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Goods coming into that section from the Grand Trunk Railroad to be carried over the road of the Michigan Central Company, after being unloaded were deposited by the employees of the latter company in a certain place in the Grand Trunk section, from which they were loaded into the cars of the Michigan Central Company by its own employees, whenever that company was ready to receive them; and after being so placed the employees of the Grand Trunk Company did not further handle such goods.

into that section was handled exclusively by | party and received by the other for transpor-
the employees of the Michigan Central Com- tation, the deposit being accessory merely to
pany, and the Grand Trunk Company paid such transportation. 3. No further orders
that company a fixed compensation per hun- or directions from the Grand Trunk Com-
dred weight for such work as well as for the pany were expected by the receiving party.
use of its section.
Except for the occurrence of the fire, the
goods would have been loaded into the cars
of the Michigan Central Company, and for-
warded, without further action of the Grand
Trunk Company. 4. Under
the arrange-
ment between the parties, the presence of the
goods in the precise locality agreed upon, and
the marks upon them, 'P. & F., St. Louis,'
were sufficient notice that they were there for
transportation over the Michigan road to-
wards the city of St. Louis; and such was
the understanding of both parties." Refer-
ring to the section of the freight_building
specially used by the Grand Trunk Company,
the court said: "It was a portion of the[358]
freight house of the Michigan Company, in
which a precise spot was selected or set
apart, where the defendant might deposit
goods brought on its road and intended for
transportation over the Michigan road, and
which, by usage and practice and the expec-
tation of the parties, were then under the
control of the Michigan Company, and to be
loaded on to its cars at its convenience, with-
out further orders from the defendant."

Whenever the agent of the Michigan Central Company saw any goods deposited in the section of the freight building used by the Grand Trunk Company and which were to be carried over the line of the former company, he would call on the agent of the latter company in the building, and from the way bill exhibited by the agent of the Grand Trunk Company take a list of such goods, and would then for the first time learn their place of destination, together with the amount of freight charges due thereon. From the information thus obtained a way bill would be made out by the Michigan Central Company for the transportation of the goods over its line of railway, and not before.

The goods referred to in the Pratt Case were taken from the Grand Trunk cars on the 17th day of October, 1865, and deposited in the apartment of the freight building used by the Grand Trunk Company in the place assigned for goods so destined. 1357 At the time the goods were forwarded from Montreal the way bill in accordance with usage in such cases was made out in duplicate, on which were entered a list of the goods, the names of the consignees, the places to which they were consigned, and the charges against them from Liverpool to Detroit. The conductor having charge of the train containing the goods would take one of these way bills, and on arriving at Detroit would deliver it to the checking clerk of the Grand Trunk Company, "from which said clerk checked said goods from the cars into said section." The other copy would be forwarded to the agent of the Grand Trunk Company at Detroit. "It was the practice of the Michigan Central Railroad Company, before forwarding such goods, to take from said way bill in the custody of said checking clerk, in the manner aforesaid, the place of destination and a list of said goods, and the amount of accumulated charges, and to collect the same, together with its own charges, of the connecting carrier."

This court, in view of these facts, said: "We are all of the opinion that these acts constituted a complete delivery of the goods to the Michigan Central Company, by which the liability of the Grand Trunk Company was terminated. 1. They were placed within the control of the agents of the Michigan Company. 2. They were deposited by one

We do not think that the judgment in
Pratt v. Railway Company controls the de-
termination of the present case.
In many
important particulars the two cases are ma-
terially different. In the Pratt Case the
court proceeded upon the ground that the
goods were deposited in a section of a freight
building set apart by the connecting carrier,
the owner of the building, for goods coming
over the line of the first carrier to be trans-
ported in the cars of the connecting carrier
to the place to which they were consigned,
the goods having been unloaded by the em-
ployees of the connecting carrier and by
them deposited in that section, to be put by
such employees into the cars of that carrier
at its convenience. It was a case in which the
goods passed under the complete control and
supervision and into the actual custody of
the connecting carrier from the moment they
were deposited in the section set apart for
them.

In the case at bar, the facts plainly indi-
cate that although the goods had been placed
by the first carrier upon the wharf, and al-
though that was the place at which the
steamship company was to receive or usually
received goods from the railway company
for further transportation, they were not in
the actual possession or under the actual
control of the connecting carrier at the time
of the fire. The connecting carrier had not
given a mate's receipt for the cotton or as-
sumed control of it. True, it had received
notice that the goods were on the wharf and
could be taken into possession, but such no-
tice did not put the cotton into the actual
custody of the connecting carrier. The op-
portunity given it to take possession or its
mere readiness to take possession was not
under the contract equivalent to placing the
cotton in the actual custody of the steam-[359]
ship line. The undertaking of the railway

company was to transport safely and deliver | the hands of the carrier itself or its servant to the next connecting carrier. But its fur- or some person authorized by the carrier to ther express agreement was, in substance, receive it, and that if it was merely deposited that if any carrier incurred liability to the in the yard of an inn, or upon a wharf to shipper in respect of the goods, that carrier which the carrier resorts, or in the carrier's alone was to be liable who, at the time the cart, vessel, or carriage, without the knowlcotton was damaged or lost, had it in actual edge and acceptance of the carrier, its servcustody. In other words, the delivery to the ants or agents, there would be no sufficient connecting carrier which would, as between delivery to charge the carrier, the court the first carrier and the shipper, terminate said: "But this rule is subject to any conthe liability of such carrier, must have been ventional arrangement between the parties a delivery that put the cotton into the ac- in regard to the mode of delivery, and pretual, not constructive, custody of the con- vails only where there is no such arrangenecting carrier. To hold otherwise is to ment. It is competent for them to make eliminate from the contract the clause re- such stipulations on the subject as they see lating to actual custody. The entire argu- fit; and when made they, and not the general ment of the learned counsel for the railway law, are to govern. If, therefore, they agree company in effect assumes that the contract that the property may be deposited for transmeans no more than it would mean if that portation at any particular place without any clause were omitted. But the court cannot express notice to the carrier, such deposit hold that that clause is meaningless, or that merely would be a sufficient delivery. So is it was inserted in the contract in ignorance in this case the defendants had not agreed to of the meaning of the words "actual custo- dispense with the express notice of the dedy." Nor can it be supposed that the par- livery of the property on their dock, actual ties understood the contract to mean that notice thereof to them would have been necesthe connecting carrier was to be deemed to sary; but if there was such an agreement, have actual custody from the moment it the deposit of it there merely would amount could have taken actual custody if it had to constructive notice to the defendants, and seen proper to do so. So far as the shipper constitute an acceptance of it by them. And was concerned, the actual custody of the first we have no doubt that the proof by the plaincarrier could not cease until it was in fact tiff of a constant and habitual practice and displaced by the actual custody of the con- usage of the *defendants to receive property[361) necting carrier. It may be that the railway at their dock for transportation in the mancompany has good ground for saying that, as ner in which it was deposited by the plainbetween it and the connecting carrier, une tiff, and without any special notice of such latter was bound to take actual custody deposit, was competent, and in this case sufwhenever the railway company was ready to ficient, to show a public offer by the defendsurrender possession, and thereby relieve the ants to receive property for that purpose and latter from possible liability to the shipper in that mode; and that the delivery of it in the event of the loss of the cotton while in there accordingly by the plaintiff in pursuits custody. That is a matter between the ance of such offer should be deemed a comtwo carriers, touching which we express no pliance with it on his part, and so to conopinion. But we adjudge that the shipper stitute an agreement between the parties by cannot be compelled, when seeking damages the terms of which the property, if so defor the value of his cotton destroyed by fire posited, should be considered as delivered to in the course of its transportation, to look to the defendants without any other notice. any carrier except the one who had actual Such practice and usage were tantamount to custody of it at the time of the fire. One of an open declaration, a public advertisement the conditions imposed upon him by the con- by the defendants, that such a delivery tract was that if any carrier became liable to should of itself be deemed an acceptance of him he should have no remedy except against it by them for the purpose of transportation; [360]the one having such *actual custody. and to permit them to set up against those That remedy should not be taken from him who had been thereby induced to omit it, the by a construction of the contract inconsis- formality of an express notice, which had tent with the ordinary meaning of the words thus been waived, would be sanctioning the used. greatest injustice and the most palpable fraud.”

The two cases in the supreme court of Connecticut which were cited in Pratt v. Grand Trunk Railway Co. undoubtedly sustain the principles announced in that case, but they do not militate against the views we have expressed in this case.

Converse v. Norwich & New York Transportation Co. 3 Conn. 166, 181, involved the question whether certain goods had been delivered to the connecting carrier prior to their destruction by fire. The wharf and Merriam v. Hartford & New Haven Rail- depot building in which the goods were deroad Co. 20 Conn. 354, 360, was an action on posited by the first carrier were owned by the case for negligence on the part of a rail- the connecting carrier, and the first carrier road company in the transportation and de- paid an annual rental for its use in its busilivery of certain goods, and in which it was ness. The court, among other things, said: a question whether the goods had been de- "We have no difficulty in determining, indeed livered to the company before their destruc- we must hold, that there was a mutual tion. After stating the general rule to be agreement, or tacit understanding equivathat, in order to charge a common carrier for lent to such an agreement, that the transthe loss of property delivered to it for transportation company should place the through portation, the property must be delivered into freight at that precise spot, and that the

act evidencing its intention to renounce the one capacity and assume the other. Although it had requested the steamship line to remove the cotton, it had not specified any particular time within which compliance was insisted on, and had not given notice that the cotton would be kept or stored at the risk of the steamship line upon failure to comply with the request. The request to come and remove it 'as soon as practicable' was, in effect, one to remove it at the earliest convenience of the steamship line. There is nothing in the case to indicate that the defendant had not acquiesced in the delay which intervened between the request and the fire." 51 U. S. App. 676, 686.

Northern road should take it from thence at | become a warehouseman. It had done no a time convenient to them. The construction of the depot and the uniform usage are conclusive of it. The depot was constructed with a platform by the side of the track for the reception of goods to be taken from or put into the cars; and on that platform the railroad company in the first and every instance of delivery by them placed their freight, and the transportation company at their convenience took it away and carried it on board their boat. And so the transpor[362]tation *company in like manner in the first and every instance placed there the freight for the Northern road; and they at their convenience put it in their cars and took it away. And the usage was precisely the same with the Worcester road. Upon this wharf and into the inclosure the Northern road laid their track for the delivery and reception of freight to and from the transportation company. Both parties then contemplated a delivery and reception on this wharf and in this inclosure, and obviously in the precise manner actually pursued.

. It is clear, then, that both the transportation company and the Northern road contemplated that a placing of freight by either intended for the other upon that platform was all that either was to do by way of delivery of their freight to each other."

It is to be observed that neither in the Pratt Case nor in the Converse and Merriam Cases was there any clause in the contract between the parties to the effect that the shipper, in enforcing his claim for liability, should look alone to the carrier who had the actual custody of the goods at the time they were lost or destroyed. It is the clause of that character in the bill of lading now in suit which makes the judgments in the Pratt, Converse and Merriam Cases inapplicable to the present case.

Under the views expressed in this opinion, it is unnecessary to enter upon a review of the numerous cases cited by counsel for the railway company in their able and elaborate brief to support the different propositions discussed by them.

We are of opinion that the circuit court did not err in directing a verdict for the plaintiff, and the judgment is affirmed.

UNITED STATES, Piff. in Err.,

v.

JESSE JOHNSON.

(See S. C. Reporter's ed. 363-381.)

Special compensation of district attorney.

Services of a United States district attorney in instituting and conducting proceedings on be half of the government for the condemnation of land for public purposes, within his district, are such as the law requires the district attorney to render, and consequently he can receive no special compensation therefor, as such proceedings constitute a civil action within U. S. Rev. Stat. § 771, and are the business of the United States within § 824.

A further contention of the defendant is
that at the time of the fire it held the goods,
if at all, only as a warehouseman and not as
a common carrier, and that the circuit court
erred in not so instructing the jury. We
cannot assent to this view. As the goods
had not at the time of the fire passed into Submitted
the actual custody of the steamship com-
pany, and as the contract expressly declared

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CERTIFICATE from the Taited States

that if any carrier was liable for their de-Nircuit Court of Appeals for the Second

Circuit certifying to this court certain questions of law upon which the Circuit Court of Appeals desired instructions in an action brought by Jesse Johnson, plaintiff, in the Circuit Court of the United States for the Eastern District of New York, against the United States for compensation for services rendered by the plaintiff as United States district attorney, for which he claimed com

struction that one alone should be liable in whose actual custody the goods were when destroyed, the defendant could not escape responsibility by showing that the connecting carrier could by reasonable diligence have taken actual custody prior to the fire. In other words, it could not convert itself into a warehouseman by proving that it had, before the fire, tendered the goods to the connecting carrier, and that the latter neglected, although [363] without reasonable excuse, to take them *in-pensation beyond the salary and emoluments to its actual custody. Even if this were not so, the suggestion that the railway company had become a warehouseman before the fire occurred can be disposed of on the grounds stated by the circuit court of appeals. Speaking by Judge Wallace, that court said: "There is no room for the contention that the defendant had ceased to be a carrier and

attached to the said office in which suit
a judgment was rendered in his favor against
the government for the sum of $6,513.95.
Question as to plaintiff's right to extra com-
pensation answered in the negative.

The facts are stated in the opinion.
Mr. James E. Boyd, Assistant Attorney
General, for the plaintiff in error.

Mr. Jesse Johnson, defendant in error, and all civil actions in which the United in proper person.

[864] *Mr. Justice Harlan delivered the opinion of the court:

In the circuit court of the United States for the eastern district of New York a judgment was rendered against the government and in favor of the defendant in error, Johnson, for the sum of $6,513.95. Of that amount $6,500 represented the value of legal services rendered for the United States by Johnson while he held the office of district attorney for that district, in proceedings in that court for the condemnation of certain lands for public purposes.

The case having been carried by writ of error to the circuit court of appeals, certain questions of law arose as to which instructions are desired from this court, the controlling question being whether Johnson was entitled, for the services rendered, to any compensation beyond the salary and emoluments attached to his office.

States are concerned, and, unless otherwise
instructed by the Secretary of the Treasury,
to appear in behalf of the defendants in all
suits or proceedings pending in his district
against collectors, or other officers of the rev-
enue, for any act done by them, or for the re-
covery of any money exacted by or paid to
such officers and by them paid into the Treas-
ury."

§ 823. The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several states and territories, except in cases otherwise expressly provided by law. But nothing herein shall be construed to prohibit attorneys, solicitors, *and[366] proctors from charging to and receiving from their clients, other than the government, such reasonable compensation for their services, in addition to the taxable costs, as may The sections of the Revised Statutes (Title be in accordance with general usage in their 13, chap. 16) upon the construction of which respective states, or may be agreed upon bethe answers to the questions propounded tween the parties. more or less depend are the following: "§ 824. For examination by a dis"§ 355. No public money shall be expend-trict attorney, before a judge or commissioned upon any site or land purchased by the er, of persons charged with crime, five dolUnited States for the purpose of erecting lars a day for the time necessarily employed. thereon any armory, arsenal, fort, fortifica- For each day of his necessary attendance in tion navy-yard, custom-house, light-house, a court of the United States on the business or other public building, of any kind what of the United States, when the court is held ever, until the written opinion of the Attor- at the place of his abode, five dollars; and ney General shall be had in favor of the va- for his attendance when the court is held lidity of the title, nor until the consent of elsewhere, five dollars for each day of the the legislature of the state in which the land term. or site may be, to such purchase, has been given. The district attorneys of the United [365]Štates, upon the application of the Attorney General, shall furnish any assistance or infc:mation in their power in relation to the titles of the public property lying within their respective districts. And the Secretaries of the Departments, upon the application of the Attorney General, shall procure any additional evidence of title which may be deemed necessary and which may not be in possession of the officers of the government, and the expense of procuring it shall be paid out of the appropriations made for the contingencies of the Departments respectively."

"§ 767. There shall be appointed in each district, except in the middle district of Alabama, and the northern district of Georgia, and the western district of South Carolina, a person learned in the law; to act as attorney for the United States in such district."

"S 770. The district attorney for the southern district of New York is entitled to receive quarterly for all his services a salary at the rate of $6,000 a year. For extra services the district attorney for the district of California is entitled to receive a salary at the rate of $500 a year, and the district attorneys for all other districts at the rate of $200 a year.

"S 771. It shall be the duty of every district attorney to prosecute in his district all delinquents for crimes and offenses cognizable under the authority of the United States,

"§ 825. There shall be taxed and paid to every district attorney two per centum upon all moneys collected or realized in any suit or proceeding arising under the revenue laws, and conducted by him, in which the United States is a party, which shall be in lieu of all costs and fees in such proceeding."

"§ 827. When a district attorney appears by deriction of the Secretary or Solicitor of the Treasury, on behalf of any officer of the revenue in any suit against such officer, for any act done by him, or for the recovery of any money received by him and paid into the Treasury in the performance of his official duty, he shall receive such compensation as may be certified to be proper by the count in which the suit is brought, and approved by the Secretary of the Treasury."

"§ 833. Every district attorney, clerk of a district court, clerk of a circuit court, and marshal, shall, on the first days of January and July, in each year, or within thirty days thereafter, make to the Attorney General, in such form as he may prescribe, a written return for the half year ending on said days, respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office including necessary clerk hire, together with the vouchers for the payment of the same for such last half year. He shall state separately in such returns the fees and emoluments received or payable under the bankrupt act; and every marshal shall state separately therein the fees and emoluments *re-[367]

ceived or payable for services rendered by himself personally, those received or payable for services rendered by each of his deputies, naming him, and the proportion of such fees and emoluments which, by the terms of his service, each deputy is to receive. Said returns shall be verified by the oath of the officer making them.

"S 834. The preceding section shall not apply to the fees and compensation allowed to district attorneys by sections eight hundred and twenty-five and eight hundred and twenty-seven. All other fees, charges, and emoluments to which a district attorney or a marshal may be entitled by reason of the discharge of the duties of his office, as now or hereafter prescribed by law, or in any case in which the United States will be bound by the judgment rendered therein, whether prescribed by statute or allowed by a court or any judge thereof, shall be included in the semi-annual return required of said officers by the preceding section.

"§ 835. No district attorney shall be allowed by the Attorney General to retain of the fees and emoluments of his office which he is required to include in his semi-annual return, for his personal compensation, over and above the necessary expenses of his office including necessary clerk hire, to be audited and allowed by the proper accounting officers of the Treasury Department, a sum exceeding six thousand dollars a year, or exceeding that rate for any time less than a year."

"§ 844. Every district attorney, clerk, and marshal, shall at the time of making his half-yearly return to the Attorney General, pay into the Treasury, or deposit to the credit of the Treasurer, as he may be directed by the Attorney General, any surplus of the fees and emoluments of his office, which said return shows to exist over and above the compensation and allowances authorized by law to be retained by him."

"§ 1764. No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other Department; and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law.

[368] *" 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor expressly states that it is for such additional pay, extra allowance, or compensation."

By section 3 of the act of June 20th, 1874 (18 Stat. at L. 85, 109, chap. 328), it was provided that "no civil officer of the government shall hereafter receive any compensation or perquisites, directly or indirectly, from the Treasury or property of the United States beyond his salary or compensation allowed by law: Provided, That this shall not be con

strued to prevent the employment and payment, by the Department of Justice, of district attorneys as now allowed by law for the performance of services not covered by their sulary or fees."

The facts to be considered in connection with these statutory provisions are set forth in a statement accompanying the certificate of questions. They may be thus marized:

sum

By the fortification act of August 18th, 1830 (26 Stat. at L. 315, 316, chap. 797), appropriations were made for gun and mortar batteries, as follows: "For construction of gun and mortar batteries for defense of Boston harbor, two hundred and thirty-five thousand dollars; New York, seven hundred and twenty-six thousand dollars; San Francisco, two hundred and sixty thousand dollars."

The same act contained the following provision: "For the procurement of land or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications and coast defenses, five hundred thousand dollars, or so much thereof as may be necessary, and hereafter the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, or right pertain ing thereto, needed for the site, location, construction, or prosecution of works for fortifications and coast defenses, such proceedings to be prosecuted in accordance with the[369] laws relating to suits for the condemnation of property of the states wherein the proceedings may be instituted: Provided, That when the owner of such land or rights pertaining thereto shall fix a price for the same, which in the opinion of the Secretary of War shall be reasonable, he may purchase the same at such price without further delay: Provided further, That the Secretary of War is hereby authorized to accept on behalf of the United States donations of land or rights pertaining thereto required for the abovementioned purposes: And provided further, That nothing herein contained shall be construed to authorize an expenditure, or to involve the government in any contracts for the future payment of money, in excess of the sums appropriated therefor."

By the subsequent act of July 23d, 1892 (27 Stat. at L. 257, 258, chap. 233), five hundred thousand dollars, or so much thereof as was necessary, was appropriated "for the procurement of land or right pertaining thereto, needed for the site, location, construction, or prosecution of work for fortifications and coast defenses."

In the year 1891, at the special written request of the Secretary of War, Johnson, being then United States district attorney for the eastern district of New York, was instructed by the Attorney General of the United States to institute proceedings on behalf of the government of the United States for the condemnation for a mortar battery of certain lands on Staten Island, New York, adjacent to Fort Wadsworth in that district. With such instructions the Attorney Gen

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