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 Allen, that by the word "municipalities," as used in 500; State, Board of Edu., v. Haben, 22 Wis. the act in question, the legislature intended to 660; State, McCurdy, v. Tappan, 29 Wis. 664, 9 include counties. Am. Rep. 622; Whiting v. sheboygan & F. du L. R. Co, 25 Wis. 167, 3 Am. Rep. 30; Ellis v. Northern P. R. Co. 77 Wis. 118. A town cannot assume, nor can the state compel it to assume, as a town charge, a bur den which should properly be borne by the whole state. A local assessment for a general benefit is unconstitutional. Desty, Taxn. 274; Foster v. Kenosha, 12 Wis. 618; Gordon v. Cornes, 47 N. Y. 608; Livingston County v. Darlington, 101 U. S. 407, 25 L. ed. 1015; State v. Nelson County, 1 N. D. 88. Cassoday, Ch. J., delivered the opinion of the court: 2. It is contended that the language of the statute is not broad enough to authorize the proposed issue of the bonds. It is not contended that the county board would have had such power in the absence of chap. 138, Laws 1895. By that act the state board of control was expressly empowered to "receive proposals for donations of money or other securities in behalf of this state for the benefit of such home," and may also "receive any donations or bequests which may be made for its maintenance and support," and the "municipalities of this state" were thereby expressly "empowered to make the donations herein [therein] mentioned for the establishment and building of such a home.' 2. The words, "other securities" are certainly broad enough to include bonds. If the county board had power to issue such "securities," then, under the decisions of this court, they had the implied power to put them in the form of bonds. Mills v. Gleason, 11 Wis. 470, 78 Am. Dec. 721; State v. Madison, 7 Wis. 688; State, Priest, v. Regents of Wis. University, 54 Wis. 170: Gilman v. Milwaukee, 61 Wis. 592, 1 Reid, Corporate Finance, § 8. 3. "The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative, and administrative character, as they shall from time to time prescribe." Wis. Const. art. 4, It is contended by counsel for the plaintiff that a county is not a municipality, within the mearing of chap. 138, Laws 1895. Properly speaking, municipal corporations are brought into existence at the instance or request of the persons residing therein, for their own local advancement and convenience. On the other hand, counties are local subdivisions of the state, created by its own sovereign power and will, without the particular solicitation, consent, or concurrent action of the citizens thereof, and almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration. i Dill. Mun. Corp. § 23. The same learned author says: "The phrase 'municipal corpora- 22. In construing this provision of our Contion' is used with us, in general, in the strict stitution, this court has held "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- that purpose have all the powers of the state pact community." Id. § 20. We are con legislature over that subject, unless the statute strained to hold that counties are municipalities, restricts the power, or directs its exercise in a within the meaning of the provision of the act certain way. La Pointe Supers. v. O'Malley, which 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 statnations herein mentioned for the establishment ute "to 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. Manitococ 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, munic-ing from the execution of their lawful authoripal corporations,' in connection with counties, ity." Rev. Stat. § 669, subd 5. cities, and villages; but when so called it is in the sense of mere corporations, or quasi cor porations, or corporations sub modo, only, and not in the sense of municipalities proper." Cathcart v. Comstock, 56 Wis. 606, 608. The site to be selected was to comprise not less than 200 acres of land, with good drainage and sewerage facilities, and an abundant supply of pure water. It would hardly be expected to find such a site in a city or incorporated village. Besides, the act makes all the provisions of chap. 32, Rev. Stat., relating to the support of insane persons and the liability of counties therefor, applicable, as far as practicable, to persons admitted to the home for the feeble minded. § 4. Since the chapter of the Revised Statutes so made applicable has little or 4. It is contended that the authority thus given to the county by the act in question to donate to the state "money or other securities for the establishment and building of such home" was contrary to public policy, and therefore void. This court has held that "the legislature may impose conditions precedent to the removal of a county seat, in addition to those imposed by the state Constitution." State, Park, v. Portage County Supers. Wis. 49. In that case the act which was held valid provided, in effect, that, after a majority of the votes should be cast in favor of removing the county seat to the city of Stevens Point, yet it should not be so removed until that city should first place at the control of the county board $10,000, with which to build county 24 buildings at that place. To the same effect is Pepin County v. Prindle, 61 Wis. 311-314. Such donations have been sanctioned in several states. Id., and cases there cited; Beham v. Ghio, 75 Tex. 87. The donation here authorized was merely to secure a site for the home, and in no way affected the efficiency and successful operation of the institution when estab lished. Upon the authorities cited, we must bold that the authorizing of such donation was not against public policy. legislature has no power, against the will of a 5. The principal contention is that the authorization of such donations was repugnant to that clause of our Constitution which declares that "the rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe." § 1, art. 8. This provision manifestly requires such uniformity, in case of a state tax, to extend throughout the state; in case of a County tax, to extend throughout the county; in case of a city tax, to extend throughout the city; and, in case of a town tax, to extend throughout the town. In other words, the rule of uniformity is not broken merely be cause a town or city or county raises a special tax for local purposes. If the proposed tax to pay the $12,700 in securities donated by Chippewa county may properly be regarded as a County tax, then the question of uniformity is not involved, since there is no pretense that, in levying that tax upon the taxable property in that county, any other than such uniform rule is to be followed. It is sought to bring the case within the condemnation of the constitutional provision quoted, on the theory that the proposed home is to be a state institution; 6. Since the securities authorized to be dothat it is to be governed, controlled, and man nated in the case at bar are securities issued by aged wholly by state officers and agencies; that the county, and since the proposed taxes in it is to be established, built, and maintained payment of the same are to be county taxes, by all the taxpayers and taxable property the precise question presented is whether throughout the state, including such property the purpose for which such securities were and taxpayers in Chippewa county; that the donated, and for which such taxes are state would have had no power, by direct action, to be raised, is such as to justify the proto 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 mainte- the legislature authorizing municipalities nance; 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. tution, it could not have done directly. It is Tappan, supra. In those cases it was, among certainly to be a state institution; to be gov. other things, in effect, held that while the erned, controlled, and managed by the state; legislature cannot create a public debt, or levy and to be established, built, and maintained a tax, or authorize a municipal corporation to by the state. But it does not follow that the do so, in order to raise funds for a mete pristate could not authorize a municipality in vate purpose," and while "the objects for which it should be located to do what the 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 character of such municipalities,—interest and wellbeing of the community reas agencies of the state government and as "corporations endowed with capacities, and permitted to hold property and enjoy peculiar privileges for the benefit of their corporators exclusively," Mr. Cooley says: "The legisla ture may permit the incurring of expense, the contracting of obligations, and the levy of taxes which are unusual, and which would not be admissible under the powers usually conferred. Instances of the kind may be mentioned in the offer of military bounties, and the payment of a disproportionate share of a state burden in consideration of peculiar local benefits which are to spring from it. But it is believed the quired to contribute," yet "to justify a court in declaring a tax void, and arresting proceedings for its collection, the absence of all possible public interest in the purposes for which the funds are raised must be so clear and palpable as to be immediately perceptible to every mind:" that "claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will support a tax;" that "the legislature may authorize a town or other municipality to levy taxes therein for public purposes not strictly of a municipal character, but from which the public have received, or will receive, some direct advantage, or where the tax is to be expended in defraying the expenses of the government, or in promoting the peace, good order, and welfare of society, or in paying claims founded upon nat ural justice and equity, or upon gratitude for public services or expenditures, or in discharging the obligations of charity and humanity.' True, in Whiting v. Sheboygan & F. du L. R. Co. 25 Wis. 167, 3 Am. Rep. 30, two of the three members of this court, as then constituted, held that an act authorizing a county to issue its orders in aid of the construction of a railroad therein, and to levy a tax to pay such orders, without becoming a stockholder in the company, was invalid, on the ground that such orders and tax were for a private purpose. But that case was expressly overruled, and the same act of the legislature was held valid, by the Supreme Court of the United States, on the ground that such railroad was a public high way, and hence the purpose of such county or ders and county taxes in aid of its construction was for a public purpose. Olcott v. Fond du Lac County Supers. 83 U. S. 16 Wall. 678, 21 L. ed. 382. That decision has steadily been adhered to since, and seems to be in harmony with the rule established in most of the states. Humbird v. Jackson County Supers. 154 U. S. 592, 38 L. ed. 1089; Roberts v. Northern P. R. Co. 158 U. S. 17, 39 L. ed. 879, Affirming Northern P. R. Co. v. Roberts, 42 Fed. Rep. 734; Folsom v. Township Ninety Six, 159 U. S. 628, 40 L. ed. 284, and cases there cited. Whatever force may be given by this court to the decision of Whiting v. Sheboygan & F. du L. R. Co. it is manifest that it ought not to be extended. Counsel cite State, Board of Edu., v. Haben, 22 Wis. 660, where it was held that "money raised in a city, by taxation, for the purpose of erecting a high-school building, cannot be diverted by an act of the legislature, without the assent of the city or its inhabitants, to the purchase of a site for a normal school in said city. That decision does not tend to invalidate the act in question, but rather tends to support it. This is apparent from two extracts from the opinion of Dixon, Ch. J., in that case, where he said: "To say that the legislature can, without the assent of the proper municipal authorities or of the inhabitants, take the money of the city of Oshkosh, and appropriate it to the establishment of a state normal school, is to say that it can take the money of any municipal corporation, and apply it to any general state purpose. The advantages incidentally accruing to the citizens of Osh kosh from the establishment of a state nor mal school at that place, though sufficient, with the consent of the legislature, to justify the citizens themselves, or the proper munici 34 L. R. A. pal officers, in levying a tax to aid in the purchase of a site or the erection of buildings, do not change the nature of the question here presented." See Gordon v. Cornes, 47 N. Y. 608. In Curtis v. Whipple, 24 Wis. 350, the act to empower the town to raise money by taxation for the benefit of Jefferson Liberal Institute, a private corporation, was held invalid by two members of the court on the ground that it was "essentially a private educational institution,” and by the other member of the court "mainly on the ground that the constitutional provisions for public schools of every grade" were exclusive. To the same effect, Cole v. La Grange, 113 U. S. 1, 28 L. ed. 896. In Living. ston County v. Darlington, 101 U. S. 407, 25 L. ed. 1015, an act of the legislature of Illinois establishing a state reform school, and authorizing municipal corporations to donate money to secure the location of the same within their limits, was sustained and held valid, there being no settled or uniform decision to the contrary by the supreme court of that state. In Indiana, legislation authorizing counties to make donations for the purpose of securing the location of an agricultural college within their jurisdiction was held valid; and it was there further held that an obligation by the county for such purpose was "solely a county purpose, local in its nature, and properly assessed and collected as are taxes for other county purposes." Marks v. Purdue University, 37 İnd. 155, Id. 56 Ind. 288. So it has been held in Massachusetts that the legislature have power to pass an act authorizing a town to raise money for the establishment of an agricultural college therein. Merrick v. Amherst, 12 Allen, 500. See also State v. Nelson County, 1 N. D. 88; Cooley, Const. Lim. 230, 231. In the case at bar it must be conceded that the establishment and building of the Wisconsin Home for Feeble-Minded was and is a public purpose. It must also be conceded that there are peculiar and special benefits which will naturally spring from such location. This is manifest from the fact that numerous such municipalities, by a tender of such donations, entered into competition for such location. The right of convenient visitation by friends of the unfortunate inmates is of itself a valuable right. Without further specification or discussion, we must hold the provisions of the act in question to be valid. The order of the Circuit Court is reversed, and the cause is remanded, with direction to sustain the demurrer, and for further proceedings according to law. Rehearing denied. NOTE.-Liability of baggage transfer companies. L. As common carriers. II. When liable. III. Limitation of liability. V. The effect of a custom. The question of the liability of baggage transfer companies rests upon the same principles as that of other common carriers, and is determined in like manner. They are liable according to the manner in which they hold themselves out and transact their business. Messrs. Methvin & Kelly for appellee. In Robinson' v. Cornish, supra, the defendant,'a city expressman having a license to carry on such business in the city of New York, had a parcel delivered to him by the plaintiff for carriage between points in said city, which package was received by his driver and was lost or stolen from his wagon. Upon suit brought to recover its value it was held that he was liable as a common carrier, or if not as such, he was still liable as a private carrier, or as a bailee for hire, on the theory of negligence. Where a railroad passenger on arriving at his destination entered into a contract with a transportation company for an agreed price to procure his baggage from the railroad company's depot and The holding of the court in the principal case of ANNISTON TRANSFER CO. v. GURLEY, is in har-haul it to his residence, and surrendered his bagmony with the prior decisions. I. As common carriers. gage checks to such company, it was held that the transportation company was liable for the safe keeping of the baggage and for its safe delivery, a contractual relation existing between the parties which the passenger might enforce by action and sequestration. De Ponte v. New Orleans Transfer The question whether a baggage transfer company is or is not a common carrier must be determined by the following general principles laid down in cases wherein the question has been dis-Co. 42 La. Ann. 696. cussed. A person who makes it a business to solicit from the public the carriage of trunks and packages from place to place for hire is to all intents and purposes a common carrier. Robinson v. Cornish, 34 N. Y. S. R. 695. The test is, whether he holds out, either expressly or by a course of conduct, that he will carry for bire the goods of all persons indifferently who send them to him. Ibid. A truckman who transfers from place to place the goods of all choosing to employ him is a common carrier, even though his charges be not fixed as to the amount. Jackson Architectural Iron Works v. Hurlburt, 15 Misc. 93. In this case the court followed the ruling in the earlier cases of Richards v. Westcott, 2 Bosw. 589, and Allen v. Sackrider, 37 N. Y. 341, and although it was not one in which baggage was transported, yet it is here cited as showing a bearing upon the question in hand. But if the defendant or party hired to carry does not follow such calling as a general or habitua] business, but carries the articles in question under a special contract, he will not be liable as a common carrier, but only upon his contract. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393. In Richards v. Westcott, supra, it was proved that the trunk was delivered to the defendant company, who carried trunks for hire between the depots in the city, to be carried to the passenger depot of the railroad company to accompany the plaintiff's agent on his journey, and that by reason of the defendant's negligence the trunk was not delivered at the depot. It was held that the defendants were common carriers and liable as such. The case of Parmelee v. Lowitz, 74 Ill. 116, 24 Am. Rep. 276, was an action to recover the value of articles in a trunk delivered by the appellee to the appellant to be carried for hire from the depot to the appellee's residence. In affirming the judgment of the court below in favor of the appellee, the court held that the appellant was a common carrier and as such was bound to carry the trunk and its contents safely, though it was not such as was usually carried by him as baggage, there being no fraud or deception practiced by the appellee as to the contents of the trunk, the appellant not inquiring as to such contents, and the appellee not being under a special obligation to make the contents known. And although hotel proprietors and innkeepers are not generally carriers, yet in cases where they have engaged to carry or transport the baggage of their guests from their premises to the depots the courts have looked upon them as such. In Dickinson v. Winchester, 4 Cush. 114, 50 Am. Dec. 760, an innkeeper who, by public notice, engaged to carry all guests and their baggage free from the depot to his house, and vice versa, was held liable for the baggage of a guest lost by the negligence of the driver of the hack, the court basing its opinion upon the principles of the doctrine of estoppel, the innkeeper by reason of his notice being looked upon as making the driver his agent or servant. In this case, however, the question as to whether or not the innkeeper was to be held responsible by reason of his having engaged in such business, or whether he was responsible as a common carrier, was mooted but not decided by the court. In Dibble v. Brown, 12 Ga. 217, 56 Am. Dec. 460, Head, J., delivered the opinion of the court: We are satisfied, from the testimony, which is practically without dispute on this point, that the contract between the parties was that the defendant company should carry the plaintiff's trunk to the depot, and deliver it there to the baggage agent of the railroad company. The plaintiff herself testified that the trunk was delivered to the defendant's driver, "to be deposited in the baggage room of the Ga. Pacific R. R.;" and her son in-law, Robinson, who acted for her, says he informed the defendant's general manager that he wanted the trunk carried to the Georgia Pacific depot, and, furthermore, that, when he accompanied the plaintiff to the train, the next morning, he inquired for the trunk of the baggage agent of the Georgia Pa cific Railroad, at the depot in Anniston where he had ordered the trunk to be taken. We have only to decide whether the defendant performed that contract; and we are clearly of the opinion that it did perform it fully, both in its letter and spirit. The testimony shows, without conflict, that the driver, Joe Lindsay, immediately upon receiving the trunk, carried it to the depot, and put it on the covered platform between the passenger and baggage departments, in front of the door of the baggage room, at the place, and only place, set apart and especially designated by the baggage agent for the deposit of baggage to be received by him for the railroad, and where the railroad company had, for a long time been accustomed to receive baggage. The driver, Lindsay, testifies that he called the attention of the defendant was a proprietor of an omnibus which | upon the train, handing him a ticket in return ran from his hotel, at which the plaintiff stopped, to the railroad depot. The baggage for the loss of which the action was brought, was received by the defendant at his hotel and brought out by his servants to be sent to the depot with the plaintiff. It was held that the proprietor was liable as a common carrier for such baggage, he being a common carrier of passengers. And the case of Dickinson v. Winchester, supra, established the doctrine that the keeper of a public house, giving notice that he will furnish free con- | veyances to and from the depot to all passengers with their baggage who stay at his house, and who for that purpose engages the proprietors of carriages to carry such passengers free of charge to them, will be held liable for the loss of a passenger's luggage incurred through the negligence of the carriage proprietors, their drivers or servants. In that case the court stated that the question whether the defendant was to be considered liable either as an innkeeper or as a common carrier was immaterial, as he was liable in either capacity. As to who are common carriers, see note to Staub v. Kendrick (Ind.) 6 L. R. A. 619; and to Browning v. Goodrich Transp. Co. (Wis.) 10 L. R. A. 415. II. When liable. Inasmuch as baggage transfer companies are considered as common carriers, it follows that their responsibility is the same. They are bound to deliver the baggage intrusted to their care according to the terms of their contract, and will be liable for negligence in case of a neglect of such duty. In Southern Exp. Co. v. Armstead, 50 Ala. 350, the express company was held liable as a common carrier for a trunk taken for hire and delivered by them upon the railroad company's platform, without leaving it in charge of any person, such an act being considered gross negligence. therefor. The baggage being lost, it was held in an action to recover damages for the same, that the defendant was liable no matter whether he was a common or a private carrier, there being proof of want of ordinary care on his part without any proof of ordinary negligence on plaintiff's part. In Springer v. Westcott, 2 App. Div. 295, the plaintiff, while a passenger by railroad, delivered the check for her trunk to the defendant's agent, with instructions to procure her baggage and deliver it at a certain address, taking the usual receipt. The trunk was delivered to her soiled, broken, and empty, and had the defendant's usual yellow label thereon. On the trial in the court below verdict was rendered for the defendant, but upon appeal it was reversed and a new trial ordered, the court stating that it was for the defendant to show that the trunk was in such a condition when received by him from the railroad company, and that in the absence of such a showing the presumption was that it was in good condition when received by him, the case being one for the jury upon the evidence. Under $383, N. Y. Rev. Ord. 1881, a person who has a license from the mayor to use and employ express wagons in the conveyance and transportation of goods from place to place in a city for hire, wages, or pay, upon conforming to and obeying in all respects the ordinances of the common council, is responsible for all articles intrusted to the drivers of his wagons. Robinson v. Cornish, 34 N. Y. S. R. 695. See also supra, I. III. Limitation of liability. The question whether or not such companies can limit their liability would seem to depend, as in other cases of common carriers, upon the question of assent on the consignor's part, for when a limIn the above case the express company, who at itation of liability is indiscriminately made, no prefirst declined to receive the articles, as it had no sumption of assent can or ought to be indulged. agent to receive them at the depot and the railroad Southern Exp. Co. v. Armstead, 50 Ala. 350, 352. company had refused the use of its depot, subse- An express company, or a baggage transfer comquently took the goods and marked them at "own-pany, cannot by the use of a general printed reer's risk" without the knowledge or consent of the consignor, but the consignee had knowledge of such facts. It was held that such facts did not relieve it from responsibility. A student's manuscript books are baggage for which an expressman will be liable as a common carrier when lost through his negligence, if contained in such student's trunk. Hopkins v. Westcott, 6 Blatchf. 64. In Verner v. Sweitzer, 32 Pa. 208, the defendant's agent, whose business it was to board all trains at the depot and collect passengers' baggage checks, took from the plaintiff his checks for baggage | ceipt, limit its liability so as to relieve itself from |