 32 Sup. Ct. Rep. 572; Grand Trunk Thomas H. Guy was on the brief: Western R. Co. v. South Bend, 227 U.

The exemption statute was
S. 544, 57 L. ed. 633, 44 L.R.A.(N.S.)
405, 33 Sup. Ct. Rep. 303; Mercantile gratuity; and N. Y. Laws 1909, chap.
Trust & D. Co. v. Columbus, 203 U. S. 201, the repealing act, is valid.

Christ Church v. Philadelphia County,
311, 320, 51 L. ed. 198, 202, 27 Sup. Ct. 24 How. 300, 16 L. ed. 602; People ex
Rep. 83; New Orleans Gaslight Co. v. rel. Davies v. Tax & A. Comrs. 47 N. Y.
Louisiana Light & H. P. & Mfg. Co.
115 U. S. 650, 662–665, 29 L. ed. 516, 22 l. ed. 805; West Wisconsin R. Co.

Tucker v. Ferguson, 22 Wall. 527, 521, 522, 6 Sup. Ct. Rep. 252; Detroit v. Trempealeau County, 93 U. S. 595, . .

23 L. ed. 814; Rochester v. Rochester 238, 247,249, 253, 61 L. ed. 268, 273-R. Co. 182 N.'Y. 99, 70 L.R.A. 773, 74 275, P.U.R.1917B, 1010, 37 Sup. Ct. Rep. N. E. 953, 205 U. S. 236, 51 L. ed. 784,

27 Sup. Ct. Rep. 469. The Act of 1853 was not one coming within the reservation contained in N. be construed to be a part of the orig

Even though the Act of 1853 should Y. Const. art. 8, § 1, which was the only inal charter granted to the Troy Union general reservation therein contained.

Railroad Company, nevertheless the Atty. Gen. v. North America L. Ins.

legislature has the power to repeal it. Co. 82 N. Y. 182.

Union Pass. R. Co. v. Philadelphia, The intent of the city of Troy is to 101 U. S. 528, 25 L. ed. 912; People ex be ascertained from the language used, rel. Cooper Union v. Gass, 196 N. Y. 323, the surrounding circumstances, and the 123 Am. St. Rep. 549, 83 N. E. 64, 13 object the parties had in view. Maloney v. Iroquois Brewing Co. 173 Union R. Co. v. Carter, 52 Hun, 458, 5

Ann. Cas. 678; People ex rel. Troy
N. Y. 310, 66 N. E. 19; Gillett v. Bank

N. Y. Supp. 507.
of America, 160 N. Y. 555, 55 N. E. 292;
Schoonmaker v. Hoyt, 148 N. Y. 431, 42 [48] Mr. Justice Holmes delivered
N. E. 1059.

the opinion of the court:
The intent of the parties is to be as- This was a proceeding in the supreme
certained in the first place from the lan- court of New York, seeking by certiorari
guage used. If the words are plain and to review and set aside an assessment of
free from ambiguity they are, in the city taxes upon the relator's property at
absence of something showing a differ- a valuation of $1,000,000; the relator con-
ent sense, to have their ordinary mean- tending that it had a contract by virtue of
ing.

which the city of Troy and the state were Dwight v. Germania L. Ins. Co. 103 limited to a valuation of $30,000 for the N. Y. 346, 57 Am. Rep. 729, 8 N. E. purposes of the tax. A referee, a single 654; Gans v. Ætna L. Ins. Co. 214 N. Y. judge, the appellate division of the su330, L.R.A.1915F, 703, 108 N. E. 443. preme court, and the court of appeals suc

If there is doubt or uncertainty from cessively have decided against the relator's the language used, reference may be had claim, but it brings the case here on the to the circumstances connected with and ground that an attempt to repeal the statsurrounding the making and execution ute upon which it bases its immunity imof the instrument and the object the pairs the obligation of contracts and is parties had in view.

void. 88 Misc. 649, 152 N. Y. Supp. 435, Maloney v. Iroquois Brewing Co. 179 App. Div. 951, 165 N. Y. Supp. 1106, supra; Gillett v. Bank of America, 160 224 N. Y. 187, 120 N. E. 155. N. Y. 555, 55 N. E. 292; Schoonmaker The case is this: In 1851 it was desired v. Hoyt, supra.

to establish a common terminal station and Again, if there is doubt as to the in- I common tracks passing through a portion

of the city for four railroads then having In 1886 and 1887 the assessors of Troy termini in Troy. An act of that year, assessed the Troy Union Railroad Comchap. 255, authorized the city and the four pany for $783,984 instead of the agreed roads to subscribe for the stock of a new $30,000, but it was held that the comcorporation to be formed for that purpose, pany's property above $30,000 was exand 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 Carter, 52 Hun, 458, 5 N. Y. Supp. and by contract of the four subscribing 507, 117 N. Y. 625, 22 N. E. 1128. În roads. In July, 1851, the contemplated 1909, however, the Act of 1853 was recorporation was formed with a stock of pealed. Acts 1909, chap. 201. The as$30,000; it is the relator in this suit. Then sessment complained of in this case was on December 3, 1852, an agreement was made since this repeal. made by the city of Troy, the Troy Union The court of appeals held that the Railroad Company, and the four other concession in the Act of 1853 was sponrailroads, providing for carrying out the taneous and belonged to the class of priviplan, and therein the city covenanted to legia favorabilia, as it is put in Christ join in an application to the legislature Church v. Philadelphia County, 24 [50] of New York that the new road should be How. 300, 16 L. ed. and therefore exempt from taxation upon an amount was subject to repeal. This is a quesexceeding the present amount of its capi- tion upon which we would be slow to tal stock, and, if such law should not be differ with a decision of the New York passed, to refund the amount of the city courts with regard to a New York taxes for any valuation exceeding said corporation. It may be that too much present stock. The above-mentioned mort- stress was laid upon the absence of gage was executed, the four roads gave the a consideration for the exemption city their covenant of indemnity, and (Wisconsin & M. R. Co. v. Powers, (49) thereafter, on June 24, 1853, the 191 U. S. 379, 385-387, 48 L. ed. 229-232, desired act of the legislature was passed. 24 Sup. Ct. Rep. 107); and that a fairly Laws 1853, chap. 462. It provided that strong argument could be made for in"for the purposes of taxation in the city terpreting the grant of 1853 as purporting of Troy, and in the county of Rensselaer, to be coextensive with the contract recited the property of the Troy Union Railroad in that grant, whether correctly recited or Company shall be estimated and assessed not. It may be, if it were material, that (as the common council of said city of the contract of 1858 should be construed Troy, by its contract with said company, as a continuance of that of 1852 as re

agreed that the same should be) formed, notwithstanding the habitually inat the amount of the capital stock of said accurately used word "annulled.” United company, and no more." The above-men- States v. McMullen, 222 U. S. 460, 471, tioned covenant of the city and this pro- 56 L. ed. 269, 273, 32 Sup. Ct. Rep. 128. vision of the statute are the grounds upon But, taking into consideration the general which the relator founds its claim. 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 that section might be altered or repealed, the said contract, which is hereby an

we are not prepared to say that the decinulled.” The city of Troy agreed that if sion below was wrong. We are dealing, the Act of 1853 should be repealed at any of course, only with the contract supposed time it would join in an application to the to be embodied in the Act of 1853. The legislature, as in the former contract, and liability of the city on its covenant to covenanted again that if the desired law refund taxes upon an assessment exceedshould not be passed, it would refund as ing $30,000 was not passed upon below, before. The other arrangements do not and is not before us in this case. Deed mention here.

Judgment affirmed. 65 L. ed.

125

V.

to

em

1511 WILLIAM E. JOHNSON, Piff. in, demonstrate that the supremacy test Err.,

has been employed not only to restrain

state taxation of Federal operations and STATE OF MARYLAND.

instrumentalities, but also to prevent (See S. C. Reporter's ed. 51–57.)

any exercise of state power or control in

such Federal domain. States - relation Federal

govern

Ohio v. Thomas, 173 U. S. 276, 283, ment - immunity of Federal

43 L. ed. 699, 701, 19 Sup. Ct. Rep. 453; ployee from state law.

North Dakota ex rel. Flaherty v. Han1. An employee of the United States son, 215 U. S. 515, 54 L. ed. 307, 30 Sup. does not secure a general immunity from Ct. Rep. 179; Re Neagle, 135 U. S. 1, state law while acting in the course of his 34 L. ed. 55, 10 Sup. Ct. Rep. 658; Pememployment.

bina Consol. Silver Min. & Mill Co. v. [For other cases, sec States, IV. d, in Digest Pennsylvania, 125 U. S. 181, 186, 31 L.

Sup. Ct. 1908.) States relation to Federal govern- ed. 650, 652, 2 Inters. Com. Rep. 24, 8

ment - requiring chauffeur's license Sup. Ct. Rep. 737; Re Waite, 81 Fed. of Postoffice employee.

359; Farmers & M. Sav. Bank v. Minne2. A state may not require a postoffice sota, 232 U. S. 516, 526, 58 L. ed. 706, employee to cease driving a government mo. 711, 34 Sup. Ct. Rep. 354; Boske v. tor truck in the transportation of mail over a post road until he shall obtain a license Comingore, 177 U. S. 459, 468-470, 44 by submitting to examination before a state L. ed. 846, 850, 851, 20 Sup. Ct. Rep. official and paying a fee.

701; Williams v. Talladega, 226 U. S. [For other cases, see States, iv. d, in Digest 404, 57 L. ed. 275, 33 Sup. Ct. Rep. 116; Sup. Ct. 190S.)

United States v. Ansonia Brass & Cop

per Co. 218 U. S. 452, 471, 54 L. ed. [No. 289.]

1107, 1114, 31 Sup. Ct. Rep. 49; Holmes

v. Jennison, 14 Pet. 540, 574, 575, 10 L. Argued October 18, 1920. Decided Novem- ed. 579, 596, 597; Re Loney, 134 U. S. ber 8, 1920.

372, 375, 33 L. ed. 949, 951, 10 Sup. Ct.

Rep. 384; Western U. Teleg. Co. v. IN N ERROR to the Circuit Court of Brown, 234 U. S. 542, 547, 58 L. ed.

Frederick County, in the State of 1457, 1459, 5 N. C. C. A. 1024, 34 Sup. Maryland, to review a conviction of a Ct. Rep. 955; Re Lewis, 83 Fed. 159; Postoffice employee for driving a motor Castle v. Lewis, 166 C. C. A. 279, 254 truck without a state license. Reversed. Fed. 917; United States ex rel. Flynn v.

The facts are stated in the opinion. Fuellhart, 106 Fed. 911; United States Mr. W. C. Herron argued the cause,

Lipsett, 156 Fed. 65; Pundt v. Penand, with Assistant Attorney General dleton, 167 Fed. 997; Re Thomas, 31 Stewart and Mr. Harry S. Ridgely, filed C. C. A. 80, 58 U. S. App. 431, 87 Fed. a brief for plaintiff in error:

453; Stegall v. Thurman, 175 Fed. 813; To assert that there may be reason-| Re Wulzen, 235 Fed. 362, Ann. Cas. able regulation of a Federal operation 1917A, 274; Ex parte Beach, 259 Fed.

956. or agency by a state, acting under its police power, is to deny the complete

If a state possesses power to detersovereignty of the Federal government mine qualifications of plaintiff in error, in the discharge of its constitutional then it likewise possesses power to levy functions.

a tax upon him for revenue or other M'Culloch v. Maryland, 4 Wheat. 316, purposes. 429, 436, 4 L. ed. 579, 607, 609; Tennes

M'Culloch v. Maryland, 4 Wheat, 316, see v. Davis, 100 U. 'S. 257, 263, 25 L. 429, 4 L. ed. 579, 582; Shaffer v. Carter, ed. 648, 650; Henderson v. New York 252 U. S. 37, 50, 64 L. ed. 4-15, 455, 46 (Ilenderson v. Wickham) 92 U. S. 259, 123 U. S. 623, 659, 31 L. ed. 205, 209,8

Sup. Ct. Rep. 221; Mugler v. Kansas, 271, 23 L. ed. 543, 548; Weston v. Charleston, 2 Pet. 449, 467, 7 L. ed. 481. Sup. Ct. Rep. 273; Dobbins v. Erie 487; Society for Savings v. Coite, 6 County, 16 Pet. 435, 447, 418, 10 L. ed. Wall. 594, 604, 18 L. ed. 897, 901; Os- 1022, 1020, 1027; Wheeling, P. & C. born v. Bank of United States, 9 Wheat. Transp. Co. v. Wheeling, 99 U. S. 273, 738, 867, 6 L. ed. 204, 234.

279, 283, 25 L. ed. 412, 414, 415. Decisions of this and other courts

The Maryland statute is open to the

objection that it seeks to determine the Note.-As to state or municipal regu- fitness of, with reserved power to deny, lations affecting those engaged in han- a means adopted by Congress in executdling United States mail-see note to ing its constitutional power to establish Com. v. Closson, L.R.A.1918C, 940. postoffices and post roads.

V.

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