[454] ed. 815); R. R. Co. v. U. S., 93 U. S.,453 (Bk. 23, L. ed. 970); see, also, Toll Bridge Co. v. R. R. Co. 17 Conn.,454; Black v. R. R. Co., 58 Pa. St., 249; Turnpike Co. v. R. R. Co., 2 Harr. (N. J.), 314; Duncan v. R. R. Co., 94 Pa. St., 435; R. Co. v. Daniels, 16 Ohio St., 390; R. R. Co. v. Kip, 46 N. Y., 546; Protzman v. R. R. Co., 9 Ind., 469; R. R. Co. v. Municipality of N. O., 1 La. Ann., 128. As to the implied authority of a railroad company to construct its road on and over the public domain, see Improvement Co. v. La Crosse Co., 54 Wis., 659; R. Co. v. State, 3 Ind., 421; R. R. Co. v. R. R. Co., 8 C. E. Green, 157; Davis v. R. R. Co., 1 Sneed, 94; U. S. v. Bridge Co., 6 McLean, 517. Congress having reposed the power of selecting the site for the warehouse in the officers of the Company, and they having chosen this square, it is just as firmly established as a terminus of the side track as if the Act itself had in terms fixed the location. This being true, the right to lay the connecting side track follows from necessity. R. R. Co.v. Hall, 91 U. S., 356 (Bk. 23, L. ed. 429); Duncan v. R. R. Co., 94 Pa. St., 435; R. R. Co.v. Adams, 3 Head., 597; R. R. Co. v. Speer, 56 Pa. St., 325; People v. Brooklyn R. Co., 89 N.Y., 75; Rorer, R. R., 489; R. R. Co.v. R. R. Co., 23 N. J. Eq., 157; Hughes v. R. R. Co., 18 Fed. Rep., 106; R. R. Co. v. Gas Light Co., 63 N.Y., 326; R. R. Co. v. Dunbar, 100 Ill., 110, R. R. Co. v. Brownsville, 45 Tex., 88; 10 Johns., 888. Mr. Justice Miller delivered the opinion of the court: This is an appeal from the Supreme Court of the District of Columbia. The Railroad Company has constructed its road from Baltimore through the District of Columbia and through the City of Washington to the Potomac River at Long Bridge, on which it crosses that river to the Virginia side. It has done this by virtue of several Acts of Congress granting the necessary authority to do so. At the Washington end of the bridge it has purchased and now owns one of the squares of the city and part of another, numbered, in the division of the city into streets, squares and lots, squares 233 and 267. These squares are divided by Fourteenth street, running north and south, and square 267, on its south side, abuts on Maryland avenue, one of the streets of the city. At the junction of Maryland avenue, whose course is nearly east and west, and Fourteenth street, there is a considerable space of ground made by Water street, which follows the bank of the river, and the other two streets, which is a public highway made by the union of all three streets at that point. A map or diagram found in the record, and which the reporter will copy, is necessary to a clear understanding of the controversy. [See next page.] The Railroad Company alleges that its increased traffic requires in the City of Washington additional accommodations for receiving, storing and transferring freight, and that it has purchased the two squares mentioned for that reason, and that it intends to build a freight depot on square 233, as being at once convenient for the Company and more out of the way | of the travel, current business and residences of the citizens than any point within reasonable distance of the line of the road. As their road is at present located lawfully on Maryland avenue, along which it touches the city end of the bridge, this allegation is probably true. In order, however, to reach square 233 with its trains, they must depart from Maryland avenue and cross square 267 and Fourteenth street, which lies between the two squares, or they must make a curve from the avenue around the south end of square 267, and reach square 233 by the use of the public highway made by the junction of Maryland avenue, Water street and Fourteenth street, and, in so [455] doing, depart from Maryland avenue. The Company gave notice, as required law, to appellants, who, as Commissioners of the District of Columbia, are charged with the care and protection of the streets and other highways of the city, that it intended to construct a lateral track, which, leaving its main track on Maryland avenue at a point near its intersection with Thirteenth street, should cross square 267 from its east to its west side, and then crossing Fourteenth street, would reach its projected depot on square 233. The Commissioners refused to consent to this, and, fearing it would be attempted without such consent, they guarded the way across the street by police force for some time. In this condition of affairs, the Railroad [456] Company filed its bill in chancery in the Supreme Court of the District of Columbia, praying an injunction against the Commissoners, to prevent them from interfering with the exercise of the right which the Company claimed of laying its track across Fourteenth street, and that court granted an injunction as prayed. The appeal of the Commissioners from this decree brings the matter in issue before us for review. Neither the pleadings in the case, nor the relief sought by the bill, nor the decree of the court, brings into question the right of the Company to purchase squares 233 and 267, nor the right to erect on either of these a warehouse for the storage of freight. Nor does the question arise of their right to locate at that place such a depot as their business requires, nor to use it as such, if they have the right of access to it by using the streets and highways of the city for that purpose. This court does not, therefore, consider those questions, because the only point raised by the record is the right of the Company to lay in or across the streets of the city their railroad track, and use it as a means of transit for its locomotives and cars, without any express authorization by Act of Congress, or the consent of any authority representing the City of Washington or the District of Columbia. The assertion of the existence of such a right is, to say the least, somewhat novel. It is not known to any member of this court that any railroad company, whether its cars are propelled by steam or horse-power, has ever claimed to use the streets of an incorporated city or any part of them, without express authority from some legislative body, or the authorities of the city governmennt. It would be a strange grant of power which, authorizing a railroad company to enter or even pass through a city, should mand the use of these streets, and that the locality of the depot to which the track leads is selected with a due regard to the interests of the whole city, make this claim of power any the less remarkable. No judicial decision is cited in favor of such propositions. The streets of Washington are largely used [45 267 268 "D.S 269 by street railroad companies whose tracks occupy their surface. There are some four or five of these companies, and their cars are propelled by horse-power and not by steam. They are not only a great convenience to the citizens, but they have become almost a public necessity. But it is not believed that a foot of all these tracks over all these streets exists otherwise than by virtue of an Act of Congress directing specifically and minutely where this shall be done. And no power exists in one of these corporations to lay a track, however short, anywhere else. The Railroad Company now asserting this right runs its cars from the east side of the city to the west, a distance of two miles or more, through a densely populated part of the city, over a track, the location of every foot of which is prescribed with minuteness by Acts of Congress. And its principal passenger depot, located several hundred yards from the main line of its road through the city, makes this deflection from that line solely by virtue of an express Act of Congress, passed to enable the Company to do so. District to some point or terminus within the City and County of Washington, to be determined in the manner hereinafter mentioned." The third section of this Act, after describing the care with which the Company shall construct the road across any street or other way, adds: "But the said Company, in passing into the District aforesaid, and in constructing the said road within the same, shall enter the City of Washington at such place, and shall pass along such public street or alley to such point or terminus within said city, as may be allowed by Congress, upon presentation of survey and map of proposed location of said road; provided that the level of said location within the said city shall conform to the present graduation of the streets, unless Congress shall authorize a different level." This provision of the original Act, under which the Baltimore and Potomac Railroad enters this city, has never been repealed or modified, as far as we are aware, and it fully asserts the purpose of Congress to retain in its own hands the right to the use of the streets of the city in regard to this Company and its road, as it has in regard to all others. It is with these well-known facts before us showing the care with which Congress has re- By another Act, passed March 18,1869, 16 Stat. peatedly exercised the power of granting, re- at L., 1, entitled as supplementary to the one fusing and regulating the use of the streets of above cited, it was declared "that said Company Washington for railroads, that we approach might enter the City of Washington with their the examination of the statute or statutes which railroad, and construct the same within the limare supposed to grant the enlarged power its of said city on or by whichever one of the claimed by the Baltimore and Potomac Com-two routes herein designated the said Company pany in this instance. may elect and determine; that is to say: The first and most important of these is the Act of Congress of February 5, 1867, 14 Stat. at L., 387. After reciting that it is represented that the Baltimore and Potomac Railroad Company, incorporated by an Act of the General Assembly of Maryland, passed May 6, 1853, is desirous to construct a lateral branch from its road to the District of Columbia, it is enacted that "said Company shall be, and they are hereby authorized to extend into and within the District of Columbia, a lateral branch, such as the said Company shall construct or cause to be constructed, in a direction towards the said [458] District, in connection with the railroad which they are about to locate and construct from the City of Baltimore to the Potomac River, in pursuance of their said Act of incorporation; and the said Baltimore and Potomac Railroad Company are hereby authorized to exercise the same powers, rights and privileges, and shall be subject to the same restrictions in the extension and construction of the said lateral railroad into and within the said District as they may exercise or are subject to, under and by intent of their said charter or Act of incorporation, in the extension and construction of any railroad within the State of Maryland, and shall be entitled to the same rights, compensations, benefits and immunities, in the use of the said road, and in regard thereto, as are provided in their said charter, except the right to construct any lateral road or roads within the said District from the said lateral branch or road hereby authorized, it being expressly understood that the said Baltimore and Potomac Railroad Company shall have power only to construct from the said Baltimore and Potomac Railroad one lateral road within the said "First. Beginning at the intersection of Boundary street and North Carolina avenue; thence along said North Carolina avenue to South D street, westwardly, to Virginia avenue; thence along Virginia avenue, northwestwardly, to the intersection of South C street and West Ninth street; or, "Second. Beginning at some point on the northern shore of the Eastern Branch of the Potomac River, between South L and South M streets; thence westwardly between said streets to the intersection of Virginia avenue with South L and East Twelfth streets; thence along said Virginia avenue, northwestwardly, to South K street; thence along said South K street, westwardly, to South Fourth street; thence, by a line curving to the right, to the north bank of the canal; and thence along the said bank of the canal, northwestwardly, to Virginia avenue; thence along Virginia avenue, northwestwardly, to the intersection of South C and West Ninth streets." Whether this was in accordance with a map or maps furnished by the Company we are not informed; probably it was. But this was wholly immaterial, as this supplemental statute was clearly made to allow the use of these streets as provided in section three of the original Act. By another Act, approved March 25, 1870, Congress authorized the Company to make some changes in the line of its road between Esta Fourth street and the terminus at the junction of C street south and Ninth street west, which change, however, is described with the same particularity as the routes above described, and by the same Act the time for the completion of the road was extended. The next Act of Congress, approved June 21, 1870, 16 Stat. at L., 161, also entitled as [459] amendatory of the Act of July 5, 1867, authorizes the Company to extend its road from the [460] terminus at Ninth street, "by way of Maryland avenue, conforming to its grade, to the viaduct over the Potomac River at the City of Washington, known as the Long Bridge, and extend their tracks over said bridge and connect with any railroads constructed, or that may hereafter be constructed, in the State of Virginia." The Act then delivers over Long Bridge to the Company for its use as a railroad bridge, with conditions requiring it to be kept in good repair, and open to free use as a public highway for all the people. [461] It is by virtue alone of the words of this statute, which we have cited in italics, that the road of the Company is anywhere near the bridge, or near the locus in quo of the present controversy. It requires a larger measure of liberality in coustruing grants of the sovereign, and especially grants for the use of the streets of a city for a railroad, than we are accustomed to, to discover in this any authority to depart from Maryland avenue on its way from Ninth street to the Long Bridge. The Company, having its road well under way, needed a passenger depot for its businessa need much more important than its present need of an additional freight depot. It did not, however, attempt to establish one under its general powers, but made application to Congress, which authorized its construction, and in doing so described its location with great precision, and the streets along which the track must go, in departing from the right of way already granted. land to see if the powers thus conferred, and It is sufficient to say that we do not find in And if the construction which counsel place upon that charter is sound, it is very certain that Congress did not intend extending that power of the Company into the District of Columbia, and part with its own control of the streets and highways of Washington City, for such a power is in conflict with the express language of the Act, and with the constant practice under it. We are referred by counsel to the Revised Statutes of the District of Columbia, chapter 18, concerning Corporations. Clause 7 of that chapter provides for the voluntary association of individuals into corporations for building railroads in the District. It grants these corporations, when formed in compliance with the rules there prescribed, all the usual powers of such companies organized under State statutes, and all that are necessary to the operation of a railroad, and the powers thus conferred are, in the main, very liberal. There are two reasons, however, why these provisions can give no aid to the Baltimore and Potomac Company. This Act of March 3, 1871, required the as- that Maryland Corporation to extend its road in- This was three years before the general in- The title to the streets of Washington is in In the face of these statutes it is hardly necessary to look into the language of the charter of the Company by the Legislature of Mary statute grants to corporations organized under [462] of the chapter of the Revised Statutes on that | Henry Mixter was named as the plaintiff in- "Sec. 673. No railroad shall be built under the provisions of this chapter until the route and termini of such road have been approved by_Congress.' This section of the general law for the voluntary organization of corporations for building railroads in the District of Columbia, ex[463] presses the same idea and the same purpose that section three of the Act authorizing the Baltimore and Potomac Company to enter the District does, namely: to retain in the hands of Congress the absolute control of the use of the streets of the city by any railroad company whatever. We are of opinion that, when this Company wishes to depart in any direction from the line of its present track as prescribed for it by Acts of Congress, it must obtain permission to do so from that body. And that Congress, and not the court nor the Company, is the judge of the expediency or the necessity of such change, and of the manner in which the public good requires it to be made and the safeguards which should accompany it. The Decree of the Supreme Court of the District of Columbia is reversed, and the case remanded, with directions to dismiss the bill. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. [463] PACIFIC NATIONAL BANK OF BOSTON, Piff. in Err., v. GEORGE MIXTER. (See S. C., Reporter's ed., 463–464.) James H. McKenney, Clerk, Sup. Court, U. 8. ATLANTIC PHOSPHATE COMPANY, 0. JOHN C. GRAFFLIN. (See S. C., Reporter's ed., 492–501.) Contracts—party making advances for purchase of goods for another, held to be the owner. *A contract was made by A., of Charleston, with D.. of Baltimore, for the sale and delivery, at from August to October, 1880, at a fixed price, cash Charleston, of 2,500 tons of kainit, to be shipped on delivery of each cargo. The kainit was to come from R., at Hamburg. D. procured G., for a commission paid him by D., to send to R. a credit, on London, for the amount of 2,500 tons of kainit in five cargoes, under which R. obtained the money. G. paid drafts, against the credit, to the amount of the cargoes. The declarations and invoices by R., presented before the consul at Hamburg, named G. as the consignee at Charleston; and the bills of landing made the cargoes deliverable, at Charleston, to G. or his assigns. These papers were sent to A., before any of the cargoes arrived, with an invoice for each cargo, in the shape of a bill, made out thus: A. bought of G., a cargo of kainit, shipped by such a vessel, such a quantity, such a price; and a power of attorney, under which A.'s agent, as attorney for G., entered the cargoes at the custom-house at Charleston, in February and March, 1881, as imported by G., and made oath that G. was the owner. A. received and accepted the cargoes. Held, (1) G. was the owner of the cargoes, and sold and delivered them to A., to be paid for on delivery, free from any claim growing out of the contract of A. with D. or R., for any breach of that contract, as to the time of shipping the cargoes. (2) A. was liable to G. for the price of the cargoes, Bond for costs—sec. 1001, R. S.-mistake in with interest from their delivery. [No. 256.] Argued Apr. 16, 17, 1885. Decided May 4, 1885. IN ERROR to the Circuit Court of the United States for the District of South Carolinia. The history and facts of the case appear in the opinion of the court. Messrs. S. Lord and James Conner, for Submitted Apr. 18, 1885. Decided Apr. 20, 1885. plaintiff in error. Messrs. Charles Nephew West and IN ERROR to the Citrict of Massachusetts. James Lowndes, for defendant in error. ed States for On motion to dismiss. The case is sufficiently stated by the court. Mr. Joshua D. Ball, for defendant in error, in support of motion. Mr. A. A. Ranney, for plaintiff in error, contra. Mr. Chief Justice Waite delivered the opinion of the court: This motion is denied. Under section 1001 of the Revised Statutes no boud for the prose cution of the suit, or to answer in damages or costs, is required on writs of error or appeals issuing from or brought to this court by direction of the Comptroller of the Currency in suits by or against insolvent national banks, or the receivers thereof. This is such a case. There is abundant evidence in the record that the direction from the comptroller to the receiver was to take out a writ of error in this case, although, by mistake in one of the papers, [492] This is an action at law, brought in the Circuit Court of the United States for the District of South Carolina, by John C. Grafflin against the Atlantic Phosphate Company, a South Carolina Corporation. The complaint sets forth as a first cause of action, that the defendant is with interest from February 24, 1881, "the indebted to the plaintiff in the sum of $2,792.60, same being due to the plaintiff for a cargo of kainit, sold and delivered by the plaintiff to the defendant, "on that day, "at the special instance and request of the defendant." It sets forth four other like causes of action, for cargoes of kainit, amounting to $3,347.55, March 3, 1881; 16, 1881; and $2.483.37, March 18, 1881. Bills $1,743.37, March 15, 1881; $5,083.58, March of particulars are annexed, showing the ves *Head notes by Mr. Justice BLATCHFord. |