so far controlled the coming in of water at the place where the break of the shaft had occurred, as to render the vessel reasonably safe to undergo, at that time of the year, the navigation proposed in the form proposed, it would be proper for the jury to consider, on all the evidence, whether such condition of the vessel was the cause of her ultimate loss, and, if so, whether, in taking her past a port where she might have been repaired, the master was guilty of incompetency, or of such lack of ordinary care in navigating the vessel as brought the case within the exceptions contained in the policy, as above set forth. The contention of the defendant is that if the vessel became unseaworthy from any cause in the course of her voyage, and failed to put in at the first port where such unseaworthiness could be repaired, that unseaworthiness operated to release the insurer from liability, whether the loss resulted from such unseaworthiness or not. But we are of opinion that, by the terms of the policy, the vessel was insured against all perils of the lakes which should damage her, excepting perils and losses consequent upon and arising from, or caused by, the specified and excluded causes applicable to and arising out of the facts of this case, namely, incompetency of the master, or want of ordinary care and skill in navigating the vessel, rottenness, inherent defects, and all other unseaworthiness. The Company is not released from liability by reason of the existence of any of the excluded conditions, but is released from such losses as are consequent upon and arise from or are caused by any of the specified, excluded causes. If, therefore, the vessel was subjected to a peril of the lake, and sustained loss which did not arise from, or was not caused by, some one of the excluded causes, the Company was not released from liability. Therefore it was contended by the plaintiff that, although the shaft of the tug had been broken, in Lake Huron, about seventy miles from Port Huron, yet, as the master had succeeded at the time in so stopping the leak around the shaft that he had it under such control that he was able to have the tug taken in tow, and, by moderate pumping, to keep her free from water; and as, after reaching Port Huron, and finding that the leak was under control, he continued his course to Detroit; and as he there found that the leak was still under control and proceeded to go across Lake Erie, with a design to reach Cleveland, where the vessel could be repaired by her owner, be acted with ordinary care. This question was submitted to the jury, under all the circumstances of the case, and upon the opinions of experts, approving the course. The question also arose whether, when the vessel began to fill with water upon Lake Erie, such filling with water was caused by the breaking of the shaft or by some other peril; and upon this point the testimony of the master, who made a particular examination at that time, was distinct, that the leak which had existed at the time the shaft was broken, and had been stopped by him, remained stopped at the time the water was found to be coming in. There was other testimony bearing upon the questions above stated, and which was fairly submitted to the jury, and upon which the verdict they gave was justified. The principle adopted by the circuit court in laying the case before the jury was the proper one. In the insurance of a vessel by a time policy, the warranty of seaworthiness is complied with if the vessel be seaworthy at the commencement of the risk; and the fact that she subsequently sustains damage, and is not properly refitted at an intermediate port, does not discharge the insurer from subsequent risk or loss, provided such loss be not the consequence of the omission. A defect of seaworthiness, arising after the commencement of the risk, and permitted to continue from bad faith or want of ordinary prudence or diligence on the part of the insured or his agents, discharges the insurer from liability for any loss which is the consequence of such bad faith, or want of prudence or diligence, but does not affect the contract of insurance as to any other risk or loss covered by the policy and not caused or increased by such particular defect. American Ins. Co. v. Ogden, 20 Wend. 287; Peters v. Phoenix Ins. Co. 3 Serg. & R. 25; Paddock v. Franklin Ins. Co. 11 Pick. 227; Starbuck v. New Eng. Mar. Ins. Co. 19 Pick. 198; Adderly v. American Mut. Ins. Co. Taney, 126; Copeland v. New Eng. Marine Ins. Co. 2 Met. 432; Capen v. Washington Ins. Co. 12 Cush. 517; Merchants Mut. Ins. Co. v. Sweet, 6 Wis. 670; Horie v. Pa cific Mut. Ins. Co. 7 Allen, 211; Rouse v. Ins. Co. 3 Wall. Jr. 367. In view of all the facts in evidence, the court properly put the case on this subject to the jury in these words: "The Sprague having been temporarily repaired by calking the leakage occasioned by the breaking of her shaft, and taken in tow by The Wilcox, and in safety having reached Detroit, the question presents itself as to the duty of the master or plaintiff to have the [428] proper repairs made there before starting on Lake Erie for her home port on Lake Erie, and, failing to do so, how does it affect the plaintiff's right to recover on this policy? On this point I direct you that if, when The Sprague arrived at Detroit, the breaking of the shaft and the consequent leakage therefrom was such that an ordinarily prudent and discreet master, of competent skill and judgment, would have deemed it necessary to repair the vessel, so as to stop the leak, before proceeding on the voyage to Cleveland, and you find that the sinking of the vessel and its loss was occasioned by his omission to do so, and would not otherwise have happened, then the plaintiff is not entitled to recover in this suit. But if you find, from the character of the injury and the leak, that a master of competent skill and judgment might reasonably have supposed, in the exercise of ordinary care for the safety of the vessel, that she was seaworthy for the voyage in which she was then engaged, in the manner that she was to make the trip to Cleveland in tow of The Wilcox, notwithstanding the leakage occasioned by such breaking of the shaft, and on that account omitted to make such repair at Detroit, then such omission to make such repair at Detroit is no bar to a recovery in this suit." Special objection is made by the defendant to that portion of the charge which says that "the want of ordinary care at the time of the loss in Lake Erie must be shown by a fair preponderance of the proof on behalf of the defendant, for the reason that the defendant sets it up in its special defense, in the form of a special answer, and in that respect takes upon itself the establishment of the affirmative of that proposition." The court had previously stated to the jury that, to entitle the plaintiff to recover, he must show that he had complied with the terms of the policy, and that "it must appear from the whole proof that the loss was [429] not occasioned by the want of ordinary care of the master in charge of the vessel, or on account of being unseaworthy, as hereinafter stated, and not within the exceptions contained in the policy, against which the defendant did not insure the plaintiff." The defendant had undertaken, by expert testimony, to prove that the master did not exercise ordinary care, when he discovered the water gaining on his pumps in Lake Erie, because he did not require the tug which was towing him to take him back to the Detroit River; and it was in regard to this claim of the defendant that the court said what is thus specially objected to. We think the instruction was proper in reference to the subject to which it related. [493] We do not consider it necessary to discuss particularly any of the other positions taken by the defendant. They have all of them been considered; we see no error in the record, and the judgment of the Circuit Court is affirmed. JAMES REID STEWART, Appt., 0. BRANCH T. MASTERSON. (See S. C. Reporter's ed. 493, 491.) U. S. v. Gomez, 70 U. S. 3 Wall. 752 (18: 212); Villabolos v. U. 8. 47 U. S. 6 How. 90 (12: 356); Yeaton v. Lenox, 32 U. S. 7 Pet. 220 (8: 664): U. S. v. Curry, 47 U. S. 6 How. 106 (12: 363); Edmonson v. Bloomshire, 74 U. S. 7 Wall. 306 (19:91); Grigsby v. Purcell, 99 U. S. 505, 506 (25:354) and cases cited; Hewitt v. Filbert, 116 U. S. 142 (29:581). Mr. C. C. Lancaster, for appellant, in opposition: A district judge, sitting in the circuit court, may allow appeals from its decisions. Rodd v. Heartt, 84 U. S. 17 Wall. 354 (21: 627). There was no necessity for the petition to the district judge to grant the appeal. It was a matter of right given by law after final decree, which the court could not refuse. U. S. v. Curry, 47 U. S. 6 How. 112 (12: 365); The Douro v. U. S. 70 U. S. 3 Wall. 564 (18:168). The prayer for and allowance of the appeal need not appear of record. Hudgins Kemp, 59 U. S. 18 How. 537 (15: 513). The acceptance of the security, followed by the signing of the citation, is, in legal effect, the allowance of an appeal. Sage v. Iowa Cent. R. R. Co. 96 U. S.712 (24: 641); First Nat. Bank v. Omaha, 96 U. S. 737 (24:881); Draper v. Davis, 102 U. S. 370 (26:121); Brandies v. Cochrane, 105 U. S. 262 (26: 989). Mr. Chief Justice Waite delivered the opinion of the court: The facts on which this motion rests are these: the decree from which the appeal was taken was rendered November 7, 1884, and contained on its face the allowance of an appeal to this court. That appeal was returnable to October Term, 1885, which began October 12 of that year. It does not appear that any bond was approved during the term at which the decree was rendered, but one was approved Oc Appeal, signing of citation is-time allowed to tober 10, 1885, which was before the beginning file bond. Submitted Jan. 9, 1888. Decided Jan. 30, 1888. APPEAL from the Ctern District of Texas. PPEAL from the Circuit Court of the United On motion to dismiss. Ordered dismissed unless bond be filed. The facts are stated in the opinion. Mr. S. S. Henkle, for appellee, in support of motion: If the appeal is not docketed at the first term of this court after it is taken, it becomes void. A citation issued and served after the expiration of the appeal is of no avail. More than two years having elapsed since the decree was rendered, no new appeal can now be taken. Castro v. U. 8. 70 U. S. 3 Wall. 46 (18:163); of the return term. A citation was signed November 2, 1885, after that term began, requir ing the appellee to appear in this court on the second Monday in October, 1886. This citation was served February 17, 1886; but the case was not docketed in this court until June 11, 1886, which was after our term of 1885 ended, but before that of 1886 began. The bond approved October 10, 1885, must be deemed to have been taken under the appeal allowed in open court; and as that appeal became inoperative by reason of the failure to docket it here during the term of 1885, the only question we have now to determine is, whether the signing of the citation November 2, 1885, was in effect the allowance of a new appeal, returnable at the term of 1886. We have just decided in Brown v. McConnell [ante, 495] that it was; but as the bond which was executed October 10, 1885, became inoperative by the failure to docket the first appeal in time, we now order that this appeal be dismissed, unless the appellant shall, on or before the 19th day of March next, file with the clerk of this court a bond in the penal sum of $500, conditioned according to law, for the purposes of the appeal, with sureties to the satisfaction of the Justice of this Court allotted to the Fifth Circuit. [465] 1466] JOSEPH J. SMITH, Piff. in Err., D. STATE OF ALABAMA. (See 8. C. Reporter's ed. 465-483.) Alabama Statute requiring locomotive engineers to be licensed-not invalid-effect of-power of Congress-fee for license. 1. The Statute of Alabama requiring locomotive engincers to be examined and licensed is not a regulation of interstate commerce, and does not therefore contravene the Constitution of the United States, and is valid. 2. Such statute is properly an act of legislation, within the power reserved to the State to regulate the relative rights and duties of persons within its territory, intended to secure for the public safety of person and property, of Alabama, for the violation of which he was The facts, as they appeared upon the hearing 3. Such statute, so far as it affects transactions of commerce among the States, does so indirectly, incidentally and remotely, and not so as to burden or impede them; and in the particulars in which it touches those transactions at all it is not in conflict with any enactment of Congress on the subject, nor contrary to any intention of Congress to be presumed from its silence. Argued Jan. 4, 1888. Decided Jan. 30, 1888. Statement by Mr. Justice Matthews: pany, was regularly from the City of Mobile, It was admitted that the petitioner had not [467] [468] 1 1887. SMITH V. ALABAMA. having been duly appointed by the Governor of | every railroad in this State of the action of the The Statute of Alabama, the validity of which is thus drawn in question, as being contrary to the Constitution of the United States, and the validity of which has been affirmed by the judgment of the Supreme Court of Alabama now in review, is as follows: "AN ACT to Require Locomotive Engineers in this State to be Examined and Licensed by a Board to be Appointed by the Governor for That Purpose. "Section 1. Be it enacted by the General Assembly of Alabama, That it shall be unlawful for the engineer of any railroad train in this State to drive or operate or engineer any train of cars or engine upon the main line or roadbed of any railroad in this State which is used for the transportation of persons, passengers, or freight, without first undergoing an examination and obtaining a license as hereinafter provided. "Sec. 2. Be it further enacted, That before any locomotive engineer shall operate or drive an engine upon the main line or roadbed of any railroad in this State used for the transportation of persons or freight, he shall apply to the board of examiners hereinafter provided for in this Act, and be examined by said board or by two or more members thereof, in practical mechanics, and concerning his knowledge of operating a locomotive engine and his competency as an engineer. "Sec. 3. Be it further enacted, That upon the examination of any engineer as provided in this [469] Act, if the applicant is found competent, he shall, upon payment of five dollars, receive a license, which shall be signed by each member of the board, and which shall set forth the fact that the said engineer has been duly examined as required by law and is authorized to engage as an engineer on any of the railroads in this State. "Sec. 4. Be it further enacted, That in addition to the examination provided for in section two (2), it shall be the duty of said board of examiners, before issuing the license provided for in this Act, to inquire into the character and habits of all engineers applying for license; and in no case shall a license be issued if the applicant is found to be of reckless or intemperate habits. "Sec. 5. Be it further enacted, That any engineer who, after procuring a license as provided in this Act, shall at any time be guilty of any act of recklessness, carelessness, or negligence while running an engine, by which any damage to persons or property is done, or who shall within six hours before, or during the time he is engaged in running an engine, be in a state of intoxication, shall forfeit his license, with all the rights and privileges acquired by it, indefinitely or for a stated period, as the board may determine after notifying such engineer to appear before the board, and inquiring into his act or conduct. It shall be the duty of the board to determine whether the engineer is unfit or incompetent by reason of any act or habit unknown at the time of his examination, or acquired or formed subsequent to it; and if it is made to appear that he is unfit or incompetent from any cause, the board shall revoke or cancel his license, and shall notify "Sec. 6. Be it further enacted, That it shall be the duty of the Governor, as soon after the approval of this Act as practicable, to appoint and commission five skilled mechanics, one of whom shall reside in Birmingham, one in Montgomery, one in Mobile, one in Selma, and examiners for locomotive engineers. It shall one in Eufaula, who shall constitute a board of be the duty of said board to examine locomotive engineers, issue licenses, hear causes or cancel licenses, of complaint, revoke and perform such duties as are provided in this Act; Provided, That any one of said board shall have authority to examine applicants for licenses, and if the applicant is found competent, to issue license to him; Provided further, That for every examination provided in this Act, the board or member thereof making the examination shall be entitled to five dollars, to be paid by the applicant. "Sec. 7. Be it further enacted, That all engineers now employed in running or operating engines upon railroads in this State shall have three months after the appointment of the board herein provided within which to be examined and to obtain a license. "Sec. 8. Be it further enacted, That any engineer violating the provisions of this Act shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than fifty nor more than five hundred dollars, and may also be sentenced to hard labor for the county for not more than six months." Messrs. E. L. Russell and B. B. Boone, for plaintiff in error: The power to regulate commerce with foreign Nations, and among the several States, is exclusively vested in Congress. Gibbons v. Ogden, 22 U. S. 9 Wheat. 1 (6:23); Passenger Cases, 48 U. S. 7 How. 283 (12: 702); Mobile County v. Kimball, 102 U.S. 691 (26:238); Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (29: 158); Fargo v. Michigan, 121 U. S. 231 (30: 890); W. U. Tel. Co. v. Pendleton, 122 U.S. 347 (30: 1187). The transportation of passengers and freight from one State to another is interstate commerce. Gloucester Ferry Co. v. Pennsylvania, supra. The nonexercise of the power in respect to the regulation of commerce between the States is equivalent to a declaration that such commerce shall be free and untrammeled. Welton v. Missouri, 91 U. S. 275 (23: 347); Brown v. Houston, 114 U.S. 622 (29: 257); Gloucester Ferry Co. v. Pennsylvania, supra; Pickard v. Pullman S. Car Co. 117 U. S. 34 (29: 785); Wabash, St. L. & P.R. Co. v. Illinois, 118 U. S. 557 (30: 244); Walling v. Michigan, 116 U. S. 446 (29: 691); Corson v. Maryland, 120 U. S. 502 (30: 699); Hall v. DeCuir, 95 U. S. 485 (24: 547); Hannibal & St. J. R. R. Co. v. Husen, 95 U. S. 465 (24: 527). Interstate commerce must be open and free to all persons unless restricted by congressional legislation. Webber v. Virginia, 103 U. S. 344 (26: 565); Henderson v. Mayor of N. Y., 92 U. S. 259 (23: 543); People v. Compagnie Générale Transatlantique, 107 U. S. 59 (27: 383). 509 A State will not be permitted to impose con- | Mass. 254; People v. Boston & A. R. R. Co. 70 N. ditions which will amount to a regulation of Y.569; R. R. Comrs. v. Portland & O. Cent. R.R. interstate commerce. Co. 63 Me. 269; Davidson v. State, 4 Tex. App. 545; Tiedeman, Lim. Police Powers, § 194; Cooley, Const. Lim. 5th ed. 579, et seq. State quarantine laws do not derive their va lidity from their adoption by Congress. Pensacola Tel. Co. v. W. U. Tel. Co. 96 U.S. 1 (24: 708); Cooper Mfg. Co. v. Ferguson, 113 U. S. 727 (28: 1137); Case of State Freight Tax, 82 U. S. 15 Wall. 232 (21: 146); The Montello, 78 U. S. 11 Wall. 411 (20: 191); Passenger Cases, supra; Robbins v. Shelby County Taxing Dist. 120 U. S. 489 (30: 694); Fargo v. Michigan, 121 U. S. 247 (30: 895). The Act of the State of Alabama requiring locomotive engineers, engaged solely in interstate transportation, to pay for and take out a license before engaging in the business of interstate commerce is unconstitutional and void. Mobile County v. Kimball, supra; Cooley v. This law is to be tested by its terms as they La Fayette Ins. Co. v. French, 59 U. S. 18 How. 404 (15: 451); Ducat v. Chicago, 77 U. S. The grant of power to Congress in the Con10 Wall. 410-415 (19: 972, 973); Home Ins. Co. stitution to regulate commerce with foreign v. Morse, 87 U. S. 20 Wall. 445-456 (22: 365-Nations and among the several States, it is con369 St. Clair v. Cox, 106 U. S. 350-356 (27: ceded, is paramount over all legislative powers 222-225): Philadelphia Fire Asso. v. New York, which, in consequence of not having been 119 U.S.110-120 (30: 342-347); Barron v. Burn- granted to Congress, are reserved to the States. side, 121 U.S. 200 (30: 919); Welton v. Missouri, It follows that any legislation of a State, alsupra; Cook v. Pennsylvania, 97 U. S. 566 (24: though in pursuance of an acknowledged 1015); Gloucester Ferry Co. v. Pennsylvania, 114 power reserved to it, which conflicts with the U. 196 (29: 158); Fargo v. Michigan, 121 U. actual exercise of the power of Congress over S. 244 (30: 894); Robbins v. Shelby County Tax the subject of commerce, must give way before ing Dist., Pickard v. Pullman §. Car Co. and the supremacy of the national authority. As Cooper Mfg. Co. v. Ferguson, supra; W. U. Tel. the regulation of commerce may consist in abCo. v. Texas, 105 U. S. 460 (26: 1067); W. U. staining from prescribing positive rules for its Tel. Co. v. Pendleton, 122 U. S. 347 (30: 1187). conduct, it cannot always be said that the power Mr. T. N. McClellan, for defendant in to regulate is dormant because not affirmatively exercised. And when it is manifest that Con error: The State is entrusted with the duty of creat-gress intends to leave that commerce, which is ing and maintaining all those internal regulations which are necessary for the preservation of, and the prevention of injury to, the rights of others. Tiedeman, Lim. Police Powers, & 201; Mayor of N. Y. v. Miln, 36 U. S. 11 Pet. 102 (9: 648); Chy Lung v. Freeman, 92 U. S. 280 (23: 552). A State may exercise its police power even though in doing so it may incidentally operate upon commerce. Munn v. Illinois, 94 U. S. 135 (24: 87); Hannibal & St. J. R. R. Co. v. Husen, 95 U. S.473 (24: 531); Patterson v. Kentucky, 97 U. S. 504 (24: 1116); Mobile County v. Kimball, 102 U. S. 698 (26: 240); Morgan's La. & T. R. R. & S. S. Co. v. Louisiana Health Bd. 118 U. S. 455 (30: 237). subject to its jurisdiction, free and unfettered There are many cases, however, where the acknowledged powers of a State may be exerted and applied in such a manner as to affect foreign or interstate commerce without being intended to operate as commercial regulations. If their operation and application in such cases regulato such commerce, so as to conflict with the reg. ulation of the same subject by Congress, either as expressed in positive laws or implied from the absence of legislation, such legislation on the Patterson v. Kentucky and Chy Lung v. Free-part of the State, to the extent of that conflict, man, supra; Hannibal & St. J. R. R. Co. v. Husen, 95 U. S. 465 (24: 527). If there is no field for the exercise of police power, the state legislation will be held inoperative and void. The States, in the absence of congressional legislation, may enact laws to prevent the landing in their ports of the pauper and criminal classes. Mayor of N. Y. v. Miln, 36 U. S. 11 Pet. 103 (9: 648); Henderson v. Mayor of N. Y. 92 U. S. 259 (23: 543); People v. Compagnie Générale Transatlantique, 107 U. S. 59 (27: 383). [473] must be regarded as annulled. To draw the line of interference between the two fields of jurisdiction, and to define and declare the instances of unconstitutional encroachment, is a judicial question often of much difficulty, the solution of which, perhaps, is not to be found in any single and exact rule of decision. Some general lines of discrimination, however, have been drawn in varied and numerous decisions of this court. It has been uniformly held, for example, that the States cannot by legislation place burdens upon commerce with foreiga [474] Nations or among the several States. "But McDonald v. State, 81 Ala. 283; Chicago & N. upon an examination of the cases in which they W. R. Co. v. Fuller, 84 U.S. 17 Wall. 560 (21: were rendered," as was said in Sherlock v. Al710); Mobile & O. R. R. Co. v. State, 51 Miss.ing, 93 U. S. 99, 102 [23:819, 820], "it will be 137; Commonwealth v. Eastern R. R. Co. 18 fond that the legislation adjudged invalid im. Police regulations of this nature, incidentally affecting commerce, have been sustained by the courts. |