regualtion with highly penal consequences, | burdened by a municipal ordinance exacting is single in character, and includes com- a license fee from a person employed by a merce wholly within the state, thereby ex- foreign corporation to solicit, within the ceeding any authority which Congress in- municipality, orders for groceries, which the tended to confer upon him by the act in company fills by shipping goods to him for question, if the same is a valid enactment. chase price from, the customer, who has the the delivery to, and collection of the purWe, therefore, find it unnecessary to pass right to refuse the goods if not equal to upon the other questions which were sample, such goods always being shipped in thought to be involved in the case at bar. distinct packages, corresponding to the sevThe judgment of the state court will be eral orders, except in the case of brooms, reversed and the cause remanded to it for which, after being tagged and marked, like further proceedings not inconsistent with the other articles, according to the number this opinion. ordered, are then tied together in bundles of about a dozen, wrapped up conveniently for shipment.* Mr. Justice McKenna concurs in the result. (203 U. S. 531) V. T. C. EDWARDS. This case is governed by the decision in Illinois C. R. Co. v. McKendree, ante, 153. [No. 12.] Submitted December 14, 1905. Restored to docket for oral argument December 18, 1905. Decided December 17, 1906. N ERROR to the Circuit Court of Carlisle I County in the State of Kentucky to re view a judgment in favor of plaintiff in an action to recover damages from a railway company for the infection of cattle because of a violation of quarantine regulations promulgated by the Secretary of Agriculture. Reversed and remanded for further proceedings. Messrs. J. M. Dickinson, Edmund F. Trabue, and Blewitt Lee for plaintiff in error. No brief was filed for defendant in error. Per Mr. Justice Day: This case involves the same questions, upon similar facts as No. 13, just decided. Counsel filed a written stipulation that it shall be controlled and determined by the ruling made in that case. The judgment is reversed, and cause remanded to the state court for further proceedings not inconsistent with this opinion. [No. 47.] Submitted October 19, 1906. Decided December 17, 1906. IN See same case below, 26 Pa. Super. Ct. 384. The facts are stated in the opinion. Messrs. Campbell M. Voorhees and Philemon S. Karshner for plaintiff in error. Messrs. S. P. Wolverton and Harry 8. Knight for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This case comes here upon a writ of error to the superior court of Pennsylvania, an appeal to the supreme court of the state having been disallowed by the last-named court. The superior court affirmed a conviction of the plaintiff in error for violating an ordinance of the borough of Sunbury, which made it unlawful to solicit orders for, sell, or deliver, at retail, either on the streets or by traveling from house to house, foreign or domestic goods, not of the parties' own manufacture or production, without a license, for which a large fee was required. In the court of quarter sessions, where the plaintiff in error was convicted, the case was Mr. Justice McKenna concurs in the re- heard upon an agreed statement of facts. sult. Upon these facts the plaintiff in error asked The *Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, 111 609 *510 mass of goods in the state, and so subject to the local law. But the doctrine as to original packages primarily concerns the right to sell within the prohibiting or tax When the goods have been sold before arrival the limitations that still may be found to the power of the state will be due, gen The following is a shortened statement of the facts agreed. An Ohio corporation employed an agent to solicit in Sunbury retail orders to the company for groceries. When the company had received a large numbering state goods coming into it from outside. of such orders it filled them at its place of business in Columbus, Ohio, by putting up the objects of the several orders in distinct packages, and forwarding them to the de-erally, at least, to other reasons, and we fendant by rail, addressed to him "For A. shall consider whether the limitations may B.," the customer, with the number of the not exist, irrespective of that doctrine, in order also on the package, for further iden- some cases where there is no executed sale. tification. The company ultimately kept | Hence the prosecution, whatever its assumpthe orders, but it kept no book accounts tion on the point last mentioned, sought to with the customers, looking only to the show that there was no sale until the goods defendant. The defendant alone had au- were delivered and the cash paid for them. thority to receive the goods from the rail-The superior court contented itself with the road, and when he received them he de- suggestion that the contract would have livered them, as was his duty, to the cus-been satisfied by the delivery of articles tomers, for cash paid to him. He then sent corresponding to sample, although bought at the money to the corporation. The cus- the next door. The argument submitted to tomer had the right to refuse the goods if us goes farther, and affirms that the order not equal to the sample shown to him when was not accepted and did not bind the corhe gave the order. In that or other cases poration until the delivery took place. of nondelivery the defendant returned the goods to Columbus. No shipments were made to the defendant except to fill such orders, and no deliveries were made by him ex-given to agents employed to solicit them is cept to the parties named on the packages. In the case of brooms, they were tagged and marked like the other articles, according to the number ordered, but they then were tied together into bundles of about a dozen, wrapped up conveniently for shipment. The defendant had no license, but relied upon the invalidity of the ordinance, as we have said. If the acts of the plaintiff in error were done in the course of commerce between several states, the law is established that his request for a ruling was right, and that he should have been discharged. Robbins v. Taxing District, 120 U. S. 489, 497, 30 L. ed. 694, 697, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. | Ct. Rep. 681; Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229. It will be seen from the insertion of the statement concerning the brooms that a ground relied upon by the prosecution to avoid that conclusion was that the goods, or at least this part of them, were not in the original packages when delivered, and that therefore the case did not fall within the decisions last cited, but rather within Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132; May v. New Orleans, 178 U. S. 496, 44 L. ed. 1165, 20 Sup. Ct. Rep. 976; and Cook v. Marshall County, 196 U. S. 261, 49 L. ed. 471, 25 Sup. Ct. Rep. 233. In other words, it was contended that the brooms, before they were sold, had become mingled with, or part of, the common The answer to the latter of the two positions just stated is simple. The fair meaning of the agreed fact that the orders were that the company offered the goods, and that "Commerce among the several states" is a practical conception, not drawn from the "witty diversities" ([Yaites v. Gough] Yelv. 33) of the law of sales. Swift & Co. v. United States, 196 U. S. 375, 398, 399, 49 L. ed. 518, 525, 526, 25 Sup. Ct. Rep. 276., The brooms were specifically appropriated to specific contracts, in a practical, if not in a technical, sense. Under such circumstances it is plain that, wherever might have been the title, the transport of the brooms for the purpose of fulfilling the contracts was the many decisions upon the matter we deem further argument unnecessary to show that the judgment below was wrong. Judgment reversed. Appt., V. (208 U. S. 502) W. M. LAIRD COMPANY. Appeal-in bankruptcy cases-distinction between appeal and writ of error. protected commerce. In Brennan v. Titus- FREDERICK L. GRANT SHOE COMPANY, ville, supra, pictures were sold by sample, as the brooms were here, and although the pictures were consigned to the purchasers directly, the railroad collecting the price, there was no discussion of the question whether the title had passed. In American Exp. Co. v. Iowa, 196 U. S. 133, 143, 49 L. ed. 417, 422, 25 Sup. Ct. Rep. 182, that question was referred to only to be waived. In Caldwell v. North Carolina, supra, the pictures were consigned to the defendant, an agent, as here, with the additional facts that the pictures and frames were sent in large packages, which were opened by the agent on their arrival, and that the pictures, then for the first time, were put into their proper frames, and, for all that appears, then for the first time appropriated Argued October 26, 1906. Decided Decemto specific purchasers. In the court below all the judges agreed that the title did not pass until delivery. 127 N. C. 521, 526, 527, Writ of error, and not appeal, is the only method of reviewing an adjudication of bankruptcy entered on a directed ver dict on a jury trial demanded as of right by the alleged bankrupt under the bankrupt act of July 1, 1898 (30 Stat. at L. 551, chap. 541, U. S. Comp. Stat. 1901, p. 3429), § 19, for the determination of the issues as to insolvency and the commission of acts of bankruptcy.. [No. 63.] ber 17, 1906. United States for the Western District of New York to review an adjudication of bankruptcy entered on a directed verdict at a jury trial demanded as of right by the alleged bankrupt for the determination of the issues as to insolvency and the commission of the acts of bankruptcy. Dismissed for want of jurisdiction. 87 S. E. 138. This court intimated nothing APPEAL from the District Court of the to the contrary. On the special verdict it well might be that the sale was by sample, as in Brennan v. Titusville. It was decided that the intervention of an agent made no difference in the result. The superior court distinguished that case as one that necessarily involved interstate commerce because it called for the skill of the seller, but no such fact appears in the case or was referred to as a ground of decision, and there is no sufficient warrant for assuming it to be true. Statement by Mr. Justice White: In July, 1903, the W. M. Laird Company of Pittsburg, Pennsylvania, commenced proceedings in the district court of the United Some argument was made, to be sure, that States for the western district of New York even if the defendant was engaged in inter- to cause the Frederick L. Grant Shoe Comstate commerce when he delivered the goods, pany, a corporation doing business in Rochstill the ordinance bound him. American ester, New York, to be adjudicated involunSteel & Wire Co. v. Speed, 192 U. S. 500, tary bankrupts. The petition was solely 48 L. ed. 538, 24 Sup. Ct. Rep. 365, was es- made by the Laird Company, it averring, pecially relied upon. But that decision did among other things, that the shoe company not modify the cases that we have cited. It had less than twelve creditors, and that the dealt with a case where a mass of nails and petitioner was a creditor and had provable iron wire was collected at Memphis from unsecured claims against the shoe company other states, by a manufacturer, for all amounting in the aggregate to more than purposes; some of the goods to be sold on $500. The nature of the claim was detailed the spot, some ultimately to be forwarded at length, and showed that it was one for to purchasers in other states, but no pack- unliquidated damages aggregating $3,732.80, age being consigned to or intended for any asserted to have been suffered by reason of special customer, or free from the chance breaches of an alleged express warranty in of being sold by a new bargain in Tennessee. the sale of merchandise. The alleged bankUnder such circumstances the goods were rupt answered, denying its insolvency and liable to taxation in that state. The dis- the commission of any of the acts of bank. tinction between that case and the present ruptcy averred in the petition, and dedoes not need further emphasis. In view of | manded a trial by jury of the said issues. It 27 S. C.-11. Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bankruptcy, 915. 504 ⚫503 162 also denied being indebted in any amount to the petitioner. Soon afterwards a motion was made to dismiss the petition on the ground that, because of the nature of the claim held by the Laird Company, that company was not a creditor and the holder of a provable claim for any amount against the shoe company within the meaning of subdivision b of 19 of the bankruptcy act, and consequently was not entitled to file a petition in bankruptcy against the alleged debtor. The motion to dismiss was denied by the district judge. 125 Fed. 576. In the order entered it was directed that the claim of the petitioner be liquidated by the jury at the jury trial demanded by the alleged bankrupt for the determination of the issues as to insolvency and the commission of acts of bankruptcy. On the petition of the alleged bankrupt to review this order it was affirmed by the circuit court of appeals for the second circuit. 66 C. C. A. 78, 130 Fed. 881. A trial of the issues thus raised was had before a jury in May, 1905, and, as recited in the record, "at the close of all the evidence, the court having directed the jury to find a verdict that the said alleged bankrupt did, within four months of the filing of the petition herein, commit an act of bankruptcy, in that it transferred a portion of its property to the German-American Bank of Rochester, one of its creditors, with the intent to prefer said GermanAmerican Bank over its other creditors, and that, at the time of said transfer, said alleged bankrupt was insolvent, and that the petitioner has a provable claim against said alleged bankrupt for damages for the breach of warranty in the sale of shoes, and that the amount of such claim of the petitioner is the sum of $3,454.00, the jury found a verdict accordingly." An order was thereupon entered adjudicating the shoe company a bankrupt, and declaring that the claim of the Laird Company was liquidated at the sum of $3,454.00. The present appeal was then taken. Messrs. Hiram R. Wood and McGuire & Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: Section Without considering whether the shoe company, appellant in this court, is not concluded by the decision of the circuit court of appeals upon the petition asking a review of the order of the district court in bankruptcy, denying the original motion to dismiss, we do not pass upon the question pre80. Elliott v. sented by this appeal, as we find we are without authority to do Toeppner, 187 U. S. 327, 47 L. ed. 200, 23 Sup. Ct. Rep. 133. In the cited case, answering a question certified from the United States circuit court of appeals for the sixth circuit, it was held that a judgment that a person is not a bankrupt, entered by a court of bankruptcy on a verdict of not guilty in a trial by jury, demanded as of right under § 19 of the bankruptcy act, was reviewable only by writ of error. 25a of the bankruptcy act, which authorizes appeals, as in equity cases, to be taken to the circuit court of appeals, among other cases, from a judgment adjudging or refusing to adjudge the defendant a bankrupt, was expressly considered, and it was held that the provision only applied to judgments adjudging or refusing to adjudge the defendant a bankrupt, "when trial by jury is not demanded, and the court of bankruptcy proceeds on its own findings of fact." The reasoning upon which the decision was based was, in substance, that, as in the character of proceeding under consideration the right to a trial by jury was absolute, such a trial was a trial according to the course of the common law, and judgments therein rendered are revisable only on writ of error. P. 332, L. ed. p. 202, Sup. Ct. Rep. p. 135. As, in the case at bar, a jury was demanded, the trial was before such jury, and their verdict determined the questions at issue, it follows that the record should have been brought to this court by writ of error, and not by appeal. Appeal dismissed. For the purpose of the appeal, and reciting that it was pursuant to the requirements of general order in bankruptcy No. (203 U. S. 505) 36, the trial judge made and filed findings of fact and conclusions of law. A single question of jurisdiction was also certified WESTERN UNION TELEGRAPH COMas having been raised at the opening of the hearing in September, 1905, by motion to dismiss, substantially* upon the grounds urged in the previous motion to dismiss, PANY, Plff. in Err., V. CHARLES E. HUGHES. which had been passed upon by the court Error to state court-what is highest court of appeals. of state. An inferior state court is the final court of the state where the Federal quesMessrs. P. M. French and Satterlee, Bis- tion involved can be decided, and therefore is the court to which a writ of error from sell, Taylor, & French for appellant. the Supreme Court of the United States | must be directed, where the highest state court, although discussing the Federal question in its opinion, and declaring it to be without merit, dismissed a writ of error to the inferior court solely and expressly for want of jurisdiction.. [No. 119.] jurisdiction to entertain the same," dismissed the writ of error. Treating the order of dismissal as a final judgment, we are now asked on this writ of error to reverse the ruling of the su preme court of appeals of Virginia. This, however, we cannot do. It is immaterial that the supreme court of appeals was vested by the state Constitution with ap Argued December 6, 1906. Decided Decem- pellate jurisdiction in all cases involving the ber 17, 1906. constitutionality of a law as being repugnant to the Constitution of Virginia or of the United States, or that, in the opinion de livered by the court, it discussed the Fed IN ERROR to the Supreme Court of Appeals of the State of Virginia to review an order dismissing, for want of jurisdic-eral question and declared it to be without tion, a writ of error to review a judgment of the Corporation Court of the City of Danville, in that state. Dismissed because writ was directed to the wrong court. See same case below, 104 Va. 240, 51 S. E. 225. The facts are stated in the opinion. Messrs. Rush Taggart, John F. Dillon, George H. Fearons, and Francis Raymond Stark for plaintiff in error. No counsel for defendant in error. Mr. Justice White delivered the opinion of the court: merit. The fact is undoubted that the writ of error was dismissed solely and expressly because of a want of jurisdiction, and the effect of the formal entry, adjudging that the court was without jurisdiction to pass upon the questions presented by the writ of error, cannot be different from what it would have been had the court not given expression to its views in a written opinion. The necessary result of the ruling that the court had not jurisdiction of the writ of error was to determine that the trial court was the final court where the questions presented by the writ could be decided; and, hence, the writ of error should have been directed to that court. Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 539, 46 L. ed. 673, 678, 22 Sup. Ct. Rep. 446. Writ of error dismissed. (203 U. S. 496) ALABAMA & VICKSBURG RAILWAY COMPANY and Robert H. Thompson and Thomas A. McWillie, Its Sureties, Plffs. in Err., RAILROAD COMMISSION OF THE STATE By statutes of the state of Virginia a liability to forfeit the sum of $100 was imposed upon a telegraph company for an omission to promptly transmit and deliver telegrams received by it. Va. Code 1887, 88 1291, 1292. On November 2, 1903, Hughes, the defendant in error, handed to the Western Union Telegraph Company, at its office in Danville, Virginia, a message to be transmitted by wire to Pocahontas, Virginia, and there delivered to the addressee. In regular course such message would have gone by way of Bluefield, West Virginia. It reached that point, but was not sent further. For failure to make delivery Hughes sued the telegraph company in the corporation court of the city of Danville to recover the statutory penalty, and obtained a judgment. Error was prosecuted to the supreme court of appeals of Virginia, upon the contention that the transmission of the message in question was interstate commerce, and not subject to the statutory regulations of Virginia, heretofore referred to. The appellate court, however, held (104 Va. 240, 51 S. E. 225) that the case was ruled by a prior decision (Western U. Teleg. Co. v. Reynolds, 100 Va. 459, 93 Am. St. Rep. 971, 41 S. E. 856), and that such decision had not been overruled by the decision of this court in Hanley v. Kansas City Southern R. Co. Argued November 13, 14, 1906. Decided De 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214, and being of opinion, as recited on its Carriers-state regulation of railway rates. The state of Mississippi may, so far as the Federal Constitution is concerned, establish a flat rate of 32 cents per 100 pounds on grain and grain products carried from Vicksburg to Meridian over the road of the Alabama & Vicksburg Railway Comof a "rebilling rate," gives any Vicksburg pany, where that company, under the guise merchant receiving a car load of grain or grain products over the Vicksburg, Shreveport, & Pacific Railroad a rate of 32 cents per 100 pounds on any grain he may ship to Meridian.f [No. 97.] cember 17, 1906. N ERROR to the Supreme Court of the journal, "that the writ of error was im State of Mississippi to review a decree providently awarded," and that it had "no *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1047. tEd. Note.-For cases in point, see vol. 9 Cent Dig. Carriers, §§ 2-20. |