Errors assigned material to be noticed are as follows: 1. That the court erred in directing the jury to return a verdict in favor of the plaintiffs for the amount of the policy and interest. 2. That the court should have directed the jury to return a verdict the other way, as the law of the case was with the defendants. 3. That the court erred in not submitting the questions of fact to the jury whether the plaintiffs were so far the sole, entire, and unconditional owners of the property insured as to be entitled to recover in view of the evidence.

Authorities to prove that a fee-simple estate is the highest tenure known to the law is quite unnecessary, as the principle is elementary and needs no support, nor is any argument necessary to show that the title of the plaintiffs to the land where the buildings stood was of that character, as that is admitted in the bill of exceptions, which constitutes a part of the record. Concede that, and it follows that the plaintiffs were, within the meaning of the policy, the entire, unconditional, and sole owners of the land where the buildings stood, for their own use and benefit, at the time of the fire; and if so, the prima facie presumption must be that they held the title of the buildings by the same fee-simple title, in the absence of any evidence in the case to controvert that conclusion. None certainly was introduced by the defendants and it is not pretended that there is any thing in the proofs introduced by the plaintiffs to support any different theory, except the lease referred to in the evidence offered to prove the loss.

Land-owners under a fee-simple title, in the absence of any proof to the contrary, are certainly presumed to be the owners of the buildings erected and standing on the premises, the rule being that the buildings and the lands together are known as real estate, and the buildings, where nothing is shown to the contrary, are presumed to be held by the fee-simple owner of the land by the same title as the land on which the buildings are situated, from which it follows that the plaintiffs being the owners in fee of the same are also the owners in fee of the buildings, unless there is something in the terms of the lease to disprove that theory; and it is equally clear that if they are the entire, unconditional, and sole owners of the buildings as well as of the land, the assignment of error must be overruled.

Nor is any thing contained in the lease to support any different theory. Instead of that the lease shows that the plaintiffs were the owners of the land and that the contractor agreed to erect the ten buildings on the land for the owners; nor does it make any difference that the owners of the land contracted with the builder that they, when the buildings were erected, would lease the same to him for the term of ten years. Buildings of every kind are frequently erected by land owners to be rented, nor is it any thing uncommon that the contract for lease should be made before the buildings are erected or that the contract for a lease should be blended with the contract for erecting the building, as in this case. Leases of the kind are not uncommon, nor is there any thing in the terms of the instrument to countenance the theory that the title of the plaintiffs did not remain as beforea feesimple title, as described in the admission of the defendants.

In the words of the contract the lessee agreed to proceed at once to erect ten buildings on the land therein described, to cost not less than twenty-four thousand

dollars, for the other party to the instrument, and "to receive payment for the same at the times and in the manner therein described," which of itself shows to a demonstration that the buildings when erected became the property of the plaintiffs, as the terms of the instrument, called a lease, show that the buildings were erected for the plaintiffs on their land, and that they paid the agreed price for their erection. Decided support to that theory is also derived from another clause of the lease, by which the lessee bound himself to insure the buildings during the time employed in their erection, in the name and for the benefit of the plaintiffs, and to deposit the policies in their keeping and possession. Policies were to be taken out and kept in force in the sum of thirteen thousand dollars, in the name and for the benefit of the lessors, during the continuance of the lease, in companies to be approved by the plaintiffs, and the stipulation was that the policies should be deposited with the lessors of the property. Other evidence to support the theory of the defendants is entirely wanting, the record showing that they offered no evidence at the trial, and inasmuch as the terms of the lease show that the plaintiffs owned the land in fee simple and that they contracted to have the buildings erected and paid for their erection and caused them to be insured in their own name and for their own benefit, it is clear that the supposed defense that the plaintiffs were not the entire, unconditional, and sole owners of the buildings, utterly fails, and that the charge of the court directing a verdict for the plaintiffs is correct.

Attempt is made in this case to maintain the theory that the plaintiffs are not the entire owners of the property, because it was under lease both when the policy was issued and at the time of the loss, but it is clear that the theory has no foundation in law or justice. Nor can the theory be sustained which attempts to separate the ownership of the buildings from the land, which it is admitted is vested in the plaintiffs by a fee-simple title. Such an assumption is contrary to the facts exhibited in the record and can no more be supported than that the lessees of stores, tenementhouses, or other buildings in our large cities own the same by mere possession or occupancy of the particular store, tenement, or building included in the lease they hold from the owner.

Thousands of cases arise where dwelling houses, stores, and other buildings of every kind, are leased to occupants, for longer or shorter periods of time and upon still more varying conditions and stipulations, and yet the owners procure insurance upou the same without mentioning the names of the lessees in the policies, or ever suspecting that they have omitted any duty, or been guilty of any concealment or neglect. Insurance companies set up no such pretense, and if they should do so, they would find no support to such a theory in the courts of justice.

Stores and other buildings are sometimes erected by their owners upon leased lands, without any other title than what is derived from their lease, which is a very different thing from the case where the owner, both of the land and the building, leases the estate to the occupant for a term of years, without parting with the fee-simple title to the land or the building. Feesimple ownership in such a case is matter of importance to the insurer, especially if the company is a mutual one, as such companies usually have a lien on the premises for the payment of the premium; nor is the ownership of the land an immaterial matter even

if no such lien arises as it furnishes an important element to enable the company to determine whether it is expedient to take the risk.

Considerations of the kind, it may be presumed, induced the defendants to insert the condition in the policy of the plaintiffs, "that if the buildings stand on leased ground it must be so represented to the company, and must be so expressed in the written part of the policy, otherwise the policy shall be void." Nothing of the kind is pretended in this case, and if it were, it could not be sustained for a moment, as it is admitted in the record that the plaintiffs were the owners in fee of the land where the buildings stood at the time of the fire.

Adjudged cases are invoked to sustain the theory of the defense, but none of those cited support the proposition involved in the theory. Examples of the kind are Gahagan v. Ins. Co., 43 N. H. 177, and Warner v. Ins. Co., 21 Conn. 444, both of which are cases where the insured represented that the property covered by the policy was free and unincumbered, when in fact it was incumbered by mortgage. May on Ins., § 290; Towne v. Ins. Co., 7 Allen, 51.

Cases are also cited where the insured had only a bond for a deed, or only a leasehold interest, and where the insured procured a policy as the absolute owner of the property in the face of those facts. Ins. Co. v. Wright, 22 I11. 474; Smith v. Ins. Co., 6 Cush. 448: Brown v. Williams, 28 Me. 262; Hinman v. Ins. Co., 36 Wis. 167.

Much discussion of such authorities is not required, as it is clear they do not favor the theory of the defendants. Nor does the case of Smith v. Ins. Co., 17 Penu. St. 253, aid the defendants, as it is clear that if a mortgagee insures his interest in the premises, he is bound, under a provision, calling for incumbrances, affecting his interest, to state prior mortgages on the same premises. May on Ins., § 293.

Misrepresentations of material facts of course avoid a policy, but there were none such in the case before the court. Ins. Co. v. Lawrence, 10 Pet. 516, cited by the defendants.

Where the policy contained the provision that if the property to be insured is held in trust, or on commission, or is a leasehold interest, or an equity of redemption, or if the interest of the insured in the property is any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the insured, it must be so represented to the company and be so expressed in the written part of the policy, otherwise the policy shall be void, the Supreme Court of Illinois held, in a case where it appeared that the property had been sold under judgment and execution against the insured, that the non-disclosure of the sale and purchase avoided the policy, though the period allowed for redemption had not expired. Ins. Co. v. Brennan, 58 Ill. 158.

By the sale and purchase in that case nothing was left in the insured but the right of redemption, which would expire in one year from the sale, and it was well held by the court that the paramount title being in a third person, it could not be truthfully said that the insured had, at the date of the insurance, "the entire, unconditional, and sole ownership of the property."

Beyond all doubt the property in the case under consideration vested in the lessors, and if so, the two cases cited by the defendants, of Mayor v. Ins. Co., 10 Bosw. 545, and Mayor v. Ins. Co., 9 id. 434, are au

thorities in favor of the plaintiffs, as the facts in this case show that the property, in the true sense of insurance law, belonged to the insured at the date of the policy. Ins. Co. v. Kelly, 32 Me. 438; Hubbard v. Ins. Co., 33 Iowa, 333.

Unless the true ownership or interest in the property is required by the conditions of the policy to be specifically and with particularity and accuracy set forth, it will in general be sufficient if the insured has an insurable interest under any status of ownership or possession, in cases where no inquiries are made at the time the application is presented or the policy is executed. May on Ins., § 284.

No inquiry was made in this case, although it appears that the agent of the company who took the insurance resided in Chicago, where the buildings were situated; nor did the defendants offer any evidence at the trial to show that the unincumbered fee-simple title was not in the plaintiffs at the time the buildings were destroyed by the fire; nor did the defendants request the court at the trial to give the jury any instructions upon the subject. On the contrary, they admitted at the trial that the plaintiffs were the owners in fee of the land on which the buildings insured stood, leaving it to be inferred by the jury that the plaintiffs were also the owners in fee of the buildings.

Enough appears in the terms of the instrument, called the lease, to show that both the lessee and lessors treated the buildings "during the process of erection" as the property of the plaintiffs, and to show beyond controversy that the buildings when completed vested in the plaintiffs as their absolute property, subject only to the right of the builder to occupy and use the same, just as in the ordinary case where the owners of property agree to lease the same to be used by the lessee for a stipulated rent.

Lessees holding under an ordinary parol lease do not acquire such an interest in real estate so leased as to avoid a policy issued to the lessor, even though the insured failed to represent the matter to the company in a case where no inquiries were made of the applicant, at the time the policy was issued, as to the true character of the title or occupancy of the insured premises, and where no pretense is shown that the insured has been guilty of any fraud or misrepresentation.

Such a lease is a mere chattel interest, being reckoned as part of the personal estate of the lessee, and in case of the death of the lessee goes to his executors and not to the heirs-at-law, as appears by all the authorities. 2 Bl. Com. (Cooley's ed.) 143. Ex parte Gay, 5 Mass. 419; Brewster v. Hill, 1 N. H. 351; Bisbee v. Halt, 3 Ohio, 463; Dillingham v. Jenkins, 7 S. & M. 487; Spangler v. Stanler, 1 Md. Ch. Decis. 36.

Leases for years, says Taylor, are considered chattel interests arising out of a contract between the parties, and pass only a transient interest in the land, which is not a freehold, and might originally be made at common law by parol for any certain period. Taylor's L. & T. (6th ed.), 22; Moshier v. Reding, 12 Me. 482; Maverick v. Lewie, 3 McCord, 216; Carwell v. Dietrich, 15 Wend. 379; Chapman v. Black, 5 Scott, 533; Waller v. Morgan, 18 B. Monr. 141.

Two requisites, says Blackstone, were necessary to make a fief or feud: 1. Duration as to time. 2. Immobility as to place; and he adds that whatever was not a feud was accounted a chattel.

Chattels real, says the same commentator, are such

as concern or savor of the realty, including terms for years, and are called real chattels, as being interests arising out of, or being annexed to, real estate, of which they have one quality, to wit, immobility, but want the quality of indeterminate duration, the want of which constitutes them chattels. 2 Bl. Com. 386; 2 Kent's Com. (12th ed.) 342; 5 Bacon's Abr. (Bouvier ed.) 434; 2 Comyn's Dig., Biens a.; 1 Chitt. Gen. Prac. 244; Co. Litt. 46, 118 b.

Terms of years belonging to a testator or intestate vest in his executor or administrator without any entry, for the reason that in contemplation of law such interests are chattels. Woodfall's L. & T. (9th ed.) 239; Watterton v. Hakewell, 3 Man. & Gr. 297; Atkinson v. Humphrey, 2 C. B. 644; Ins. Co. v. Kelly, 32 Md. 438.

Insurers, if they desire to object to such a risk, should make inquiries of the applicant and should not admit at the trial, without qualification, that the insured was the owner in fee of the land, in a case where they offer no evidence in defense.

Judgment affrmed.

INJURIES TO PASSENGER TRAVELING ON FREE PASS.

SUPREME COURT OF THE UNITED STATES - OCTOBER TERM, 1877.

GRAND TRUNK RAILWAY Co, plaintiff in error, v. STEVENS.

Plaintiff below was negotiating, at Portland, Me., with defendant below, a railroad company, for the introduction on its road of a patent car-coupling, and was requested by defendant to go to Montreal and see one of its officers there, defendant agreeing to pay his expenses. He was given a pass directing conductors to pass him from Portland to Montreal. The pass contained this condition: "The person accepting this free ticket in consideration thereof assumes all risk of all accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss or injury to the property of the passenger using the ticket. If presented by any other person than the individual named therein, the conductor will take up this ticket and collect fare." While traveling from Portland to Montreal, on this pass, on one of defendant's trains, plaintiff was injured by defendant's negligence. Held, that plaintiff was carried for hire, in pursuance of an agreement, and not as a gratuitous passenger; (2) that it was not competent for defendant to stipulate against liability for its own negligence in such a case, and it was liable for the injury.

IN error to the Circuit Court of the United States for

the district of Maine. The facts appear in the opinion.

Mr. Justice BRADLEY delivered the opinion of the court.

This was an action on the case for negligence, brought to recover damages for injuries received by the plaintiff (now defendant in error) whilst a passenger in the defendant's cars. The plaintiff, being owner of a patented car-coupling, was negotiating with the defendant at Portland, Maine, for its adoption and use by the latter; and was requested by the defendant to go to Montreal to see the superintendent of its car department in relation to the matter, the defendant offering to pay his expenses. The plaintiff consented to do this, and in pursuance of the arrangement, he was furnished with a pass to carry him in the defendant's cars. This pass was in the usual form of free passes, thus: "Pass Mr. Stevens from Portland to Montreal," and signed by the proper officer. On its back was the following printed indorsement:

"The person accepting this free ticket in consideration thereof assumes all risk of all accidents, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss or injury to the property of the passenger using the ticket. If presented by any other person than the individual named therein, the conductor will take up this ticket and collect fare."

The plaintiff testified that he put the pass into his pocket without looking at it, and the jury found specially that he did not read the indorsement previous to the accident, and did not know what was indorsed upon it. He had been a railroad conductor, however, and had seen many free passes, some with a statement on the back, others without.

During the passage from Portland to Montreal, the car in which the plaintiff was riding ran off the track and was precipitated down an embankment and the plaintiff was much injured. The direct cause of the accident, according to the proof, was that at the place where it occurred, and for some considerable distance in each direction, the bolts had been broken off the fish-plates which hold the ends of the rails together so that many of these plates had fallen off on each side, leaving the rails without lateral support. The consequence was that the track spread and the cars ran off as before stated. There was also evidence that at this place the track was made of old rails patched up.

The above facts appeared on the plaintiff's case, and the defendant offered no evidence, but requested the court to instruct the jury as follows:

1. That if the plaintiff at the time of sustaining the injury was traveling under and by virtue of the pass produced in evidence in the case, he was traveling upon the conditions annexed to it.

2. That if the plaintiff at the time of sustaining the injury was traveling under and by virtue of the pass produced in evidence in the case, the defendants are not liable.

3. That if the plaintiff at the time of sustaining the injury was traveling as a free passenger, the defendants are not liable.

4. That if the plaintiff at the time of sustaining the injury was traveling as a gratuitous passenger, without any consideration to the defendants for his transportation, the defendants are not liable.

The court refused these instructions as inapplicable to the evidence produced, and instructed the jury as follows, viz. :

That if the jury find that in May, 1873, the plaintiff was interested in a car-coupling, which had been used on the cars of the defendant since December previous, and that the officers of the company were desirous that the plaintiff should meet them at Montreal, to arrange about the use of such couplings on their cars by defendant, and they agreed with him to pay his expenses if he would come to Montreal, and he agreed so to do, and took passage on defendants' cars, and was by the reckless misconduct and negligence of the defendant, and without negligence on his part, injured whilst thus a passenger in defendants' car, the defendants are not exonerated from liability to plaintiff for his damages occasioned by such negligence, by reason of the indorsement upon the pass produced in evidence.

It is evident that the court below regarded the case as one of carriage for hire, and not as one of gratui

tous carriage, and that no sufficient evidence to go to the jury was adduced to show the contrary; and hence, that under the ruling of this court in the case of Railroad Company v. Lockwood, 17 Wall. 357, it was a case in which the defendant, as a common carrier of passengers, could not lawfully stipulate for exemption from liability for the negligence of its servants. In taking this view, we think the court was correct. The transportation of the plaintiff in the defendant's cars, though not paid for by him in money, was not a matter of charity nor of gratuity in any sense. It was by virtue of an agreement, in which the mutual interest of the parties was consulted. It was part of the consideration for which the plaintiff consented to take the journey to Montreal. His expenses in making that journey were to be paid by the defendant, and of these, the expense of his transportation was a part. The giving him a free pass did not alter the nature of the transaction. The pass was a mere ticket, or voucher, to be shown to the conductors of the train, as evidence of his right to be transported therein. It was not evidence of any contract by which the plaintiff was to assume all the risk; and it would not have been valid if it had been. In this respect it was a stronger case than that of Lockwood's. There the pass was what is called a "drover's pass," and an agreement was actually signed, declaring that the acceptance of the pass was to be considered as a waiver of all claims for damages or injury received on the train. The court rightly refused, therefore, in the present case, to charge that the plaintiff was traveling upon the conditions indorsed on the pass; or that, if he traveled on that pass, the defendant was free from liability. And the court was equally right in refusing to charge, that if the plaintiff was a free, or gratuitous passenger, the defendant was not liable. The evidence did not sustain any such hypothesis. It was uncontradicted, so far as it referred to the arrangement by virtue of which the journey was undertaken.

The charge actually given by the court was also free

from material error. It stated the law as favorably

If

for the defendant as the latter had a right to ask. subject to any criticism, it is in that part in which the court supposed that the jury might find that the plaintiff was injured by the reckless misconduct and negligence of the defendant. If this degree of fault had been necessary to sustain the action, there might have been some difficulty in deducing it from the evidence. However, the condition of the track where the accident took place, without any explanation of its cause, was perhaps sufficient even for such an inference. If the defendant could have shown that the injury to the rails was the result of an accident occurring so shortly before the passage of the train as not to give an opportunity of ascertaining its existence, it did not do so; but chose to rest upon the evidence of the plaintiff. In fact, however, negligence was all that the plaintiff was bound to show; and of this there was abundant evidence to go to the jury. On the whole, therefore, we think that the charge presents no sufficient ground for setting aside the verdict. The charge, if not formally accurate, was not such as to prejudice the defendant.

It is strongly urged, however, that the plaintiff, by accepting the free pass indorsed as it was, was estopped from showing that he was not to take his passage upon the terms therein expressed; or, at

least, that his acceptance of the pass should be regarded as competent if not conclusive evidence that such a pass was in the contemplation of the parties when the arrangement for his going to Montreal was made. But we have already shown that the carrying of the plaintiff from Portland to Montreal was not a mere gratuity. To call it such would be repugnant to the essential character of the whole transaction. There was a consideration for it, both good and valuable. It necessarily follows, therefore, that it was a carrying for hire. Being such, it was not competent for the defendant, as a common carrier, to stipulate for the immunity expressed on the back of the pass. This is a sufficient answer to the argument propounded. The defendant being, by the very nature of the transaction, a common carrier for hire, cannot set up, as against the plaintiff, who was a passenger for hire, any such estoppel or agreement as that which is insisted on.

Since, therefore, from our view of the case, it is not necessary to determine what would have been the rights of the parties if the plaintiff had been a free or gratuitous passenger, we rest our decision upon the case of Railroad Company v. Lockwood. We have no doubt of the correctness of the conclusion reached in that case. We do not mean to imply, however, that we should have come to a different conclusion, had the plaintiff been a free passenger instead of a passenger for hire. We are aware that respectable tribunals have asserted the right to stipulate for exemption in such a case; and it is often asked with apparent confidence, "May not men make their own contracts, or in other words, may not a man do what he will with his own?" The question, at first sight, seems a simple one. But there is a question lying behind that: "Can a man call that absolutely his own, which he holds as a great public trust, by the public grant, and for the public use as well as his own profit?" The business of the common carrier, in this country at least, is emphatically a branch of the public service; and the conditions on which that public service shall be performed by private enterprise are not yet entirely settled. We deem it the safest plan not to anticipate questions until they fairly arise and become necessary for our decision.

The judgment of the Circuit Court is affirmed.

EXAMINATION OF DEBTOR IN COMPOSITION PROCEEDINGS.

In

UNITED STATES DISTRICT COURT, MASSACHUSETTS, FEBRUARY, 1878.

RE WALTER PROBY.

proceedings for composition under the bankrupt law the register has power to conduct the inquiries allowed to be made of the debtor, to take down the substance of the answers, and to adjourn the meeting with and sometimes without the consent of parties, but he has not power to conduct a written examination of great length, nor to extend the inquiries to the extent that would be proper in bankruptcy.

PROCEEDINGS for composition. Application for

certificate whether examination of debtor shall be continued. The opinion states the case. W. P. Fowler, for the debtor.

Bicknell & Stacy, for the creditor.

LOWELL, J. The bankrupt offered a composition, and a meeting was called to consider it. A creditor wished to examine the debtor, and, no objection being

made, he has been examined from time to time, in writing, at sundry adjournments of the meeting. At the last hearing the debtor objected that the examination was being carried on at great and unnecessary length, and asked for a certificate whether it should proceed further, and this question has been argued.

The statute says the debtor, unless prevented by sickness or other cause, satisfactory to the meeting, shall be present at the same, and shall answer any inquiries made of him. This is taken from the law of England; and in that law the proceeding is not one in bankruptcy, and the inquiries are not answered on oath, and there is no power to adjourn a meeting excepting by such a vote as would be sufficient to adopt a resolution for composition; but the creditors may obtain an order for examination afterward upon making out a prima facie case of fraud. See Ex parte Levy, L. R., 11 Eq. 619; Ex parte Jones, L. R., 16 Eq. 386; Ex parte Till, L. R., 10 Ch. 631. We have copied the words, but have varied the practice somewhat. Our courts have held that the debtor should answer on oath, and that the register has power to adjourn a meeting. See Re Holmes v. Lisberger, 12 N. B. R. 86. Notwithstanding these differences, our statute does not, in my opinion, intend that the debtor, as it carefully calls him, should undergo a regular written examination, upon things in general, like one in bankruptcy. In the first place the meeting may excuse his attendance altogether, which will effectually defeat all inquiry; in the next, the proceeding is plainly intended to be summary, and to settle, so far as the voting is concerned, whether the creditors will accept the propositions made them. In theory the creditors are attending all this time, waiting to vote, and they must attend each adjournment or lose their vote. No doubt the attendance may be and, perhaps, almost always is by proxy, but that does not help me to construe the statute.

Suppose after days or weeks of examination the creditors should vote against the acceptance of the composition, not on the strength of any thing contained in the answers to the inquiries, but because there had never been a sufficient number ready to vote affirmatively. Many other cases might be put, which would exhibit reasons of convenience, besides those which the language of the statute suggests.

Our practice has been to permit any creditor to file objections to the recording of the resolutions and to take evidence on the matter before the final order. Even this is inconvenient and expensive, but we have found that by postponing the formal examinations until that time, no injustice is done to the objectors, and many of the cases are disposed of one way or the other with the consent of all parties, without the examinations.

I appreciate the difficulties which a creditor has to meet if the debtor is fraudulent. I have often thought it would be well to make a rule that any creditor should be at liberty to examine the bankrupt before the meeting. This would remove some of the inconveniences. I do not think the statute positively intends this, and, therefore, I have refused to grant such orders, but it does not follow that this court, in the absence of any rule by the Supreme Court, has not power to establish it as a general rule of practice, applicable to all cases.

As the law stands, I think the register must have the power, subject to the reviewing power of the court, to conduct the inquiries, and to take down the sub

stance of the answers, and to adjourn the meeting by consent of parties, and even, in some cases, against the wishes of one or the other; but not to conduct a written examination of the length which this appears to threaten, nor to permit all the inquiries and investigation which would be proper in bankruptcy; and in most cases, I think he would be justified in refusing to permit the inquiries to extend beyond the day of the meeting.

VALIDITY OF STATE LAWS REGULATING THE TRANSPORTATION OF CATTLE.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1877.

HANNIBAL AND ST. JOSEPH RAILROAD Co., Plaintiff in Error, v. HUSEN.

1. A statute of a State which prohibits driving or conveying any Texas, Mexican, or Indian cattle into the State between the first day of March and the first day of December in each year, is in conflict with the clause of the Constitution of the United States that ordains "Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes." Ib.

2. Such a statute is not a legitimate exercise of the police Poor. Ib. of the State. It is more than a quarantine regu

3. The police power of a State cannot be exercised over a subject, such as interstate transportation of subjects of commerce, confided exclusively to Congress by the Federal Constitution. Ib.

4. While a State may enact sanitary laws, while, for the purpose of self-protection, it may establish quarantine and reasonable inspection regulations, while it may prevent persons and animals suffering under contagious or infectious diseases from entering the State, it cannot interfere with transportation into or through its borders, beyond what is absolutely necessary for its selfprotection. Ib. 5. Neither the unlimited powers of a State to tax, nor any of its large police powers, can be exercised to such an extent as to work a practical assumption of the powers conferred by the Constitution upon Congress. Ib.

6. Since the range of a State's police power comes very near to the field committed by the Constitution to Congress, it is the duty of courts to guard vigilantly against any needless intrusion.

IN

N error to the Supreme Court of the State of Missouri. The facts appear in the opinion.

Mr. Justice STRONG delivered the opinion of the court.

Five assignments of error appear in this record; but they raise only a single question. It is whether the statute of Missouri, upon which the action of the State court was founded, is in conflict with the clause of the Constitution of the United States that ordains "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The statute, approved January 23d, 1872, by its first section, enacted as follows: "No Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into, or remain in any county in this State between the first day of March and the first day of November in each year, by any person or persons whatsoever." A later section is in these words: "If any person or persons shall bring into this State any Texas, Mexican, or Indian cattle, in violation of the first section of this act, he or they shall be liable, in all cases, for all damages sustained on account of disease communicated by said cattle." Other sections make such bringing of cattle into the State a criminal offense, and provide penalties for it. It was, however, upon the provisions we have quoted that this action was brought against the railroad company that had conveyed the cattle into the country. It is noticeable that the statute interposes a direct prohibition against the introduction into the State of