« ForrigeFortsett »
1 Desty, Taxn. 253, 470–475; Cooley, Taxn. paper of any kiod, unless such power is ex329; 2 Dill. Mun. Corp. § 821; United States pressly conferred upon them or clearly implied v. Nero Orleans, 98 U. S. 381, 25 L. ed. 225; from some other power expressly given. Justice v. Logansport, 101 Ind. 326; 25 Am. & 1 Dill. Mun. Corp. S$ 123, 507; Claiborne Eng. Enc. Law. p. 18; Knowlton v. Rock County v. Brooks, 111 U.S. 400, 28 L. ed. 470; Corinty Supers. 9 Wis. 411.
Police Jury V. Britton, 82 U. S. 15 Wall. 566, The legislature has no power to delegate its 21 L. ed. 251; Nashrille v. Ray, 86 U. S. 19 taxing power to a municipal corporation or Wall. 468. 22 L. ed. 164. political subdivision, except for local or corpo- The Constitution is a limitation, and not a rate purposes.
grant of power. 1 Desty, Taxn. 26, 253, 259, 274; Cooley, Bushneil v. Beloit, 10 Wis. 196. Const. Lim. 260; People v. Parks, 58 Cal. 644; Tbe benefits to be derived by Chippewa Foster v. Kenosha, 12 Wis. 618; Slinger v. county from the location of this instilution at Henneman, 38 Wis. 510; Taylor' v. Chandler, Chippewa Falls, are not such as to make a 9 Heisk. 349: Washington Avenue, 69 Pa. 352, tax levied to establish and maintain it a tax 8 Am. Rep. 255; State, McCurdy, v. Tappan, levied for a corporate purpose. 29 Wis. 684, 9 Am. Rep. 622; Const. art. 2, Livingston County Supers. v. Weider, 64 Ill. § 22; Jensen v. Polk County Supers. 47 Wis. 427; Wasson v. Wayne Founty Comrs. 49 Obio 313.
Sl. 622, 17 L. R. A. 795; State, Board of Edu., The legislature cannot delegate any greater v. Haben, 22 Wis. 664; State, McCurdy, v. Tap. power than the state itself possesses, and it pan. 29 Wis. 664, 9 Am. Rep. 622. must observe tbe restrictions of the organic The legislature cannot do indirectly (hy del. law.
egation) what it cannot, under the Constitu. Cooley. Const. Lim. 240; 2 Dill. Mun. Corp. tion, do directly. $8 740, 773; 1 Desty, Taxn. 259; O'Donnell v. Cooley, Const. Lim. 240; Nevil v. Clifford, Bailey, 24 Miss. 386; Primm v. Belleville, 59 63 Wis. 447; La Pointe Supers. v. O'Malley, 47 Ill, 142; Weightman v. Clark, 103 U. s. 256, Wis. 337. 26 L. ed. 392; Wasson v. Wayne County Comrs. A tax cannot be apportioned to the benefits 49 Ohio St. 622, 17 L. R A. 795; People, De- or supposed benefits received. This can only troit & II. R. Co., v. Salem Tup. Board, 20 be done by assessments” in cities and in inMicb. 474, 4 Am. Rep. 400; Anderson v. Hill, corporated villages. 54 Micb. 487.
Wis. Const. art. 11, $ 3; Weeks v. Milwau. The rule of uniformity, provided by $ 1, kee, 10 Wis. 256. art. 8, of the Constitution, requires that taxa
On rehearing. tion shall be uniform within and for the district All the power of taxation is vested in the for wbich the tax is levied.
legislature; all taxes levied by a political sub25 Am. & Eng. Enc. Law, p. 60; Cooley, division are, in legal effect, levied by tbe state. Const. Lim. 494; Cooley, Taxn. 140, 143, 244; The power of the legislature to tax is limited 1 Desty, Taxn. 175, 176: Livingston County by the Constitution. Supers. v. Weider, 64 Ill. 427; Wasson v. Wayne Any single individual has a right to insist County Comrs. supra; New Orlean8 v. Fourchu, that ibe public does not own or control his 30 La. App. 912; Dyar v. Farmington, 70 Me. property for the purpose of donation. 515; Pleuier v. State, 11 Neb, 547; East Port- People, Detroit & H, R. Co., v. Salem Tup. land v. Multnomah County, 6 Or. 62; Weight- Board, 20 Mich. 487, 4 Am. Rep. 400. man v. Clark, 103 U. S. 256, 26 L. ed. 592; Taxes levied by municipal corporations, Knowlton v. Rock County Supers. 9 Wis. 411; which are for this purpose instruments of Hale v. Kenosha, 29 Wis. 603.
the state, are, in legal effect. levied by the A rule of taxation that requires a county to state. contribute twice to the same burden, while Justice v. Logansport, 101 Ind. 326; Knowlotber counties are required to contribute but ton v. Rock ('ounty Supers. 9 Wis. 411. once, violates § 1, art. 8, of the Constitution Can the state, by its legislature or its infeand is void,
rior agents, apportion a tax for a state purCooley, Taxo. 222; State, Nunnemacher, v. pose? Mann, 76 Wis. 498.
A tax levied for a state purpose must be If chapler 138 of the Laws of 1895 violates levied upon all the taxable property within the rule of uniformity it is unconstitutional and the state, and cannot be apporiioned. void, and tbe consent of the board of super- Weeks v. Milwauker, 10 Wis, 256. visors cannot validate the tax levied under it. If this money was not voted for a local
Cooley, Const. Lim. 240; Cooley, Taxp. 143; purpose, but for a state purpose, the rule of 1 Desty, Taxp. 259, 481; O'Donnell v. Bailey, uniformity was broken. Primm v. Belleville, People, Detroit & H. R. W'asson v. Wayne County Comrs. 49 Obio St. Co., v. Salem Tup. Board, and Wasson v. 622, 17 L. R. A. 795; State, Board of Edu., v. Wayne County Comrs. supra; Whiting v. She- Haben, 22 Wis. 664; State, McCurdy, v. Tapboygan & F. du L. R. Co. 25 Wis. 173, 3 Am. pan, 29 Wis. 679, 9 Am. Rep. 622; Desty, Taxn. Rep. 30; Anderson v. Hill, 54 Micb. 491. 274; Cooley, Taxp. 140; Knowlton v. Rock
Under chapter 136 of the Laws of 1895, the County Supers. 9 Wis. 411, Approved in Hale county board of Chippewa connty had no au- v. Kenosha, 29 Wis. 664. thority to issue the bonds in question.
In respect of public ‘or quasi corporations, Mere political bodies, constituted as counties, such as counties, as distinguished from municare for the purpose of local police administra- | ipal corporations proper, the general current tion, and, baving the power of levying taxes of authority is against the proposition that, as for the purpose of paying all county charges ordinarily recognized they possess any power created, have no power to make commercial to issue negotiable instruments.
1 Dill, Mun, Corp. 507; Cooley, Const. Lim. / no reference to cities or villages, but deals 240, 241; Cooley, Taxn. 143; Clark v. Janes throughout with counties, we must conclude ville, 10 Wis. 170; Merrick v. Amherst
, 12 Alled, that by tbe word “municipalities,” as used in 500; State, Bonrd of Edu., v. Haben, 22 Wis, the aci in question, the legislature iotended to 660; State, McCurdy, v. Tappan, 29 Wis. 664, 9 include counties. Am. Rep. 622; Whiting v. sheboygan & F. du 2. It is contended that the language of the L. R. Co, 25 Wis. 167, 3 Am. Rep. 30; Ellis v. statute is not broad enough to authorize the Northern P. R. Co. 77 Wis. 118.
proposed issue of the bonds. It is not conA town cannot assume, nor cằn the state tended that the county board would bave had compel it to assume, as a town charge, a bur such power in the absence of chap. 138, Laws dep which should properly be borne by the 1095. By that act the state board of control whole state. A local assessment for a general was expressly empowered to "receive proposals benefit is unconstitutional.
for donations of money or other securities in Desty, Taxp. 274; Foster v. Kenosha, 12 behalf of this state for the benefit of such Wis. 618; Gordon v. Cornes, 47 N. Y. 608; home," and may also “receive any donations Livingston County v. Darlington, 101 U. S. or bequests which may be made for its main407, 25 L. ed. 1015; State v. Nelson County, 1 tenance and support," and the “municipalities N. D. 88.
of this state” were thereby expressly "em.
powered to make the donations herein (therein) Cassoday, Ch. J., delivered the opinion of mentioned for the establishment and building the court:
of such a home." $2. The words, “other It is contended by counsel for the plaintiff securities” are certainly broad enough to inthat a county is not a municipality, within the clude bonds. If the county board bad power mearing of chap. 138, Laws 1895. Properly to issue such "securities," then, under the de. speaking, municipal corporations are brought cisions of this court, they had the implied into existence at the instance or request of the power to put them in the form of boods. persons residing therein, for their own local | Mills v. Gleason, 11 Wis. 470, 78 Am. Dec. advancement and convenience. On the other 721; State v. Madison, 7 Wis. 688; State, hand, counties are local subdivisions of the Priest, v. Regents of Wis. University, 54 Wis. state, created by its own sovereigo power and 170: Gilman v. Milwaukee, 61 Wis. 592, will, without the particular solicitation, con- 1 Reid, Corporate Finance, $ 8. sent, or concurrent action of the citizens 3. "The legislature may confer upon the thereof, and almost exclusively with a view to boards of supervisors of the several counties of the policy of the state at large, for purposes of the state such powers of a local, legislative, and political organization and civil administration. administrative character, as they sball from i Dill. Mun. Corp. § 23. The same learned time to time prescribe.” Wis. Const. art. 4, author says: "The phrase 'municipal corpora- $ 22. In construing this provision of our Contion' is used with us, in general, in the strict stitution, ibis court has beld that, when any and proper sense just mentioned: but some subject of legislation is intrusted to said county times it is used in a broader sense, that includes boards by general words in a statute, they acalso public or quasi corporations, the principal quire a right to pass any ordinance necessary purpose of whose creation is as an instrumen- or convenient for the purpose of disposing of tality of the state, and not for the regulation the whole subject so committed to them, and for of the local and special affairs of a com tbat purpose have all the powers of tbe state pact community." Id. & 20. We are con legislature over that subject, unless the statute strained to bold that counties are municipalities, restricts the power, or directs its exercise in a within the meaning of the provision of tbe act certain way. La Pointe Supers, v. O'Malley, wbich declares that “municipalities of this 47 Wis. 332; Knight v. Ashland, 61 Wis. 233. state are hereby empowered to make the do. The county was expressly empowered by siatnations herein mentioned for the establisbment ute “10 apportion and order the levying of and building of such a home.” Laws 1895. taxes, as provided by law, and direct the raising chap. 138, § 2. Thus in Eaton v. Manitmooc of such sums of money as may be necessary County Supers. 44 Wis. 493, it is said: “Towns to defray the county charges and expenses, are often called in common parlance, and and all necessary charges incident to or arissometimes, unguardedly in statutes, municing from the execution of their lawful autbor. ipal corporations,’in connection with counties, ity." Rev. Siat. $ 669, subd 5. cities, and villages; but when so called it is in 4. It is contended that the authority thus the sense of mere corporations, or quasi cor: given to the county by the act in quesiion to porations, or corporations sub modo, only, and dopale to the state “money or other securities not in the sense of municipalities proper." for the establishment and building of such Cathcart v. Comstock, 56 Wis. 606, 608. The bome” was contrary to public policy, and site to be selected was to comprise pot less than therefore void. This court has beld that "the 200 acres of land, with good drainage and legislature may impose conditions precedent sewerage facilities, and an abundant supply of to the removal of a county seat, in addition to pure water. It would hardly be expected to those imposed by the state Constitution.” find such a site in a city or incorporated vil. State, Park, y. Portage County. Supers. 24 lage. Besides, the act makes all the provisions Wis. 49. In that case the act which was held of chap. 32, Rev. Stat., relating to the support valid provided, in effect, that, after a majority of insane persons and the liability of counties of the votes should be cast in favor of removtherefor, applicable, as far as practicable, to ing the county seat to the city of Stevens Point, persons admitted to the home for the fecble yet it sbould pot be so removed until that city minded. $ 4. Since the chapter of the Re. should first place at the control of the county vised Statutes so made applicable has little or board $10,000, with which to build county buildings at that place. To the same effect is legislature has no power, against the will of a Pepin County v. Prindle, 61 Wis. 311-311. municipal corporation, to compel it to contract Such dopations bave been sanctioned in several debts for local purposes io wbich the state bas states. Id., and cases there cited; Behinn v. po concern, or to assume obligations not within Ghio, 75 Tex. 87. The donation here author- the ordinary functions of municipal governized was merely to secure a site for the bome, ment. ..... The state in such cases may and in no way affected the efficiency and suc- remove restrictions and permit action, but it cessful operation of the institution when estab cannot compel it." Cooley, Const. Lim. 230, lisbed. Upon the authorities cited, we must 231. We bave a good illustration in this state. hold'that the authorizing of such donation Our Constitution provides that the state shall was not against public policy.
never contract any debt for works of internal 5. The principal contention is that the au- improvement, or be a party in carrying on thorization of such donations was repugnant such works." $ 10, art. 8. Nevertheless the to that clause of our Constitution which de legislature has, from time to time, commencclares that “the rule of taxation shall be uni. ing with the early history of the state, authorform, and taxes sball be levied upon such ized such municipalities to contract such debts, property as the legislature shall prescribe." if not to be a party in carrying on such works, § 1, art. 8. This provision manifestly re- and such legislation bas frequently been held to quires such uniformity, in case of a state tax, be valid. Hasbrouck v. Milwaukee, 13 Wis. to extend throughout the state; in case of a 42, 80 Am. Dec. 718. Cases to such effect. are county tax, to extend throughout the county; numerous. Atty. Gen. v. Eau Claire, 37 Wis. in case of a city tax, to extend throughout the 400. That tbe legislature may authorize mucity; and, in case of a town tax, to extend nicipalities to levy taxes for purposes for which throughout the town. In other words, tbe it cannot compel ibem to levy taxes might be rule of uniformity is not broken merely be illustrated by the citation of numerous adjudi. cause a town or city or county raises a special cations, but it is unnecessary. See, however, tax for local purposes. If the proposed iax to Brodhead v. Milwaukee, 19 Wis. 625, 88 Am. pay the $12.700 in securities donated by Chip- Dec. 711; State, McCurdy, v. Tappan, 29 Wis. pewa county may properly be regarded as a 664, 9 Am. Rep. 622. This court has held county tax, then the question of uniformity is that legislation to the effect that where the cost not involved, since there is no pretense that, of a bridge in a town exceeds a certain per cent in levying that tax upon the taxable property of all the taxable property of the town, the in tbat county, any other tban such uciform county may be required to pay one half of rule is to be followed. It is sought to bring the cost thereof, is valid, and does not break the case within the condemnation of the con- the rule of uniformity. State, Baraboo, V. stitutional provision quoted, on the theory that Sauk ('ounty Supers. 70 Wis. 485. tbe proposed bome is to be a state institution; 6. Since the securities authorized to be dothat it is to be governed, conirolled, and man pated in the case at bar are securities issued by aged wbolly by state officers and agencies; that the county, and since the proposed taxes in it is to be establisbed, built, and maintained payment of the same are to be county taxes, by all the taxpayers and taxable property tbe precise question presented is whether tbrougbout the state, including such property the purpose for which such securities were and taxpayers in Chippewa county; ibai tbe donated, and for which such taxes are state would bave bad po power. by direct action, to be raised, is such as to justify the pro. to compel one or more counties of the state. visions of the enactment in question. This less than the whole, to pay an additional amount court has sustained the validity of acts of for such establishment, building, and maiute the legislature autborizing municipalities pance; and hence that the legislature could not, to raise moneys by taxation to pay bounties by delegating such authority to such munici. to volunteers in the United States army. palities, do indirectly what, under the Consti Brodhead v. Milwaukee, and State, McCurdy, v. iution, it could not have done directly. It is Tappun, supra. In those cases it was, among certainly to be a state institution; to be gov other things, in effect, held that wbile “the erped, controlled, and managed by the state; legislature cannot create a public debt, or levy and to be established, built, and maintained a tax, or autborize a municipal corporation to by the state. But it does not follow that the do so, in order to raise funds for a mere pristate could not authorize a municipality in vate purpose,” and while "the objects for wbich it should be located to do what ihe state which money is raised by taxation must be itself could not do directly. In speaking of public, and such as subserve the common the twofold cbaracter of such municipalities, interest and wellbeing of the community reas agencies of the state government and as quired to contribute,” yet to justify a court “corporations endowed with capacities, and in declaring a tax void, and arresting proceedpermitted to hold property and enjoy peculiar ings for its collection, the absence of all possiprivileges for the benefit of their corporators ble public interest in the purposes for which exclusively,”—Mr. Cooley says: "The legisla the funds are raised must be so clear and palture may permit the incurring of expense, the pable as to be immediately perceptible to every contracting of obligations, and the levy of taxes mind;" that "claims founded in equity and which are unusual, and wbich would not be justice, in the largest sense of those terms, or admissible under the powers usually conferred. in gratitude or cbarity, will support a tax;" Instances of the kind may be mediioned in the that "ibe legislature may authorize a town or offer of military bounties, and the payment of other municipality to levy taxes therein for a disproportionate share of a state burden in public purposes 'not strictly of a municipal consideration of peculiar local benefits which character, but from which the public have reare to spring from it. But it is believed the ceived, or will receive, some direct advantage, or where the tax is to be expended in defraying I pal officers, in levying a tax to aid in the purthe expenses of the government, or in promot-chase of a site or the erection of buildings, do ing the peace, good order, and welfare of so not change the nature of the question here pre ciety, or in paying claims founded upon pat- sented.” See Gordon v. Cornes, 47 N. Y. 608. ural justice and equity, or upon gratitude for In Curtis v. Whipple, 24 Wis. 350, the act to public services or expenditures, or in discharg- empower the town to raise money by taxation ing the obligations of cbarity and humanity.” for the benefit of Jefferson Liberal Costitute, a True, in Whiting v. Sheboygan & F. du L. R. private corporation, was held invalid by two Co. 25 Wis. 167, 3 Am. Rep. 30, two of the members of the court on the ground that it was three members of this court, as then constitut- "essentially a private educational institution," ed, beld that an act authorizing a county to and by the other member of the court "mainly issue its orders in aid of the construction of a on the ground that the constitutional provi. railroad therein, and to levy a tax to pay such sions for public schools of every grade" were orders, without becoming a stock holder in the exclusive. To the same effect, Cole v. La company, was invalid, on the ground that such Grange, 113 U. S. 1, 28 L. ed. 896. In Living, orders and tax were for a private purpose. ston County v. Darlington, 101 U. S. 407, 25 But that case was expressly overruled, and the L. ed. 1015, an act of the legislature of Illi. same act of the legislature was held valid, by pois establishing a state reform school, and au. the Supreme Court of the United States, on the thorizing municipal corporations to donate ground that such railroad was a public high money to secure the location of the same within way, and hence the purpose of such county or their limits, was sustained and beld valid, ders and county taxes in aid of its construction there being no settled or uniform decision to was for a public purpose. Olcott v. Fond du the contrary by the supreme court of that state. Lac County Super8. 83 U. S. 16 Wall. 678, 21 In Indiana, legislation authorizing counties to L. ed. 382. That decision bas steadily been make donations for the purpose of securing the adhered to since, and seems to be in barmony location of an agricultural college within their with the rule established in most of the states. jurisdiction was held valid; and it was there Humbird v. Jackson County Supers. 154 U. S. further beld tbat an obligation by the county 592, 38 L. ed. 1089; Roberts v. Northern P. R. for such purpose was “solely a county purCo. 158 U. S. 17, 39 L. ed. 879, Affirming pose, local in its nature, and properly assessed Northern P. R. Co. v. Roberts, 42 Fed. Rep. and collected as are taxes for other county pur734; Folsom v. Township Ninety Sir, 159 U. S. poses.” Marks v. Purdue University, 37 Ind. 628, 40 L. ed. 284, and cases there cited. Wbat. 155, Id. 56 Ind. 288. So it has been held in ever force may be given by tbis court to the de. Massachusetts that the legislature bave power cision of Whiting v. Sheboygan & F. du L. R. 10 pass an act authorizing a town to raise Co. it is manifest that it ought not to be exteud-money for the establishment of an agricultural ed. Counsel cite State, Board of Edu., v. Haben, college therein. Merrick v. Amherst, 12 Allen, 22. Wis. 660, where it was beld that “money 500. See also State v. Nelson County, 1 N. D. raised in a city, by taxation, for the purpose of 88; Cooley, Const. Lim. 230, 231. erecting a high-school building, cannot be di- In the case at bar it must be conceded ibat verted by an act of the legislature, without the the establishment and building of the Wisconassent of the city or its inhabitants, to the pur sin Home for Feeble-Minded was and is a pubchase of a site for a normal school in said ciiy.” lic purpose. It must also be conceded ibat That decision does not tend to invalidate ihe there are peculiar and special benefits which act in question, but rather tends to support it. will naturally spring from such location. This This is apparent from two extracts from the is manifest from the fact that numerous such opinion of Dixon, Ch, J., in that case, where municipalities, by a tender of such donations, he said: “To say that the legislature can, entered into competition for such location. without the assent of the proper municipal au. The right of convenient visitation by friends thorities or of the inhabitants, take the money of the unfortunate inmates is of itself a valu. of the city of Oshkosh, and appropriate it to able rigbt. Without further specification or the establishment of a state normal school, is discussion, we must hold the provisions of the to say that it can take the money of any mu. act in question to be valid. nicipal corporation, and apply it to any gen. The order of the Circuit Court is reversed, and eral state purpose.
The advantages the cause is remanded, with direction to susincidentally accruing to the citizens of Osb. tain the demurrer, and for furiber proceedings kosh from the establishment of a state por according to law. mal school at that place, though sufficient, with the consent of the legislature, to justify Rehearing denied. the citizens themselves, or the proper munici. 34 L. R. A.
ALABAMA SUPREME COURT.
ANNISTON TRANSFER COMPANY, plaintiff in an action brought to recover the Appt.,
value of a trunk and contents wbich had been 0.
delivered to defendant for transportation. ReS. M. GURLEY.
Defendant was engaged as a transfer com(107 Ala. 600.)
pany in transporting baggage about tbe city of The contract of a baggage transfer Anniston. It was employed by plaintiff's company to transport baggage from a resi- agent to take a trunk from a residence to the dence to a railroad depot is fully performed so Georgia Pacific Railway depot. The trunk that its responsibility ceases when the baggage is was delivered to a driver of one of defendant's delivered to the agent of the railroad company wagons and carried to the depot. at the depot.
Further facts appear in the opinion. (June 26, 1895.)
Messrs. Knox, Bowie, & Pelham for apAPPEAL. Wy defendant from a judgment of pelmest,
Messrs. Methvin & Kelly for appellee.
NOTE.--Liability of baggage transfer companies. In Robinson'v. Cornish, supra, the defendant,'a
city expressman having a license to carry on such I. As common carriers.
business in the city of New York, bad a parcel deII. When liable. III. Limitation of liability.
livered to him by the plaintiff for carriage between IV. When not liable.
points in said city, which package was received by
his driver and was lost or stolen from his wagon. V. The effect of a custom.
Upop suit brought to recover its value it was held The question of the liability of baggage transfer that he was liable as a common carrier, or if not as companies rests upon the same principles as that such, he was still liable as a private carrier, or as a of other common carriers, and is determined in bailee for hire, on the theory of negligence. like manner. They are liable according to the Where a railroad passenger on arriving at his degmanner in which they hold themselves out and tination entered into a contract with a transportatransact their business.
tion company for an agreed price to procure his The holding of the court in the principal case of baggage from the railroad company's depot and ANNISTON TRANSFER Co. v. GURLEY, is in har-haul it to his residence, and surrendered his bagmony with the prior decisions.
gage checks to such company, it was held that the
transportation company was liable for the safe 1. As common carriers.
keeping of tbe baggage and for its safe delivery, a The question whether a baggage transfer com- contractual relation existing between the parties pany is or is not a common carrier must be deter- which the passenger might enforce by action and mined by the following general principles laid sequestration. De Ponte v. New Orleans Transfer down in cases wherein the question has been dis. Co. 42 La. Ann. 696. cussed.
The case of Parmelee v. Lowitz, 74 I11. 116, 24 Am. A person who makes it a business to solicit from Rep. 278, was an action to recover the value of the public the carriage of trunks and packages articles in a trunk delivered by the appellee to the from place to place for hire is to all intents and appellant to be carried for hire from the depot to purposes a common carrier. Robinson v. Cornish, the appellee's residence. In affirming the judg34 N. Y. S. 695.
ment of the court below in favor of the appellee, The test is, whether he holds out, either expressly the court held that the appellant was a common or by a course of conduct, that he will carry for carrier and as such was bound to carry the trunk bire the goods of all persons indifferently who and its contents safely, though it was not such as send them to him. Ibid.
was usually carried by him as baggage, there being A truckman who transfers from place to place no fraud or deception practiced by the appellee as to the goods of all choosing to employ him is a com- the contents of the trunk, the appellant not inquirmon carrier, even though bis charges be not fixed ing as to such contents, and the appellee not being as to the amount. Jackson Arcbitectural Iron under a special obligation to make the contents Works v. Hurlburt, 15 Misc. 93. In this case the known. court followed the ruling in the earlier cases of And althougb hotel proprietors and innkeepers Richards v. Westcott, 2 Bosw. 589, and Allen v. are not generally carriers, yet in cases where they Sackrider, 37 N. Y. 341, and although it was not one have engaged to carry or transport the baggage in which baggage was transported, yet it is here of their guests from their premises to the depots cited as showing a bearing upon the question in the courts have looked upon them as such. hand.
In Dickinson v. Wincbester, 4 Cush. 114, 50 Am. But if the defendant or party hired to carry does Dec. 76C, an innkeeper wbo, by public notice, ennot follow such calling as a general or babitual gaged to carry all guests and their baggage free business, but carries the articles in question under a from the depot to bis house, and vice versa, was special contract, he will not be liable as a common held liable for the baggage of a guest lost by the carrier, but only upon his contract. Fish v. Chap- negligence of the driver of the back, the court man, 2 Ga. 349, 46 Am. Dec. 393.
basing its opinion upon the principles of tbe docIn Richards v. Westcott, supra, it was proved trine of estoppel, the innkeeper by reason of his nothat the trunk was delivered to the defendant com- tice being looked upon as making the driver his pany, who carried trunks for hire between tbe de- agent or servant. In this case, however, the quespots in the city, to be carried to the passenger tion as to whether or not the innkeeper was to be depot of the railroad company to accompany the held responsible by reason of his having engaged plaintiff's agent on his journey, and that by reason in such business, or whether he was responsible as of the defendant's negligence the trunk was not de a common carrier, was mooted but not decided by livered at the depot. It was held that the defend the court. ants were common carriers and liable as such. In Dibble v. Brown, 12 Ga. 217, 56 Am. Dec. 460,