Y.) 435, 27 N. Y. 611; Goszler v. Georgetown, 6 Wheat. (U.S.) 593; Town of East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 545; People's Railroad v. Memphis Railroad, 10 Wall. (U. S.) 38; Smith v. Washington, 20 How. (U. S.) 135; Brenham v. Brenham Water Co., 67 Tex. 542, 20 Am. & Eng. Corp. Cas. 207; State v. Graves, 19 Md. 351; Louisville City R. Co. v. Louisville, 8 Bush. (Ky.) 415; Covington, etc. R. Co. v. Covington, 9 Bush. (Ky.) 127; Davenport v. Kleinschmidt, 6 Mont. 502, 16 Am. & Eng. Corp. Cas. 301; Waterbury v. Laredo, 68 Tex. 565, 20 Am. & Eng. Corp. Cas. 186; Branson v. Philadelphia, 47 Pa. St. 329; Johnson v. Philadelphia, 60 Pa. St. 445; O'Connor v. Pittsburgh, 18 Pa. St. 187; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175, 72 Am. Dec. 730; Reading v. Keppleman, 61 Pa. St. 233; Brimmer v. Boston, 102 Mass. 19; Calendar v. Marsh, 1 Pick. (Mass.) 418; Griggs v. Foote, 4 Allen (Mass.), 195, Lord v. Oconto, 47 Wis. 368; Blount v. Janesville, 31 Wis. 640; Karst v. St. Paul, etc., R. Co., 22 Minn. 118; Peru v. Gleason, 91 Ind. 566, 5 Am. & Eng. Corp. Cas. 435; Indianapolis v. Indianapolis, G. L. & C. Co., 56 Ind. 396; Lafayette v. Fowler, 34 Ind. 140; Snyder v. Rockport, 6 Ind. 237; Lafayette v. Bush, 19 Ind. 326; Dingman v. People, 51 Ill. 277; Roberts v. Chicago, 26 Ill. 349; Murphy v. Chicago, 29 Ill. 279, 81 Am. Dec. 307; Quincy v. Jones, 76 Ill. 231, 20 Am. Rep. 243; Nevins v. Peoria, 41 Ill. 502, 89 Am. Dec. 392; Matthews . Alexandria, 68 Mo. 115, 30 Am. Rep. 776; Weyman v. Jefferson, 61 Mo. 55; Taylor e. St. Louis, 14 Mo. 20, 55 Am. Dec. 89; St. Louis v. St. Louis G. L. Co., 5 Mo. App. 484, 529; Jackson v. Bowman, 39 Miss. 671; White v. Yazoo City, 27 Miss. 357; Gale v. Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80; Pontiac v. Carter, 32 Mich. 164; Reynolds v. Shreveport, 13 La. Ann. 426; Oakland . Carpentier, 73 Cal. 540; State v. Cincinnati, G. L. & C. Co., 18 Ohio St. 262; Shinner v. Hartford Bridge Co., 29 Conn. 523; State v. New Brunswick, 31 N. J. L. 395; State v. Trenton, 36 N. J. L. 198; Rounds v. Munford, 2 R. I. 154; Roll v. Augusta, 34 Ga. 326; Illinois, etc., R. & T. Co. v. St. Louis, etc., El. Co., 2 Dill. (C. C.) 70; Cooley Const. Lim. 206; Dillon Mun. Corp. (4th ed.) $97; Sedgw. Const. and St. Law, 634.

The application which the court makes of this principle, however, is not so well established. It is very well to say that a municipal corporation cannot bind itself not to exercise its powers nor divest itself of its discretion, and another thing to assert that when it has exercised its power, and thereby granted a franchise to a street railway company, which has been accepted and acted upon, it may when it chooses revoke such grant. There is certainly some ground for the position of some of the decisions that in such case the grant becomes a vested right or a perfected contract. Thus, it was held by the Supreme Court of Texas in Mayor, etc., of Houston v. Houston City R. Co., 83 Tex. 548, 50 Am. & Eng. R. Cas. 380, that where a city council, having the power, grants a franchise to a street railway company to use the streets of the city, and such grant is duly accepted and acted upon, it becomes a vested right which, in the absence of constitutional prohibition of the granting of such franchises cannot be subsequently impaired by the authorities of the city. In this case the city acted very much in the same way as the city of Baltimore in the principal case. After it had granted the franchise it passed a repealing ordinance, and took steps to interfere with the further prosecution of the work by the railway company. The court granted an injunction against such conduct. In Atchison City R. Co. v. Nave, 38 Kan. 744, 36 Am. & Eng. R. Cas. 29, although the point was not directly in issue the court seemed to approve of the same doctrine concerning municipal grants of street railway franchises. JOHNSTON, J., said: “ The consent of the city council to occupy the streets is a mere license; and until the company has availed itself of the license no contractual obligation or relation arises which requires a judicial declara

tion of forfeiture. Until the license is accepted and used no right vests in the railway company, and it may be revoked by the city council." In Great Central R. Co. v. Gulf, C. & S. F. R. Co., 63 Tex. 529, 26 Am. & Eng. R. Cas. 114, the Supreme Court of Texas further said: "Until the company has availed itself of the license, the city council may at any time withdraw its consent."

In New York, as is pointed out in the principal case, a grant of franchise by a city to a street railway company is not a mere license, but confers an estate with perpetuity, which estate constitutes property. People e. O'Brien, 111 N. Y. 1, 36 Am. & Eng. R. Cas. 78.

HUMPHREYS et al.

v.

PERRY et al.

(U. S. Supreme Court, April 10, 1893.)

Merchandise Shipped as Baggage-Liability of Carrier. Where a passenger presents a trunk, of the appearance and size ordinarily used by travelling salesmen for samples, to the baggage agent of a railroad, and receives a check for it as personal baggage, the agent having no knowledge that it contained merchandise, no recovery can be had for the loss of a stock of jewelry contained in such trunk. Central Trust Co. v. Wabash, St. L. & P. R. Co., 40 Am. & Eng. R. Cas. 636, reversed.

APPEAL from the circuit court of the United States for the northern district of Illinois.

Wells H. Blodgett, for appellants.
Richard S. Tuthill, for appellees.

BLATCHFORD, J.-This is an intervening petition, filed May 28, 1886, in the circuit court of the United States for the northern district of Illinois, by John H. Perry, Case stated. Arthur J. Perry, James K. Perry, and Frank A.

Perry, copartners under the firm name of Perry Bros., in the suit pending in said court of the Wabash, St. Louis & Pacific Railway Company against the Central Trust Company of New York and others, in which suit Solon Humphreys and Thomas E. Tutt had been appointed receivers of said railway.

The intervening petition was filed against the receivers by leave of the court. It sets forth that the principal office of the firm of the petitioners is at Chicago; that on January 30, 1885, Arthur J. Perry, one of the firm, in carrying on its business, bought and paid for a ticket for his passage from Springfield, Ill., to Petersburg, Ill., over and upon the rail

road of the company, running between those two places, and at the same time checked with the company a trunk containing jewelry, watches, and merchandise of the firm, such as was necessary for him to take with him in prosecuting the business of the firm, and such as is usually taken as baggage by travelling salesmen in prosecuting business similar to that of the petitioners, for transportation by the company from Springfield to Petersburg; that for the transportation of the trunk he paid the company a sum of money additional to that which he had already paid for his ticket; that thereupon he entered the coach of the company, and the trunk was placed by its agents in the baggage car of the company en route for Petersburg; that shortly before reaching that place, by the negligence and carelessness of the company in constructing and repairing its roadbed and track, and in running that train, the cars containing said Arthur J. Perry and said trunk were derailed, and the baggage car containing the trunk was overturned and rolled down an embankment, and at the foot thereof, by the negligence and carelessness of the company in using in the car an unsafe, improper, and dangerous kind of stove, and in having said stove unsecured, or improperly secured, the baggage car caught on fire, and was totally consumed, together with said trunk, and the watches, jewelry, and merchandise of the petitioners in the trunk were almost totally destroyed; that the value of the trunk and its contents was $9818.46; that the petitioners recovered from the debris of the baggage car a part of the merchandise, so that their loss amounts to $9218.46; that the receivers were appointed May 29, 1884, and had possession of and were operating said road from Springfield to Petersburg at the time of the loss of the trunk; and that they had refused to allow the claim of the petitioners. The prayer of the petition is that the receivers answer the claim for damages.

The answer of the receivers sets forth that at the time in question they were not prepared to carry articles of jewelry and watches as baggage, and did not undertake or advertise themselves to the public as ready or willing to transport the same; that by the rules of the receivers, then in force and well known to the interveners, the agents and servants of the receivers were not allowed to take trunks containing jewelry, watches, and valuable merchandise as baggage; that on January 30, 1885, Arthur J. Perry, one of the interveners, presented to the agent of the receivers, at Springfield, Ill., the trunk in question, and demanded a check therefor, and the receivers then and there undertook to carry the trunk as containing only the personal baggage of said Perry; that he then and there wrongfully concealed from the said agent the

fact that the trunk contained jewelry, watches, or valuable merchandise, and, by such wrongful conduct and fraudulent concealment of the contents of the trunk and their value, secured a check for it from the agent as baggage; that, because it was so checked it was placed by the agent in a baggage car, and transported as ordinary baggage by the receivers over said line of road; that, before reaching Petersburg on said day, the train containing the baggage car in which the trunk had been placed became derailed, without fault or negligence on the part of the receivers or their agents or servants; and that, without any such fault or negligence, the baggage car caught fire after being so derailed, and a portion of the contents of the trunk, so wrongfully and fraudulently shipped as baggage, was destroyed. The answer denies that the interveners are entitled to any relief.

On June 30, 1886, the court made an order referring the intervening petition to E. B. Sherman "to take proof and report the same to the court." Mr. Sherman was one of the masters in chancery of the court. He took proofs and made a report to the court, accompanied by the proofs, and filed October 23, 1888. In his report he recites the order of reference as directing him to take evidence and report to the court "with his findings in the premises." He did report the evidence, and also findings by him, both of fact and of law. The receivers excepted to the report, because (1) the findings were contrary to the evidence; (2) the findings were contrary to law; (3) the findings were contrary to the law and the evidence; (4) the findings should have been that the intervening petition be dismissed; (5) the interveners were not entitled to the relief prayed for; and (6) the amount found by the master was excessive, and not warranted by the testimony. The master found that the interveners were entitled to recover from the receivers $7287.87, with costs. There was no exception to the fact that the master had found the facts and the law, or had departed from the order of reference, and neither of the parties nor the court took any objection in that respect.

The case was heard before the circuit court, held by Judge GRESHAM (39 Fed. Rep. 417, 40 Am. & Eng. R. Cas. 636), on the report of the master and the exceptions thereto, and a decree was made July 29, 1889, overruling the exceptions, confirming the report of the master, and decreeing in favor of the interveners for $7287.87, and for the payment of that sum to them by the receivers, with costs, and $150 for master's fees. From this decree the receivers have appealed.

On January 30, 1885, Arthur J. Perry, a member of the intervener's firm, was in Springfield, Ill., with a trunk of

jewelry, containing a stock of goods from which he was to make sales and deliveries to their customers. He there bought a passage ticket from the agent of the receivers for his transportation to Petersburg, on their road, and presented his trunk to be checked to Petersburg as his personal baggage. The trunk was of a dark color, iron bound, weighed 250 pounds, and as to size was described in the evidence as being "what a sample man would call small." The agent gave him a check for the trunk, and collected from him 25 cents on account of its extra weight, only 150 pounds of personal baggage being carried free for each passenger. Nothing was said to the agent by Perry concerning the contents of the trunk, nor did he make any inquiries of Perry in regard to its contents. When the train had reached a point a few miles · from Petersburg the car in which the trunk was being conveyed was thrown from the track, and was ignited from the fire in a stove on board, and the trunk and contents, to the value of $7287.87, were destroyed. There was evidence tending to show that the stove was cracked, and that its door was without a latch or other fastening. As to the cause of the derailment there was evidence tending to show that the night was cold, and that as the train was rounding a curve a rail broke under it. There was also evidence tending to show that many of the cross-ties in the track at the place of the accident were so decayed that they did not firmly hold the spikes, and that the disaster was caused by the rails spreading. The master, in his report, attributed it to the latter cause, and found that the condition of the track was so unsafe that the receivers were presumed to have known of its condition. He found as a fact, however, that the condition of the track had been improved by the receivers, and at the time of the accident was better than when they were appointed.

There was evidence tending to show that it was, and had been for a number of years, a practice among the wholesale jewelry merchants of Chicago and other places to send out agents or members of their firms among their country customers with trunks filled with goods, and that such agents had been accustomed to sell and deliver goods from the stocks thus carried about. The evidence tended to show that such stocks of goods were generally carried in trunks similar in character to the one used by Perry, and that as a rule they had been checked as personal baggage. But there was no evidence tending to show that the railroad companies or their agents knew what the trunks contained; and John H. Perry, one of the firm, who testified as to what had been the custom, also testified that he did not know of any railroad in the country that he could go to and say: "Here is a trunk coù