pany. furnish to plaintiff on the 2d day of June, | lin, as governor of the territory of Arizona, 1896, at 8 A. M., ten able-bodied male con- that the said pretended contract mentioned victs out of the territorial prison at Yuma, in the application herein was and is of no properly guarded, on the outside of the gate valid force and effect, and further advised of the territorial prison; that on the next and informed in substance and to the effect day Nugent served a written notice on the that said contract was not of any legal force plaintiff, whereby he peremptorily declined or binding effect upon said territory or said to furnish the convict labor at such time board of control, and, among other things and place, or at any time and place; and that concerning the same, the said Honorable B. the plaintiff had not a plain, speedy, or ade- J. Franklin, acting as such governor, auquate remedy in the ordinary course of law. thorized and directed this defendant in subThe complaint was supported by the affi- stance and to the effect that in the event that davit of the president of the plaintiff com- the said State of Arizona Improvement Company should, by its officers or agents, make a demand upon this defendant to do or perform anything under the provisions of said contract, and especially if such demand should be made for the delivery of any prisoners confined in or inmates of said penitentiary to the said company, its officers or agents, at the gate of said prison or elsewhere, that this defendant, acting as such superintendent, should politely, but firmly, refuse such request or any request made or to be made under the provisions of said pretended contract; that acting under the advice and information given by the Honorable B. J. Franklin, governor of this territory, and of the direction of the head of the executive department of this territory, this de fendant alleges that he made the refusal complained of in the application herein, and not otherwise. Respondent further avers and gives the court to know that the State of Arizona Improvement Company has not, before the institution of these proceedings, executed and filed a good and sufficient bond enforceable in a court of law in any of the courts of this territory for the faithful performance of said contract, as required by said pretended board of control act." The relief asked was that a writ of man[844]damus issue, directed to Nugent, superintendent of the territorial prison, directing and commanding him to furnish to the plaintiff ten able-bodied male convicts out of the territorial prison at Yuma, on the 2d day of June, 1896, on the outside of the prison gate at Yuma, properly guarded; and that plaintiff have such other and further relief as to the court seemed meet and just. An alternative writ of mandamus was is sued, and Nugent, as superintendent of the prison, excepted to the sufficiency of the complaint and demurred thereto upon these grounds: 1. That the complaint did not state facts sufficient to authorize a writ of mandamus. 2. That the plaintiff sought to compel the performance of an act by the respondent as superintendent of the territorial prison, which the law did not specially enjoin upon him as a duty resulting from his office. 3. That the petition sought to compel the performance of a contract made by others and not by respondent. 4. That the alleged contract was void because authorized only by a pretended law which was void. Nugent also filed an answer alleging, among other things, that there was a want The case was heard in the district court on of proper parties defendant; that the terri- the complaint and the demurrer and answer. tory had no power to hire out the convicts The demurrer of the defendant was overconfined in the territorial prison who had not ruled, and the contracts set forth in the combeen sentenced to punishment with hard la-plaint were the only evidence adduced at the bor, nor to authorize the convicts to be taken out and away from the territorial prison, where punishment and sentence was by confinement in such prison; that the board of control had no power to make the contract sought to be enforced; that the contract was itself without consideration and in violation of the act of March 8th, 1895, in that it was for a period of over ten years: that the contract took the entire convict labor for the period just named in violation of the provisions of the act providing that said labor should not be leased out when it was needed to work on the buildings and premises of the territory; and that the contract was against public policy in authorizing all the prisoners to be taken from the prison and to remain away from it in many cases for the entire period of their sentence. trial. The defendant having declined to The answer also averred "that as the duly appointed, qualified, and acting superinten[345]dent of the territorial prison at Yuma, Arizona, previous to the service of the alternative writ herein, this defendant was advised and informed by the Honorable B. J. Frank A new trial having been refused, the case was carried to the supreme court of the territory, where the judgment of the district court was affirmed. We are of opinion that the supreme court of the territory erred in affirming the judg ment of the district court awarding a writ of mandamus against the defendant Nugent. The statute under the authority of which the board of control made the contract referred to in the complaint expressly required a good and sufficient bond to be given by the person or persons leasing the labor of inmates of the territorial prison for the faithful performance of such contract, which bond was to be approved by the board. The complaint asking for a mandamus against the superintendent of the prison did not distinctly allege the execution of such bond. But the answer of Nugent alleged that the | TEXAS & PACIFIC RAILWAY COMPANY[348] Plff. in Err., v. filed a good and sufficient bond enforceable JOHN HENRY CLAYTON, Nicholas Rob in a court of law in any court of the territory for the faithful performance of its contract, as required by the act of March 8th, 1895. That act, it is true, did not in terms require the execution and delivery of a bond prior to or contemporaneously with the making of a contract with the board of control. But it is clear that the board could not dispense with the bond, and that no contract made by them leasing the labor of the convicts could become binding upon the territory until a bond such as the statute requires was executed by the lessee and approved by the board. The recital in the agreement of December 2d, 1896, that the lessee had submitted, and that the board had approved, a good and sufficient bond for the faithful performance of that agreement, may have been made in the expectation that such a bond would be executed before the agreement became effective as between the parties. But as the case was heard upon the pleadings, without any evidence except the written agreements between the board of control and the improvement company, the mere recital referred to cannot be taken as sufficient to disprove the averment [347]in answer as to the nonexecution of the required bond. If the plaintiff was entitled to the relief asked by a proceeding against the superintendent, without bringing the members of the board of control before the court, it should have shown by allegation and proof that the required bond had been executed. If no bond was executed as required by the statute, the plaintiff was not in a position to ask relief by mandamus. The superintendent of the prison may not erts, and Charles Anderson Earle. (See S. C. Reporter's ed. 348-363.) Railroad company, when liable for goods de stroyed by fire-when liable as carrier and not as warehouseman. 1. 2. When goods were delivered in Texas to a railroad company to be carried to Liverpool, England, and the bill of lading provided that the carrier alone in whose actual custody the goods should be at the time of their loss should be liable therefor, such railroad company is liable for the destruction of the goods by fire before they had been actually delivered to the next connecting carrier, although they were placed by said company on the wharf, where the steamship line, the next connecting carrier, usually received goods, and notice given to it, but it had not taken actual custody thereof. Under such circumstances the railroad company did not cease to be a carrier and become a warehouseman, although it requested the steamship line to remove the goods, but had not specified any particular time within which compliance was insisted on, or given notice that the goods would be kept or stored at the risk of the steamship line upon failure to comply with the request. [No. 222.] ary 20, 1899. N ERROR to the United States Circuit have been charged by law with knowledge of Argued January 27, 1899. Decided Febru Under the circumstances, it may not be inappropriate to say that in the printed brief of the attorney general of Arizona it is distinctly stated that no bond had ever been executed, and that statement is not disputed in the printed brief subsequently tiled for appellee, nor was it disputed by counsel for appellee in oral argument. Without expressing any opinion in reference to other questions discussed by counsel, some of which are important. the judgment of the Supreme Court of the Territory is for the reasons stated reversed, with directions to remand the case to the district court for such further proceedings as may be consistent with this opinion and with law. It is so ordered. 173 U. S. to review a judgment of that court affirming See same case below, 51 U. S. App. 676. Defendant had fully performed its duty as initial carrier. Pratt v. Grand Trunk R. Co. 95 U. S. 43, 725 49 Am. Rep. 54; Green v. Milwaukee & St. P. R. Co. 38 Iowa, 100; Coyle v. Western R. Corp. 47 Barb. 152; London & L. F. Ins. Co. v. Rome, W. & O. R. Co. 144 N. Y. 200. The rule as to delivery between connecting carriers is the same as between shipper and carrier. Shelbyville R. Co. v. Louisville, C. & L. R. Condon v. Marquette, H. & O. R. Co. 55 Mich. 218, 54 Am. Rep. 367; Whitworth v. Erie R. Co. 87 N. Y. 413; Michigan C. R. Co. v. Mineral Springs Mfg. Co. 16 Wall. 318, 21 L. ed. 297; McHenry v. Philadelphia, W. & B. R. Co. 4 Harr. (Del.) 448; Garside, W. & sey & Trent Nav. Proprs. 4 T. k. 581; Regan v. Grand Trunk R. Co. 61 N. H. 579; Ayres v. Western R. Co. 14 Blatchf. 9; Wood v. Milwaukee & St. P. R. Co. 27 Wis. 541, 9 Am. Rep. 465; Deming v. Norfolk & W. R. Co. 21 Fed. Rep. 25. Mr. Treadwell Cleveland, for defendants in error: The circuit court properly denied the motion for a direction for a verdict in its favor, made by the railroad company, when the plaintiff rested. Dunn v. Durant, 9 Daly, 389; Catlin v. Gunter, 11 N. Y. 373, 62 Am. Dec. 113; Place v. Minster, 65 N. Y. 89; Richards v. Westcott, 2 Bosw. 589; Bonsteel v. Vanderbilt, 21 Barb. 26. There was no constructive delivery of the cotton by the railway company. The relation of that company to the shippers was not that of warehouseman, but that of common carrier. Michigan C. R. Co. v. Mineral Springs Mfg. Co. 10 Wall. 318, 21 L. ed. 297; Goold v. Chapin, 20 N. Y. 259, 75 Am. Dec. 398; Mills v. Michigan C. R. Co. 45 N. Y. 622, 6 Am. Rep. 152; Ladue v. Griffith, 25 N. Y. 364, 82 Am. Dec. 360; Illinois C. R. Co. v. Mitchell, 68 Ill. 471, 18 Am. Rep. 564; Condon v. Marquette, H. & O. R. Co. 55 Mich. 218, 54 Am. Rep. 367; McDonald v. Western R. Corp. 34 N. Y. 497. [849] *Mr. Justice Harlan, delivered the opinion of the court: | and there deliver the same on the payment of the freight; that the defendant failed to keep its agreement and to carry safely 467 of the bales of cotton to Liverpool, and there to deliver the same, although the plaintiffs had duly demanded delivery thereof and had been at all times ready and willing to pay the freight for the carriage; that through its negligence and carelessness and without the fault of the plaintiffs those 467 bales, worth $17,314.43, were on or about November 12th, 1894, wholly destroyed by fire at Westwego, Louisiana, "at which time and place the same were in the possession of the defendant in the course of such carriage and as a common carrier;" and that the defendant has refused upon plaintiffs' demand to pay the value of the cotton so destroyed. The defendant admitted the destruction of the cotton by fire at the time and place named, but made such denial of the material allegations of the complaint as put the plaintiffs on proof of their case. The plaintiffs, having read in evidence the bills of lading and made proof of the value of the cotton as shown by certain stipulations between the parties, rested their case. Thereupon the defendant moved the court to direct the jury to render a verdict in its behalf. That motion was denied with exceptions to the defendant. At the close of all the evidence the jury by direction of the court returned a verdict in favor of the[350] plaintiffs for the sum of $14,068, and judgment for that sum with costs was entered against the defendant company. Upon writ of error to the circuit court of appeals that judgment was affirmed. 51 U. S. App. 676. The action was based upon four bills of lading issued by the railway company. Two of them were dated October 10th, and the others October 15th and October 23d respectively. They are alike in form, and identical in respect of the terms and conditions of the contract. Each one showed a receipt by the railway company of a given number of bales, "in apparent good order and well conditioned, of Castner & Co., for delivery to shippers' order or their assigns, at Liverpool, England, he or they paying freight and charges as per margin;" also, that the cotton received was to be carried "fron Bonham, Texas, to Liverpool, England, route: via New Orleans and Elder, Dempster, & Co. steamship line." This action was brought by the defendants Each bill of lading contained also the folin error, subjects of the Queen of Great Brit-lowing clauses: ain and Ireland, against the Texas & Pacific "The terms and conditions hereof are unRailway Company, a corporation existing derstood and accepted by the owner. under an act of Congress approved March 3d, 1871 (chap. 122, 16 Stat. at L. 573), and engaged in the business of a common carrier of merchandise for hire. Its object was to recover the value of four hundred and sixtyseven bales of cotton destroyed by fire. The complaint alleged that in the month of October, 1894. at Bonham, Texas, the plaintiffs delivered to the defendant railway company 500 bales of cotton, which it agreed to carry safely and securely at a through price or rate from the place of shipment to Liverpool, England, by way of New Orleans "Upon the following terms and conditions, which are fully assented to and accepted by the owner, viz.: "1. That the liability of the Texas & Pacific Railway Company, in respect to said cotton, and under this contract, is limited to its own line of railway, and will cease, and its part of this contract be fully performed upon delivery of said cotton to its next connecting carrier; and in case of any loss, detriment, or damage done to or sustained by said cotton before its arrival and delivery at its final destination, whereby any legal liability is incurred by any carrier, that carrier alone shall be held liable therefor in whose actual custody the cotton shall be at the time of such damage, detriment, or loss. "2. That the rate of freight for transportation of said cotton, specified in the margin hereof, is quoted and guaranteed with the distinct understanding and only on condition that the weight of said cotton is truly and correctly represented and stated; that said rate only includes the charge for transportation, and the specification of said rate shall not be taken as any guide for construction or [851]evidence to extend this contract in other respects, or to bind the Texas & Pacific Railway Company to transport or to become in anywise responsible for said cotton after delivery thereof to its next connecting carrier, but shall only bind said company to protect said rate. "5. It is further agreed that in case said cotton is found at point of delivery to have been injured by any of the excepted clauses specified in this bill of lading, the burden of proof shall be upon the owner of said cotton or claimant to establish that such injury resulted from the fault of the carrier. "6. That the said cotton shall be transported from the port of New Orleans to the port of Liverpool, England, by the Elder, Dempster, & Co. steamship line, with liberty to ship by any other steamship or steamship line; and upon delivery of said cotton to said ocean carrier at the aforesaid port this contract is accomplished, and thereupon and thereafter the said cotton shall be subject to all the terms and conditions expressed in the bills of lading and master's receipt in use by the steamship or steamship company or connecting lines by which said cotton may be transported; and upon delivery of said cotton, at usual place of delivery of the steamship or steamship lines carrying the same, at the port of destination, the responsibility of the carriers shall cease." The facts out of which the case arises are these: The railway company had warehouses and yards in New Orleans where its road terminated. Westwego is a branch station or terminal opposite that city. The company had a wharf with tracks and an office and sheds on it the wharf having been constructed over the Mississippi river so that cars could be run upon the railroad tracks in its rear and unloaded, and so that vessels could come to its front to receive freight placed on it. The cotton in question was unloaded at the wharf at various dates from October 22d to November 4th, 1894, and was burned while on the wharf in the evening of November 12th, 1894. On each of the bills of lading are the following words: "T. & P. contract No. 44." It does not appear that the shippers were informed what were the terms of that contract. [352]*It was in proof, however, that it was in substance a contract with the Elder, Dempster, & Co. steamship line to connect with the Texas & Pacific Railway Company and receive from the latter 20,000 bales of cotton during the months of October, November, and December, 1894, on the conditions specified on the reverse side of the contract. Those conditions do not affect the questions here presented, but it was proved that the railway and the steamship companies agreed that the place of delivery of the cotton under the contract between them should be the wharf at Westwego. The mode in which the railway company and the steamship company transacted business was as follows: Upon the shipment of cotton, bills of lading would be issued in Texas to the shipper. Thereupon the cotton would be loaded in the cars of the railway company and a way bill indicating the number and initial of the car, the number of the bill of lading, the date of shipment, the number of bales of cotton, the consignor, the consignee, the date of the bill of lading, the number of bales forwarded on that particular way bill, the marks of the cotton, the weight, rate, freights, amount prepaid, etc., would be given to the conductor of the train bring. ing the car to Westwego. Upon the receipt of the way bill and car at Westwego, a "skeleton" would be made out by the clerks at that place for the purpose of unloading the car properly. It contained the essential items of information covered by the way bill, and had also the date of the making of the skeleton. When this skeleton had thus been made out and the car had been pushed in on the side track in the rear of the wharf, it would be taken by a clerk known as a "check clerk," and with a gang of laborers, who actually handled the cotton and were employed by the railway company, the car would be opened; and as the cotton was taken from the car bale by bale the marks would be examined to see that they corresponded with the items on the skeleton, and the same were then checked. The cotton thus taken from the car was deposited at a place on the wharf designated by the check clerk, and it would remain there until the steamship company came and took it away. After the checking of the cotton in this way to ascertain that[353] the amounts, marks, and general information of the way bill were correct, the skeleton would be transmitted to the general office of the Texas & Pacific Railway Company in New Orleans, which thereupon would make out what was designated as a "transfer sheet" that contained substantially the information contained in the way bill, and which being at once transmitted to the steamship company or its agents was a notification understood by the steamship company's agents that cotton for their line was on the wharf at Westwego ready for them to come and take away. Upon the receipt of these transfer sheets the steamship company would collate the transfers relating to such cotton as was destined by them for å particular vessel, advise the railway company with the return of the transfers that this cotton would be taken by the vessel named, and would thereupon send the vessel with their stevedores to the wharf at Westwego. The clerk at Westwego would go around the wharf and by the aid of the transfers returned from the steamship agents point out to the master or mate of the ves sel, or the one in charge of the loading, the particular lots of cotton named in the transfers and designated for his vessel, and the stevedores and their helpers would thereupon take the cotton and put it on board the ship. In connection with the loading upon the vessel or after the cotton was pointed out in lots, the master or mate would sign a mate's receipt for this cotton. The stevedores and all men employed in loading the vessel were wholly in the employ of the steamship company. The time of coming to take cotton from the wharf was entirely in the control of the steamship company. They sent for it as soon as they were ready. This was conceded to have been substantially the method of business between the railway company and the steamship company. Counsel for the railway company correctly states that on the morning of the fire, and on other occasions prior thereto both in October and November, the officers of the railway company gave verbal notice to the steamship company that the cotton was upon the wharf [354]ready for the steamship company to take away and made request that the same should be removed; that the attention of the officers of the steamship company was called to the amount of cotton on the wharf which they had contracted to carry, and they were requested to move it at the earliest possible moment and to comply with their contract; and that in reply they said, in substance, that their ships had been delayed, the principal cause being certain labor troubles then existing in New Orleans with employees of the steamship companies, and another cause being the bad weather. It may be taken as established by the evidence that the cotton in question was for some days before the fire in a position on the wharf ready to be taken by the steamship company. So far as the management of the wharf and the protection of the cotton against fire were concerned, the evidence failed to show any negligence on the part of the railway company. meaning of the contract, in the actual custody of the railway company. It will not be disputed that in determining this question regard must be had to all the provisions of the contract. The clause declaring that the railway company should be deemed to have fully performed its part of the contract "upon delivery of said cotton to its next[355] connecting carrier" must be taken with the clause immediately following, which makes that carrier alone liable who had actual custody of it at the time of the loss. The first thought suggested by these clauses, taken together, is that the parties recognized the possibility that it might be often difficult to determine what, as between carriers, in view of their relations to each other, would constitute a sufficient delivery to the connecting carrier. And in order to meet that difficulty the clause relating to actual custody was added, so as to indicate that the delivery intended, so far as liability to the shipper for loss was concerned, was not a constructive one, but such a delivery as involved actual custody of the cotton by the connecting carrier. We do not understand that counsel for the railway company dispute this general view. But they insist that within the meaning of the contract, and under the facts disclosed by the evidence, the steamship company had actual custody of the cotton at the time it was burned. In support of their contention they rely principally upon Pratt v. Grand Trunk Railway Company, 95 U. S. 43, 46 [24: 336, 339], and the cases upon which that case largely rests-Merriam v. Hartford & N. H. Railroad Co. 20 Conn. 354, and Converse v. Norwich & New York Transportation Co. 33 Conn. 166. It is important to understand what were the facts upon which the judgment in Pratt V. Grand Trunk Railway Company was based. According to the report of that case they were these: The Grand Trunk Railway Company, engaged as a carrier in the transportation of property, had received at Montreal to be carried to Detroit certain goods shipped at Liverpool for St. Louis. The goods reached Detroit in the cars of that company on the 17th day of October, 1865, and were destroyed by fire in the night of the succeeding day. The defendant moved for a verdict in its behalf upon two grounds: 1. The evidence showed a delivery of the cotton to the connecting carrier before the fire occurred. 2. The company had no freight room or deIf no delivery took place before the fire, pot at Detroit, but it used there a single secthere had been a sufficient tender of the cot- tion or apartment in the frieght depot of the ton to the steamship carrier, and thereafter, Michigan Central Railroad Company, a in view of the facts, the railway company building several hundred feet long, three or should be deemed to have held it as a ware- four hundred feet wide, and all under one houseman, and as there was no proof of neg-roof. Its different sections were without ligence it was not liable for the value of the cotton. The principal question arises out of that clause in the bill of lading providing that in case of any loss, detriment, or damage done to or sustained by the cotton before its arrival and delivery at its final destination, whereby liability was incurred by any carrier, that carrier alone should be held liable therefor in whose actual custody the cotton should be at the time of such damage, detriment, or loss. The circuit court of appeals and the circuit court concurred in the view that the cotton when burned was, within the partition walls between them. In the center of the building there was a railroad track for cars to be loaded with freight. The sec tion *in that building used by the Grand[356] Trunk Company was used only as a place for depositing goods and property that came over its road or that were delivered for shipment over it. In common with the rest of the building, that section was under the control and supervision of the Michigan Central Company. The Grand Trunk Company employed in its section two men, who checked freight coming into it. But all freight that came |