[578] *Mr. Chief Justice Fuller delivered the opinion of the court:

After a careful re-examination of this record we adhere to the judgment heretofore rendered, and the petition for rehearing must be denied.

In the opinion heretofore delivered, and reported 170 U. S. 681 [42: 1195], it was stated that a grant from the state of Sonora was relied on, and not a grant from the Mexican government. This was in accordance with the petition originally filed, but it appears that it had been stipulated and agreed below between counsel for the government and the claimant that the petition should be considered as amended so as to claim title from both the nation and the state. That stipulation, however, did not appear in the record, but this was not material, as we did not regard the grant, whichever its alleged source, as a valid one, for the reasons given.

We remain of opinion that, from and after the adoption of the Constitution of 1836, no [579]power existed in the separate *states to make such a grant as this. Camou v. United States, 171 U. S. 277 [43: 163], related to a grant made prior to 1836, and ruled nothing to the contrary of the decision in this case.

Construing the various applicable statutes and decrees in relation to the sale of

public lands, which were in force April 12, 1838, the date of the alleged grant, together, we think it clear that the Board of Sales which assumed to act in this matter had no power to sell and convey these lands so as to vest the purchaser with title, unless the sale was approved by the general government, and that it was not so approved. Furthermore, this Board of Sales did not assume to comply with the requirements of the law in making this sale. The members of the board really professed to be officers of

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This court accepts the interpretation of a statute of a state affixed to it by the court of last resort thereof.

The Missouri statute of 1889 making a railroad company issuing bills of lading for the transportation of property liable for damages to the property caused by the negligence of another railroad company over whose lines the property passes does not curtail the power of the company to restrict its liability by contract, to its own line, by a restriction in unambiguous terms put into the portion of its agreement reciting the contract to carry, and such statute is not, as affecting interstate transportation, repugnant to the Federal Con stitution.

[No. 11.]

Argued January 7, 10, 1898. Reargument ordered January 24, 1898. Reargued October 11, 1898. Decided May 22, 1899.

IN ERROR to the Supreme Court of the

the state, and to act for the state, although I State of Missouri to review a judgment of

the grant was declared to be made in the "name of the free, independent, and sovereign state of Sonora as well as of the august Mexican government." But it seems to us that they referred to the nation as it existed under the Federal system of 1824, as contradistinguished from the supreme central system that was in existence in 1838. We understand that when this grant purports to have been made, the officers and people of Sonora were undertaking to carry on their government as a sovereign and independent state under the national Constitution of 1824 and the laws passed thereunder, as well as the state Constitution of 1825, and subsequent laws, in violation of the National Constitution of 1836 and the laws promulgated under that instrument. This refusal to recognize their constitutional obligations put them in antagonism to the general govern ment, and, although appellee's counsel deny that Sonora was in rebellion, and say that at the time of the sale she "was a conservative protestant against the dictatorial proceedings which gave rise to the central system," we cannot agree that this sale was conducted in accordance with the paramount law, and it does not appear that the national government ever ratified or approved the grant. The various Constitutions and laws bearing

that court affirming the judgment of the trial court in favor of plaintiffs McCann & Smizer against the Missouri, Kansas, & Texas Railway Company for damages to cattle transported upon its contract of shipment. Affirmed.

See same case below, 133 Mo. 59, 35 L. R. A. 110.

The facts are stated in the opinion. Mr. George P. B. Jackson, for plaintiff in error:

In the absence of the statute under consideration, Mo. Rev. Stat. 1889, § 944, what has been designated as the "American rule" was in force in the state of Missouri; and under that the carrier, plaintiff in error here, was not to be regarded as a "forwarder" beyond its own line, and not liable for delays which occurred on a subsequent connecting line, in the absence of a special contract assuming the duties and liabilities of a common carrier beyond its own line.

Michigan C. R. Co. v. Mineral Springs Mfg. Co. 16 Wall. 318-324, 21 L. ed. 297301: Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L. ed. 827; St. Louis Ins. Co. v. St. Louis, V. T. H. & I. R. Co. 104 U. S. 146, 26 L. ed. 679; Myrick v. Michigan C. R. Co. 107 U. S. 102, 27 L. ed. 325; Coates

v. United States Exp. Co. 45 Mo. 238; Snider v. Adams Exp. Co. 63 Mo. 376; Grover & Baker Sewing Mach. Co. v. Missouri P. R. Co. 70 Mo. 672, 35 Am. Rep. 444; Dimmitt v. Kansas City, St. J. & C. B. R. Co. 103 Mo. 433.

In the absence of the statute in question, the carrier could lawfully contract against liability for loss or damage occurring on a connecting line, or occasioned by the negligence of a connecting carrier.

Hunter v. Southern P. R. Co. 76 Tex. 195; Central Trust Co. v. Wabash St. L. & P. R. Co. 31 Fed. Rep. 247, Piedmont Mfg. Co. v. Columbia & G. R. Co. 19 S. C. 353.

Beyond its own line a railroad company is not a common carrier in the strict sense of the term, but is a private carrier for hire; that is, but a bailee for hire, and as such may contract against its own negligence, and certainly against that of any other party.

107; Stanley v. Wabash, St. L. & P. R. Co. 100 Mo. 435, 8 L. R. A. 549, 3 Inters. Com. Rep. 176; Grimes v. Eddy, 126 Mo. 168, 26 L. R. A. 638; Selvege v. St. Louis & 8. F. R. Co. 135 Mo. 163.

Because it is a regulation of interstate commerce the statute in question, Mo. Rev. Stat. 1889, § 944, is in conflict with U. S. Const. art. 1, § 8, and is therefore void.

Messrs. J. H. Rodes, R. B. Bristow, and Charles E. Yeater, for defendant in error:

The supreme court of Missouri did not err in deciding that Mo. Rev. Stat. 1889, § 944, is not repugnant to the Constitution of the United States.

Dimmitt v. Kansas City, St. J. & C. B. R. Co. 103 Mo. 440; McCann v. Eddy, 133 Mo. 59, 35 L. R. A. 110; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L ed. 788; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 12 L. ed. 465; Michigan C. R. Co. v. Mineral Springs Mfg. Story, Bailm. §§ 33, 495; 2 Story, Contr. Co. 16 Wall. 318, 21 L. ed. 297; New York § 752a, and note; Fish v. Chapman, 2 Ga. C. R. Co. v. Lockwood, 17 Wall. 357, 21 L 349; Griswold v. Illinois C. R. Co. 90 Iowa, ed. 627; Ogdensburg & L. C. R. Co. v. Pratt, 265, 24 L. R. A. 647; Stephens v. Southern 22 Wall. 123, 22 L. ed. 827; Bank of KenP. Co. 109 Cal. 86, 29 L. R. A. 751; Hart-tucky v. Adams Exp. Co. 93 U. S. 174, 23 L. ford F. Ins. Co. v. Chicago, M. & St. P. R. Co. 36 U. S. App. 152, 70 Fed. Rep. 201, 17 C. C. A. 62, 30 L. R. A. 193.

If a special consideration for the agree ment limiting the liability of the carrier is necessary, it can be found in the special rate charged for shipment. The statement in the contract that the rate was a special one is prima facie evidence of the fact; and that the same rate is given to everyone under the same circumstances does not prevent its being a reduced or special rate.

McFadden v. Missouri P. R. Co. 92 Mo. 343; Rogan v. Wabash R. Co. 51 Mo. App. 665; Duvenick v. Missouri P. R. Co. 57 Mo. App. 550.

Prior to the last opinion of the supreme court of Missouri in this case the statute in question received a construction which gave it the effect of making an unlimited bill of lading prima facie evidence of a special contract assuming the duties of a common carrier to the destination on another line, but still recognizing the right to limit the carrier's liability to its own road.

Dimmitt v. Kansas City, St. J. & C. B. R. Co. 103 Mo. 433; Nines v. St. Louis, I. M. & S. R. Co. 107 Mo. 475; F. A. Drew Glass Co. v. Ohio & M. R. Co. 44 Mo. App. 416; Historical Pub. Co. v. Adams Exp. Co. 44 Mo. App. 421; Hill v. Missouri P. R. Co. 46 Mo. App. 519.

ed. 872.

The court did not err in refusing to give the three instructions asked by plaintiff, whereby it claimed release from all liability after the stock left its road. The carrier cannot stipulate to release itself from its own negligence or the negligence of its agents.

Grover & Baker Sewing Mach. Co. v. Missouri P. R. Co. 70 Mo. 674; Halliday v. St. Louis, K. C. & N. R. Co. 74 Mo. 162, 41 Am. Rep. 309; Ohio & MR. Co. v. McCarthy, 96 U. S. 258, 24 L. ed. 693; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L ed. 827; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627.

A carrier cannot make a through contract, or undertake to ship or deliver to a point beyond its line, unequivocally by contract binding itself to carry and deliver to a point of destination, and at the same time limit its liability for negligence occurring on its own road. Such contracts are against public policy.

McCann v. Eddy, 133 Mo. 59, 35 L. R. A. 110; Halliday v. St. Louis, K. C. & N. R. Co. 74 Mo. 161, 41 Am. Rep. 309.

Contracts limiting liability are to be construed by the courts most strongly against the carrier, and all doubts and ambiguities will be resolved in favor of the shipper.

Hale, Bailm. & C. 9, 433; Levering v. The statute as now construed is a regula-Union Transp. & Ins. Co. 42 Mo. 88, 97 Am. tion of commerce; and as by its terms it ap- Dec. 320; Hutchinson, Carriers, 223, § 262. plies to shipments to points "within or without this state" (Missouri), and in the case at bar is made to control the shipment from a point in Missouri to a point in Illinois, it is regulation of commerce among the


Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547: Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 571, 30 L. ed. 249, 1 Inters. Com. Rep. 31; Illinois C. R. Co. v. Illinois, 163 U. S. 142, 41 L. ed.

The plaintiff in error has not effectually contracted against such negligence in this case, because (a) it has not done so in clear, plain, and specific terms, and because (b) by the terms of the fourth clause of the contract the carrier is bound specifically for his negligence.

Westcott v. Fargo, 61 N. Y. 542, 19 Am. Rep. 300; Maguin v. Dinsmore, 56 N. Y. 168; Nicholas v. New York C. & H. R. R. Co. 89 N. Y. 370; Canfield v. Baltimore & O. R. Co. 93 N. Y. 532, 45 Am. Rep. 268;


Holsapple v. Rome, W. & O. R. Co. 86 N. | weights applying to cars of various lengths
Y. 275.

There was an expressed, but no real, consideration for such alleged releases. Plaintiff's uncontradicted evidence shows a total lack of such alleged consideration.

McFadden v. Missouri P. R. Co. 92 Mo. 351; Fontaine v. Boatmen's Sav. Inst. 57 Mo. 552; York Mfg. Co. v. Illinois C. R. Co. 3 Wall. 107, 17 L. ed. 170; McMillan v. Michigan S. & N. I. R. Co. 16 Mich. 116, 93 Am. Dec. 208.

*Mr. Justice White delivered the opinion of the court:

A statute of the state of Missouri, found in the Revised Statutes of that state, 1889, chap. 26, reads as follows:

as per tariff rules in effect on the day of ship-
ment, the same being a special rate, lower
than the regular rates, or at a rate mutually
agreed upon between the parties, for and in
consideration of which said second party
hereby covenants and agrees as follows:

"1st. That he hereby releases the party of the first part from the liability of common carrier in the transportation of said stock, and agrees that such liability shall be that of a mere forwarder or private carrier for hire. He also hereby agrees to waive release, and does hereby release, said first party from any and all liability for and on account of any delay in shipping said stock, after the delivery thereof to its agent, and from any delay in receiving same after being tendered to its agent.

31] "Sec. 944. Whenever any property is received by a common carrier to be transferred from one place to another, within or without this state, or when a railroad or other trans- consideration aforesaid hereby assumes, and "4th. That the said second party for the portation company issues receipts or bills of releases said first party from, risk of injury lading in this state, the common carrier, railroad or transportation company issuing such or loss which may be sustained by reason of bill of lading shall be liable for any loss, dam- caused by any mob, strike, threatened or any delay in the transportation of said stock age, or injury to such property, caused by its actual violence to person or property, from negligence or the negligence of any other common carrier, railroad or transportation any source; failure of machinery or cars, incompany to which such property may be de- jury to track or yards, storms, floods, escape livered, or over whose line such property may fright of animals, or crowding one upon anor robbery of any stock, overloading cars, pass; and the common carrier, railroad or other, or any and all other causes except the transportation company issuing any such re- negligence of said first party, and said negliceipt or bill of lading shall be entitled to re-gence not to be assumed, but to be proved by cover, in a proper action, the amount of any the said party of the second part. loss, damage, or injury it may be required to pay to the owner of such property from the common carrier, railroad or transportation company, through whose negligence the loss, damage, or injury may be sustained."

Whilst this statute was in force the defendants in error shipped from Stoutsville in the state of Missouri, on the line of the Missouri, Kansas, & Texas Railway, to Chicago, Illinois, which was beyond the line of that road, ninety-nine head of cattle. At the time of the shipment a bill of lading was delivered to the shippers. The portions of the contract pertinent to the questions here arising for consideration are as follows:

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"13th. And it is further stipulated and agreed between the parties hereto, that in case the live stock mentioned herein is to be transported over the road or roads of any other railroad company, the said party of the first part shall be released from liability of every kind after said live stock shall have left its road, and the party of the second part *hereby so expressly stipulates and agrees,[583] the understanding of both parties hereto that the party to the first part shall not be held or deemed liable for anything beyond the line of the Missouri, Kansas, & Texas Railway, excepting to protect the through rate of freight named herein."

When this bill of lading was executed an ancillary agreement was indorsed thereon, as follows:

This agreement made between George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas, & Texas Railway, parties of the first part, and M. B. Smizer, party of the second part, witnesseth that whereas the receivers of the Missouri, Kansas, & Texas "We, the undersigned persons in charge of Railway transport the live stock as per above the live stock mentioned in the within conrules and regulations, and which are hereby tract, in consideration of the free pass furmade a part of this contract, by mutual nished us by the Missouri, Kansas, & Texas agreement between the parties hereto; now, Railway, Geo. A. Eddy, and H. C. Cross, retherefore, for the consideration and mutual ceivers, and of the other covenants and covenants and conditions herein contained, agreements contained in said contract, insaid party of the first part is to transport cluding rules and regulations at the head for the second party the live stock described thereof and those printed on the back therebelow, and the parties in charge thereof, as of, all of which for the consideration aforehereinafter provided, namely: six cars said said are hereby accepted by us and made a to contain 95 head of cattle m. or 1. o. r. from part of this contract, and of the terms and con582] Stoutsville *station, Missouri, to Chicago, Il-ditions of which we hereby agree to observe linois, station, consigned to Brown Bros. & Smith, care Union Stock Yards at Chicago, Illinois, at the through rate of 172 c. per hundred pounds, from Stoutsville, Missouri, to Chicago, Illinois, subject to minimum

and be severally bound by, do hereby express-
ly agree that during the time we
are in
charge of said stock, and while we are on our
return passage, we shall be deemed employees
of said receivers of the Missouri, Kansas. &

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The cattle were transported over the line of the Missouri, Kansas, & Texas Railway to Hannibal, Missouri, and from that point the cars in which they were contained passed to the line of the Wabash Railway destined for Chicago. At or near Chicago an unreasonable delay was occasioned in the transportation of the cattle by the negligence of employees of the Wabash Railway, resulting in damage, for which the shippers subsequently brought an action against the receivers of the Missouri, Kansas, & Texas Railway to [584]recover for the breach of the contract of ship ment. Judgment having been entered upon the verdict of a jury in favor of the plaintiffs, an appeal was prosecuted by the receivers to the supreme court of the state, and was heard in division No. 2. There was a judgment reversing the lower court, and a motion for a rehearing was denied. Between the time of the decision of the supreme court and the overruling of a motion for a rehearing both the receivers had died, and the railway company has resumed possession of its road. This fact having been called to the attention of the supreme court, the railway company was substituted as appellant instead of the receivers, and a rehearing was ordered. The case was transferred to the court in banc, and was argued before that tribunal. Thereafter a decision was rendered affirming the judgment of the trial court, and motion for a rehearing was denied. 133 Mo. 59 [35 L. R. A. 110]. The case was then brought by writ of error to this court.

By the assignments of error it is asserted, and in the argument at bar it has been strenuously urged, that the Missouri statute above quoted is in conflict with the Constitution of the United States, because it is a regulation of commerce between the states, and that the supreme court of Missouri hence erred in giving effect to the statute in the decision by it rendered. The statute as interpreted by the supreme court is asserted to operate to deprive the railway of the power of making a through shipment of interstate commerce business over connecting lines, without becoming liable for the negligence of the connecting carriers. In other words, the argument is that the effect of the Missouri statute, as interpreted by the highest court of that state, is to deprive a railway company, transacting the business of interstate commers of all power to liability to it and, hen it, if inter


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along the line, even although such lines are situated beyond the state in which the contract was made or the business originated. This, it is insisted, is a direct *burden im-[585] posed by the state upon interstate commerce, since it forbids a carrier from engaging in that commerce, unless it subjects itself to a liability for the faults of others, against which it cannot guard and for which it was not previously liable, and, moreover, by necessary effect, punishes the carrier for issuing a through bill of lading for interstate commerce, thereby tending to discourage the through transportation of merchandise from state to state, and having a direct and inevi table tendency to defeat the portion of the provisions of the sixth section of the Act to Regulate Commerce, as amended March 2, 1889 (25 Stat. at L. 855, chap. 382), referring to the subject of joint rates of tariffs over continuous roads of different carriers, and the seventh section of the original act, approved February 4, 1887 (24 Stat. at L. 382), which was designed to cause the carriage of freight to be continuous from the place of shipment to the place of destination.

The contention advanced in these several propositions is, however, without foundation, from the fact that it proceeds upon an erroneous assumption of the purport of the Missouri statute in question, since the supreme court of Missouri, in applying that statute in the case before us, has, in the most positive terms, declared that it was not intended to and did not prevent a carrier engaged in interstate commerce traffic limiting his liability to his own line, and that far from doing this the statute left the carrier the amplest power to make such limitation in receiving goods for interstate carriage and in issuing a through bill of lading therefor. In commenting on the statute the court said:

"The provision of the statute is that 'wherever any property is received by a common carrier to be transferred from one place to another.' This language does not restrict, but rather recognizes, the right of the carrier to limit its contract of carriage to the end of its own route, and there deliver the property to the connecting carrier.

"There can be no doubt, then, that under the statute, as well as under the English law, the carrier can, by contract, limit its duty and obligation to carriage over its own route."

Again, in summing up its conclusions, the court said:

*"We are unable to see, as contended by de- 586] fendant, that the construction we give this statute makes it repugnant to the provisions of the Constitution of the United States, which gives to Congress alone the power to regulate commerce among the states.

"The act in no way operates as a regulation of trade and business among the states. No burden or restriction on transportation is imposed. Carriers are left free to make ir own contracts in regard to compensa for their services for transportation bestates, subject to congressional

" now relied on then is, that

although the supreme court of the state of Missouri has interpreted the statute of that state as not depriving a carrier of power, on receiving an interstate shipment, to limit its liability to its own line, that this court should disregard the interpretation given to the state statute by the court of last resort of the state, and hold that the statute means the very contrary of its import, as declared by the supreme court of the state, and upon such construction decide that the state law is repugnant to the Constitution of the United States. But the elementary rule is that this court accepts the interpretation of the statute of a state affixed to it by the court of last resort thereof. Sioux City Trust Company v. Trust Company, 172 U. S. 642 [probably intended for Sioux City Terminal & Warehouse Co. v. Trust Co. of N. A. 173 U. 8. 99, ante, 628], and authorities there cited. It is urged, however, that even although it be conceded that the supreme court of Missouri has interpreted the statute in question, in an abstract sense, as not depriving a railway company of the power to limit its liability to its own line when receiving goods for interstate shipment, the court has nevertheless given the statute practical enforcement as if it meant exactly the contrary of the interpretation affixed to it. In other words, the proposition is, although the supreme court of Missouri has declared that the statute did not deprive a carrier of its right to limit its liability to its own line, yet it has, as a necessary consequence of its application of the statute to the bill of lading in controversy in this cause, given to the statute the very meaning which it expressly declared it [587]*had not. An examination, however, of the opinion of the supreme court of Missouri demonstrates that it is not justly susceptible of the construction thus placed upon it. Analysing the opinion of the court, it results that the court decided that whilst the statute left a railway company ample power to restrict its liability by contract, both as to carriage and as to liability for negligence, to its own line, the purpose embodied in the statute was to regulate the form in which the contract should be expressed, so as to require the carrier to embody the limitation directly and in unambiguous terms in the portion of the agreement reciting the contract to transport, and not to import or imply such limitation by way of exception or statements of conditions and qualifications, requiring on the part of the shipper a critical comparison of clauses of the contract, in order to reach a proper understanding of its meaning. That is to say, that the restraint imposed by the statute was not a curtailment of the power to limit liability to the line of the carrier accepting the freight, but a regulation of the form in which the contract having that object in view should be drawn.

Considering the statute as thus interpreted by the supreme court of the state of Missouri, it cannot be held to be repugnant to the Constitution of the United States. The subject of the power of the states to legislate as to the mere form of contracts for interstate commerce carriage was fully considered in Richmond & Alleghany Railroad

Co. v. R. A. Patterson Tobacco Co. 169 U. S. 311 [42: 759]. In that case the court said (p. 314 [42: 761]) :

"The distinction between a law which forbids a contract to be made and one which simply requires the contract when made to be embodied in a particular form, is as obvious as is the difference between the sum of the obligation of a contract and the mere instrument by which their existence may be manifested. The contract is the concrete result of the meeting of the minds of the contracting parties. The evidence thereof is but the instrument by which the fact that the will of the parties did meet is shown.

"Of course, in a latitudinarian sense any restriction as to the evidence of a contract, re-[588] lating to interstate commerce, may be said to be a limitation on the contract itself. But this remote effect, resulting from the lawful exercise by a state of its power to determine the form in which contracts may be proved, does not amount to a regulation of interstate commerce. The principle on this subject has been often stated by this court, and, indeed, has been quite recently so fully reviewed and applied that further elaboration becomes unnecessary."

But it is pressed that, conceding the stat ute to have the purport given it by the Missouri court, nevertheless it does not come within the rule announced in the case just referred to, because the requirement of the Missouri statute, as interpreted, is so unreasonable as to amount in substance to a denial of the right of a carrier to confine by contract his duty of carriage and his liability for negligence to his own line. If the regulation of the statute be equivalent to a denial of the right to so limit, this court, it is asserted, must consider its substantial results, and not its mere theoretical significance. This contention, however, is also without a solid basis to rest upon. The requirement as to form held to be valid in Richmond & Alleghany Railroad Co. v. R. A. Patterson Tobacco Co., supra, was that every contract confining the liability upon an interstate shipment to the line of the receiv ing carrier should be signed by the shipper or be invalid. The manifest intent of such a regulation was to protect the shipper, by having it clearly manifested by his signature that his attention had been directed to the contract limitation of liability, so that no question might arise of inadvertence on his part in delivering the merchandise and accepting the contract for its carriage, which is usually prepared by the railroad company receiving goods for transportation. Whilst differing in form of requirement, the exaction that the carrier, in unambiguous terms, in the portion of the contract acknowledging the receipt of the goods and expressing the obligation to transport should state the limitation of his obligation as a carrier to his own line, but effectuates the purpose designed by the Virginia statute, which was upheld in the Patterson Case.

If the bill of lading in the case before us did not contain a positive statement of an[589] obligation by the receiving carrier to trans

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