181 App. Div. 944, 168 N. Y. Supp. 483; | the lessee, its successors or assigns," and Texas & N. O. R. Co. v. Clevinger, Tex. Civ. App. —, 223 S. W. 1036; Williams v. McCarty, 15 A.L.R. 70, note, 82 W. Va. 158, 95 S. E. 638, 100 S. E. 565; United States v. Bostwick, 94 U. S. 53, 24 L. ed. 65; Tempel v. United States, 248 U. S. 121, 130, 63 L. ed. 162, 165, 39 Sup. Ct. Rep. 56; United States v. State Nat. Bank, 96 U. S. 30, 36, 24 L. ed. 647, 648; Lyons v. United States, 30 Ct. Cl. 360; Cooke v. United States, 91 U. S. 389, 398, 23 L. ed. 237, 243. Claimants are entitled to compensation for private property taken for public use. Michigan C. R. Co. v. Slack, Holmes 231, Fed. Cas. No. 9,527, affirmed in 100 U. S. 595, 25 L. ed. 647; United States v. Pacific R. Co. 120 U. S. 227, 239, 30 L. ed. 634, 638, 7 Sup. Ct. Rep. 490; Shoemaker v. United States, 147 U. S. 282, 297, 37 L. ed. 170, 184, 13 Sup. Ct. Rep. 361; United States v. Russell, 13 Wall. 623, 627, 20 L. ed. 474, 475; Filbin Corp. v. United States, 266 Fed. 911; United States v. Lynah, 188 U. S. 445, 471, 47 L. ed. 539, 549, 23 Sup. Ct. Rep. 349; Alexander v. United States, 39 Ct. Cl. 383. might be removed within the period of three months after the expiration of the lease. Shortly after the execution of the lease the chamber of commerce agreed "verbally" with the War Department that the land might be used and occupied as a portion of a training camp for United States troops; and the claimants acquiesced in and consented to its use and occupancy by the United States under and subject to the terms, conditions, and provisions of the lease. The land was thereafter included in Camp Joseph E. Johnston. The War Department erected thereon a base hospital, homes for nurses, and other buildings, and placed extensive improvements thereon. By a general provision in an Act of March 3, 1919,2 this and other camp hospitals were "permanently transferred to the Treasury Department for the use of the Public Health Service," with so much of their equipment, sites, and leases, and such other buildings and land, as might be required. lease to the chamber of commerce expired on September 11, 1920. On December 9, 1920, the plaintiff's attorney wrote the commanding officer of Camp Johnston that, by the terms of the lease, all right of occupation and of entry and removal of buildings would cease on December 11, and that on that date the property should be finally surrendered to the plaintiffs without further removal or molestation of any of the This action was brought by Margaret property remaining thereon; and sugW. Pearson and her husband under the gesting a conference in reference to the Tucker Act, to recover the value of matter. The commanding officer replied buildings and improvements erected by to him that the hospital had been transthe War Department on leased premises, ferred to the Public Health Service, to and removed after the expiration of which his letter had been referred, and the lease. The United States demurred with which the matter should be taken to the petition on the ground that it up. After some further correspondence, did not state a cause of action within the Surgeon General of the Public the jurisdiction of the court. The demurrer was sustained, and the petition dismissed. 58 Ct. Cl. 485. The Court declined to hear Solicitor General Beck and Special Assistant to the Attorney General Alfred A. Wheat for appellee. Mr. Justice Sanford delivered the opinion of the court: 1 The Health Service, on March 28, 1921, wrote the claimants' [426] attorney, describing the land as the Pearson tract "occupied by the United States," and stating that "owing to the necessity of salvaging certain materials placed upon the property by the government, and now needed elsewhere for hospital purposes, the use of the premises will be required until about May 1, 1921." On April The petition shows the following facts: On September 11, 1917, the claimants leased to the chamber of commerce of Jacksonville, Florida, a tract of land, to be used solely for Federal camp purposes, for the maximum term of three years. The lease provided that all buildings and improvements placed 6 the claimants' attorney replied, reupon the land during said term by the iterating the claim that, under the terms lessee, its successors or assigns, should of the lease, all buildings, etc., were remain [425] "the exclusive property of then part of the property, and legally 2 40 Stat. at L. 1302, chap. 98, § 2, Comp. Stat. § 9212 b, Fed. Stat. Anno. Supp. 1919, p. 68. 1 Act of March 3, 1887, 24 Stat. at L. 505, chap. 359, Comp. Stat. § 1136, Judicial Code, § 145. were no longer subject to removal; and suggesting a conference and proper adjustment of the matter. Without replying to this letter the Public Health Service continued to tear down and remove all the buildings and improvements that had been placed upon the land, and completed such removal by the end of June, 1921. The petition alleges that the value of the buildings and improvements thus removed exceeds $100,000, and prays judgment against the United States for the full value of the property "removed as aforesaid from said lands in violation of the rights of petitioners." action therefor would be one sounding in tort, for which the Tucker Act affords no remedy. Klebe v. United States, 263 U. S. 188, 191, 68 L. ed. 244, 246, 44 Sup. Ct. Rep. 58, and cases cited. The demurrer was rightly sustained, and the judgment is affirmed. J. L. LANCASTER and Charles L. Wallace, V. B. W. MCCARTY, J. T. McCarty, Guy Mc- (See S. C. Reporter's ed. 427-432.) Commerce permitting limitation of liability in carriage between points in same state- validity. Interstate interstate or foreign transportationAs to shipment within state as part of see note to Missouri P. R. Co. v. Sherwood, T. & Co. 17 L.R.A. 643. 1. The petition does not allege any contract by the United States, either express or implied in fact, to pay the claimants the value of the buildings and A provision in a regulation of the improvements removed by it. Nor does Commerce Commission fixing it set forth facts on which such a conNote. On validity of stipulation limtract will be implied. It does not ap-iting carrier's liability to agreed valuapear from the petition that the United tion as affected by the Hepburn ActStates stood in any contractual relation see note to Bernard v. Adams Exp. Co. with the claimants, as an assignee of the 28 L.R.A. (N.S.) 293. lease, or otherwise. On the contrary, it appears that it merely used the land under the oral permission of the chamber of commerce. And while the claimants allege, in general terms, that they acquiesced in and consented to such use and occupancy subject to the terms of the lease, it is not shown that the War Department either knew this fact or had any knowledge of the terms of the lease. Therefore, whatever may be the construction and effect of the lease as On Carmack Amendment as affecting to the right of [427] removing buildings state regulation as to stipulations limitand improvements, or the implied ob- ing liability of common carrier for loss ligation of the lessee or its assigns in or damage to goods-see notes to Adams regard thereto, the petition fails to show Exp. Co. v. Croninger, 44 L.R.A.(N.S.) that, as between the claimants and the 257, and Louisville & N. R. Co. v. Miller, United States, there existed any rela- 50 L.R.A. (N.S.) 819. tionship of landlord and tenant under the lease from which an agreement to pay for the property can be implied. lic use. amount of liability in cases of negliGenerally, on carrier's power to limit L.R.A. 433; New Jersey Steam Nav. Co. gence-see notes to Ballou v. Earle, 14 v. Merchants' Bank, 12 L. ed. U. S. 465, and Chicago, M. & St. P. R. Co. v. Solan, 42 L. ed. Ü. S. 688. carrier's liability, generally-see notes to 2. The petition shows no ground of recovery on an implied agreement upon the part of the government to pay the claimants for property taken for pubNo recognition of the plaintiffs' title is alleged in the petition. On the contrary, the facts shown plainly indicate that the buildings and improvements were removed by the government as its own property under the claim of right. Under these circumstances no agreement to pay for them can be implied. Whether the government's claim was well or ill founded is immaterial. If it was unfounded, and the claimants' property rights violated, the cause of L. ed. U. S. 688. 696 through freight rates between a point in | v. Aransas Harbor Terminal R. Co. 41 one state and points in another state, un- Inters. Com. Rep. 83; George N. Pierce der authority of the second Cummins Co. v. Wells, F. & Co. 236 U. S. 278, 59 Amendment to the Interstate Commerce L. ed. 576, 35 Sup. Ct. Rep. 351. Act, permitting limitation of liability based on rates for declared value for local The declaration or agreement of value transportation between points in the latter being valid as to interstate movements, state, is effective so far as the transporta- it is under such circumstances legal and tion occurs on the interstate line, as against binding upon a shipper of rugs in an a provision in a statute of the state, for intrastate movement, notwithstanding a bidding limitation of the carrier's common- state statute purporting to invalidate law liability. such declaration or agreement as to value. [No. 148.] Submitted December 11, 1924. March 9, 1925. ΟΝ Missouri P. R. Co. v. Harris, 67 Tex. Decided 166, 2 S. W. 574; Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 294, 62 L. ed. 295, 298, 38 Sup. Ct. Rep. 126; Corn Products Ref. Co. v. Eddy, 249 U. S. 427, 432, 63 L. ed. 689, 693, 39 Sup. Ct. Rep. 325; Ward & Gow v. Krinsky, 259 U. S. 503, 66 L. ed. 1033, 28 A.L.R. 1207, 42 Sup. Ct. Rep. 529; Railroad Commission v. Aransas Harbor Terminal R. Co. 41 Inters. Com. Rep. 119. N WRIT of Error to the Court of Civil Appeals for the Second Supreme Judicial District of Texas to review a judgment affirming a judgment of the County Court of Eastland County in plaintiffs' favor in an action brought to recover damages for injury to rugs while in defendants' possession for transportation. Reversed. See same case below, App. - 248 S. W. 816. Tex. Civ. No brief was filed for defendant in error. Mr. Chief Justice Taft delivered the opinion of the court: The facts are stated in the opinion. Messrs. T. D. Gresham and F. H. PrenThis was a suit for damages in the dergast submitted the cause for plain-county court of Eastland county, Texas, tiffs in error. Mr. Robert L. W. Thompson was on the brief: Classification regulations, as well as rates, published to apply on both intrastate and interstate traffic, in conformity with a competent order of the Interstate Commerce Commission, requiring the removal of unjust discrimination against interstate commerce, are binding alike on the public and on the carriers affected thereby. Hart v. Pennsylvania R. Co. 112 U. S. 331, 28 L. ed. 717, 5 Sup. Ct. Rep. 151; Gibbons v. Ogden, 9 Wheat. 1, 206, 6 L. ed. 23, 72; Smith v. Great Northern R. Co. 15 N. D. 195, 107 N. W. 56; D'Utassy v. Southern P. Co. 174 App. Div. 547, 161 N. Y. Supp. 222; American Sugar Ref. Co. v. Delaware, L. & W. R. Co. 125 C. C. A. 251, 207 Fed. 733; Wichita Falls & W. R. Co. v. Asher, Tex. Civ. App. 171 S. W. 1114; Shreveport Rate Case, 23 Inters. Com. Rep. 31; Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18; New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 391, 50 L. ed. 515, 521, 26 Sup. Ct. Rep. 272; Railroad Commission by the defendants in error, partners as the Cisco Furniture Company, to recover from the plaintiffs in error, the receivers of the Texas & Pacific Railway, $198 for injury to two rugs and to three chairs shipped by the Furniture Company from Fort Worth, Texas, over the railway to Cisco, Texas, and $20 for attorney's fees exacted by the stat statute for the delay of the railway in allowing and paying the claim. The real issue here is whether the amount of the damages for the admitted injury should be measured by the statutory law of Texas or by the regulations of the Interstate Commerce Commission, with respect to the classification of traffic and fixing of rates as directed by it in accordance with the decree by the commerce court of the United States, affirmed by this court in Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833, known as the Shreveport Case. The damage to the chairs is not involved. The question arises only as to the two rugs. The transportation [429] began at Fort Worth, Texas, and ended at Cisco, Texas. It was carried on under a bill of lading, according to the forms of the Interstate Commerce Commission, which provided that the rates should be 70 cents per 100 pounds on rugs classified as not exceeding in value No. 56 apply, the judgment of the court $75. The bill of lading was stamped of civil appeals of Texas should be rewith the following notation: "Valua- versed; if article 708, Rev. Stat. of tion on rugs less than $75 per 100 Texas, applies, the judgment should be pounds." The rugs in the transit were affirmed. much damaged by acid and were said to be worth but $5 apiece after the damage. The shippers claim that their value when shipped was $95 apiece. Under the valuation noted on the bill of lading, their value could not have exceeded $60, because each rug weighed 40 pounds. The Texas court of civil appeals, which was the highest court to which the case could be brought, because the supreme court of Texas held that it had no jurisdiction, relied upon article 708 of the Revised Statutes of Texas, which provides that railroad companies within the state shall not limit or restrict their liability as it existed at common law by any general or special notice, or by inserting exceptions in the bill of lading, or by memorandum given upon the receipt of the goods for transportation, or in any other manner, and that any such special agreement shall be invalid. These rugs were shipped March 13, 1920, after the second Cummins Amendment to the Interstate Commerce Act (August 9, 1916, 39 Stat. at L. 441, chap. 301, Fed. Stat. Anno. Supp. 1918, p. 387), which permits to carriers a limitation of liability upon property received for transportation concerning which the carrier shall have been authorized by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper, or agreed upon in writing as the release value of the property. In such a case, such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released. [430] The writ of error is brought here under $ 237 of the Judicial Code, on the ground that this order of the Interstate Commerce Commission fixing the classification and rates thereunder is an authority exercised under the United States which, by the contention of the shippers, was drawn in question, and its validity denied by the state court. United States ex rel. Champion Lumber Co. v. Fisher, 227 U. S. 445, 451, 57 L. ed. 591, 594, 33 Sup. Ct. Rep. 329. It is not disputed therefore that if the order of the Interstate Commerce Commission and the Western Classification The Shreveport Case began by an application of railway carriers running west from Shreveport across the Texas state line to Houston and Dallas to set aside an order of the Interstate Commerce Commission, on the ground that it exceeded its authority. The order was made in a proceeding initiated by the railroad commission of Louisiana before the Commission. The complaint in that proceeding was that the carriers maintained unreasonable rates from Shreveport, Louisiana, to various points in Texas, and that the carriers in the adjustment of their rates over their respective lines discriminated in favor of traffic within the state of Texas and against similar traffic between Shreveport and Texas points; that Shreveport competed in business with Houston and Dallas, and that the rates from Dallas and Houston east to intermediate points in Texas were much less according to distance than from Shreveport westward to the same points, with conditions similar in all respects. The difference was substantial and injuriously affected the commerce of Shreveport. The Commission found that interstate rates out of Shreveport to main Texas points were unreasonable, and it fixed maximum rates for that traffic. It also found that the rates from Houston and Dallas [431] eastward to Texas points were so low as to be a discrimination and an undue and unlawful preference against Shreveport and against its interstate commerce. Accordingly, the carriers were directed to desist from charging higher rates from Shreveport to Dallas and Houston respectively, and intermediate points, than were contemporaneously charged for the same carriage from Dallas and Houston to Shreveport, for equal distances. The commerce court sustained the order, and so did this court, leaving it to the Railroad Company to bring about the equality required, either by decreasing the rates from Shreveport to the Texas points between that city and Dallas and Houston, or by increasing the intrastate rates from Houston and Dallas eastward to the Texas points between those cities and Shreveport. This Western Classification which the carrier applied in this case was adopted by the railroads under the authority of the Interstate Commerce Commission, thus Commerce - power to punish transpor tation of stolen automobiles. 2. Congress has power to punish interstate transportation of a motor vehicle, knowing the same to have been stolen. Commerce punishment of receiver of stolen automobile transported in interstate commerce. commerce with Congress (?) 3. Commerce has power to punish the 4. When a case is taken to the Supreme Court of the United States on a constitutional question, that court must decide the other questions arising on the record. Indictment sufficiency charging knowledge that automobile was stol sustained in the Shreveport Case. That, punishing the use of such commerce as an RAE BROOKS, Plff. in Err., V. UNITED STATES. (See S. C. Reporter's ed. 432-441.) Commerce power of Congress to prohibit immoral acts. 1. Congress may regulate interstate commerce to the extent of forbidding and Note. On constitutionality, construction, and effect of Federal statute making it an offense to transport stolen motor vehicles in interstate or foreign commerce-see note to Whitaker v. Hitt, 27 A.L.R. 956. en. 5. An indictment for transporting a stolen automobile in interstate commerce sufficiently charges that accused knew that it was stolen by reciting that it had been cumstances of the transportation, and constolen from a person named, and the circluding "all of which" the accused "then and there well knew.” Appeal erroneous instructions-con current sentences. the second count were erroneous, if the sen- [No. 286.] were Argued January 30, 1925. Decided March ΟΝ N WRIT of Error to the District The indictment was insufficient. |