criminated against the plaintiff. The railway company pleaded want of jurisdiction in the state court over the subject matter, and contended that under Sections 8 and 9, exclusive jurisdiction was conferred upon the Interstate Commerce Commission and the Federal Courts. In disposing of this contention, the court, through Mr. Justice Lamar, stated:

"But Sections 8 and 9 standing alone, might have been construed to give Federal Courts exclusive jurisdiction of all suits for damages occasioned by the carrier violating any of the old duties which were preserved, and the new obligations which were imposed by the Commerce Act. And, evidently, for the purpose of preventing such a result, the proviso to Section 22 declared that nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition. to such remedies.' That proviso was added at the end of the statute, not to nullify other parts of the Act, nor to defeat rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a state court, recover for damages to property while in the hands of an interstate carrier; damages caused by delay in shipment; damages caused by failure to comply with its common law duties, and the like."

The claim for damages in the case quoted from, arose in 1902, prior to the Carmack Amendment; and it may be contended that the language used by the distinguished jurist might not be applicable to a similar situation occurring since the Amendment. Following this case, however, at the same. term, the court through the same justice, in the case of Eastern Ry. Co. of New Mexico, et al., v. Littlefield, et al., where the cause of action alleged was a failure of the railroad company to deliver 200 cars in accordance with a verbal agreement of the railway station agent, which were to be delivered in September or October, 1907, (subsequent to the passage of the Carmack Amendment), referred to the case of Pa. (7) 236 U. S. 140, 35 Sup. Ct. Rep. 489.

8

Ry. Co v. Puritan Coal Mining Co., and used this language:

"The decision in Pa. Ry. Co. v. Puritan Coal Mining Co. just decided, 237 U. S. 121, makes it unnecessary to do more than repeat that under the proviso to Section 22 of the Commerce Act, the state courts, by

virtue of their general jurisdiction, can determine the right of a shipper to damages for failure to supply cars in cases like that presented by the plaintiff's pleading in the present suit. There was, therefore, no error in overruling the defendant's demurrer."

To prove more conclusively, if possible, that Congress did not deprive state courts of jurisdiction in such matters, the case of Ill. Central Ry. Co. v. Mulberry Hill Coal Co. in error to the Supreme Court of the State of Ill., decided June 14, 1915, is here cited. This also was a suit on account of the failure of the Railway Co., an interstate carrier, to furnish cars, and wherein it was charged as unlawfully discriminating against the Coal Company. The court, through Mr. Justice Pitney, said:

"It is true that the Puritan case arose before the passage of the Hepburn Act of 1906, (meaning the Carmack Amendment), but there is nothing in the Amendments introduced by that Act to affect the jurisdiction of the state court in an action such as the present."

So, it must be perfectly clear to all that the Carmack Amendment did not destroy or affect any common law remedy theretofore existing, unless such remedy was diametrically opposed to the purposes of the Federal Act, or in direct conflict with some of its provisions. Like the repeal of statutes, the jurisdiction of courts is not defeated by implication, except in cases where the inference is irresistible. This was made clear by Mr. Justice Lamar in the case of Galveston, H. & S. A. R. Co. v. Wallace,10 wherein. it was stated:

"But the jurisdiction is not defeated by implication. And, considering the relation

between the Federal and state government, there is no presumption that Congress intended to prevent state courts from exercising the general jurisdiction already possessed by them, and under which they had the power to hear and determine causes of action created by Federal statute. Robb v. Connolly, 111 U. S. 512, supra.

"On the contrary, the absence of such provision would be construed as recognizing that where the cause of action was not penal, but civil and transitory, it was to be subject to the principles governing that class of cases, and might be asserted in a state court as well as in those of the United States. This presumption would be strengthened as to a statute like this, passed not only for the purpose of giving a right, but of affording a convenient remedy."

This case also involved the consideration of provisions 8 and 9 of this law and was for a failure of the interstate carrier to deliver certain goods which had been committed to its care for transportation. It results from the foregoing, that in all causes of action prior to the Hepburn law and the Carmack Amendment, wherein the state courts had jurisdiction, and the plaintiff had the right to sue in such state, charging the defendant with its common law liability, such right was left unaffected. On the other hand, damages claimed under the Hepburn law and the amendments thereto, because of the fixing and promulgating of discretionary rules by the carriers, and all cases in which the rules are attacked as being unfair or discriminatory (such questions calling for the exercise of judgment and discretion of the administrative power) are for the Commission, in the first instance, to say whether such rules are fair, or whether unjust discrimination has been made in favor of one class of shippers against another; and in such cases, no court, state or Federal, has jurisdiction. After the Commission has pronounced a rule of the carrier to be just, recovery for damages may then be sought either before the Commission or in a Federal Court of competent jurisdiction. If, however, the carrier's rule, as filed

with the Interstate Commerce Commission, is fair and reasonable, but has been unequally and unfairly applied, and a party sustains damage on account of the violation of the discriminatory enforcement of such rule, there is no administrative question involved, and the state courts have jurisdiction, concurrent with the Federal court. But a cause of action, arising on account of delay of, or damage to, or loss of an interstate shipment, is not provided for and does not arise under the Interstate Commerce law; and the Federal courts, in my judgment, would have no jurisdiction, unless there were other conditions present, bringing the case within the jurisdiction of such courts. This contention may well be demonstrated by an excerpt from the case of Atlantic C. L. Ry. Co. v. Riverside Mills. Mr. Justice Lurton wrote the opinion in this case, and it was there

said:

"The cause of action in the present case is not for damages resulting from any violation of the provisions of this Act. * But the cause of action was the loss of the

* *

plaintiff's property which had been intrusted to it as a common carrier, and that loss is in no way traceable to the violation of any provision of the Act to regulate commerce. Having sustained no damage which was a consequence to the violation of the act, the section has no application in this case."

And again, in the case of Galveston, H. & S. A. R. Co. v. Wallace,12 the same Justice, speaking for the court, said:

"It was contended that Texas & Pac. Rv. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, ruled that this jurisdiction was exclusive, and from that, it was argued that no suit could be maintained in a state court on any cause of action created either by the original Act of 1887 or by the Amendment of 1906; but damage caused by failure to deliver goods is in no way traceable to a violation of the statute and is not, therefore, within the provisions of Sections 8 and 9 of the Act regulating commerce."

This holding of the court also strengthens the view next presented, that the

right of a shipper to waive the special contract and charge the interstate carrier with its common law liability was not abrogated.

Coming to the third division of the subject, the question is: If a party who makes an interstate shipment of property under a through bill of lading, in pursuance of Section 20 of the Carmack Amendment, and the shipment is damaged through negligence of the carrier, may he waive such written contract and charge the interstate common carrier in a suit in a state court upon its common law liability? Or, in other words, does this law deprive the state courts in those states theretofore recognizing the common law procedure, of jurisdiction to entertain causes of action arising on account of the negligence of an interstate carrier, and from applying the common law procedure? As above stated, while able lawyers have held to the view that state courts have been deprived of all common law jurisdiction in such matters by the Carmack Amendment, (which they claim was the holding. of the court, in effect, in the case of Clegg v. St. Louis & S. F. Ry Co., also in the Croninger case,) notwithstanding such views. I am nevertheless persuaded that this question must be answered in the affirmative. And this is true even in the face of the language of Mr. Justice Lurton in the Croninger case,13 where he said:

"To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing Federal law at the time of his action, gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws."

Even if this language expresses the view of the court on the point involved, and even if this language were intended to limit the scope of the Hepburn law and the Amendment, I insist that this would not be sufficient to deprive the state courts from following the common law procedure

(13) Supra.

in the enforcement of rights under the Federal Act. And I hold to this view for the reason that at the time of the passage of the original Interstate Commerce Act in 1887, likewise on the date of the Carmack Amendment in 1906, the common law procedure, when not in direct conflict with the Federal statute, was recognized by the Federal courts and adopted as part of its system of procedure. Thus, if all rights and remedies under existing Federal law. were by the proviso of the Act preserved and, if an interstate shipper had the right in the Federal court to waive the shipping contract and declare upon the carrier's common law liability, necessarily, such rights were preserved, even under the language of the Supreme Court in the Croninger case, and necessarily in those states where the state courts adopt, recognize and follow the common law procedure, such a right in a shipper in the state courts was likewise preserved, under the express proviso of the Act.

This construction would in no wise be inconsistent with the purposes of the Federal law or in conflict with any of its provisions.

There can be no question but that the proviso in Section 22 of the original Act in express terms preserved in the shipper. all common law rights and remedies, which were not in direct conflict with any of the provisions thereof or wholly at variance with its purposes. All common law rights and remedies, (which were held by the court to be in addition and cumulative to the remedies and rights conferred by the Act), together with all rights and remedies contained therein, were, by the proviso in Section 20 of the Amendment, preserved and contained in force.

That the Federal court recognized such common law rights and remedies, is evidenced by the holding in the case of Southern Pacific Ry. Co. v. Arnott, et el,14 which decision was subsequent to the original Interstate Commerce Law of

(14) 50 C. C. A. 17.

1887, but prior to the Carmack Amendment. The right of a shipper to waive a special contract of interstate shipment and declare upon the carrier's common law liability, was expressly recognized. In the still later case of Southern Ry. Co. v. Mulberry Cotton Mills,15 subsequent to the Carmack Amendment, such rights | were again expressly recognized in the shipper.

As still stronger evidence that the state courts were not deprived of their common law jurisdiction or from following the common law procedure, and that an interstate shipper could waive any special contract of shipment, as provided for by Section 20 of the Carmack Amendment, the Supreme Court of Oklahoma has specifically recognized such rights. and remedies.16 And, as proof indisputable that this court committed no error in so holding, such rights in the state courts have, within the last year, been expressly upheld by the Supreme Court of the United States. As was said by that court in the case of Galveston H. & S. A. R. Co. v. Wallace,17 jurisdiction is not defeated by implication, and that the absence of express language withdrawing from state courts jurisdiction to enforce Federal rights in causes of action, civil and transitory, would be construed as recognizing such jurisdiction in such courts; especially if, as in the interstate commerce Act, it is clear that the purpose was to give new rights, as well as afford a convenient remedy. And, as said by Mr. Justice White in the case of Texas Pac. Ry Co. v. Abilene Cotton Oil Co.18

"The manifest purpose of the provision in question (the proviso to Section 22), was to make plain the intention that any specific remedy given by the Act should be regarded as cummulative when other appropriate common law or statutory remedies existed

for the redress of the particular grievance or wrong dealt with in the Act."

This language was quoted with approval by the court through Mr. Justice Lurton in the Croninger case, supra, and, in the late case of Pa. Ry. Co. v. Puritan Coal Mining Co.19 the language seems too clear and pointed to admit of the shadow of a doubt. After quoting the proviso in Section 22, it was said:

"That proviso was added at the end of the statute, not to nullify other parts of the Act, or to defect rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could in the state court recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by a failure to comply with its common law duties, and the like."

And on the same date, in the case of Eastern Ry. Co. of New Mexico v. Littlefield, et al,20 the same doctrine was adopted in a case against the interstate carrier for failure to furnish cars as agreed; and at the same time, but subsequently, the same right was recognized in an opinion by Mr. Justice Pitney, in the case of Illinois Central Ry. Co. v. Mulberry Hill Coal Co.21 So, it seems that, beyond all peradventure, the common law jurisdiction and the common law procedure in state courts in the enforcement of all causes of action under the interstate commerce law, (except such as may arise out of questions herein referred to, demanding the exercise of the administrative power of the Commission), were not affected by this national legislation. To say that the state courts have concurrent jurisdiction with the Federal court in the enforcement of rights created by or growing out of Federal legislation, and at the same time assert that such courts cannot follow the procedure pro

(19) Supra. (20) Supra. (21) Supra.

vided by the government of their creation, would be tantamount to saying that jurisdiction and authority did not in fact exist.

Congress has no power to directly vest any portion of the judicial power of the Federal judiciary in state courts, or to provide the procedure governing such courts. To admit that such power exists would be in effect admitting that the states have no independent police power. It cannot be doubted that Congress, recognizing the rule of comity, may, and often does, as a matter of convenience, use certain state officials, with their consent, including the judiciary, to carry out certain governmental functions and policies, some of which are limited to matters non-judicial in their nature; as, for instance, in the disposition of public lands, naturalization of aliens, the arrest and committal for trial of parties charged with violating the laws of the United States, and the performance of such other duties as may be regarded as incidental to, rather than a part of, the judicial power itself. In all such matters their acts are more in the nature of acts of special agents rather than the exercise of judicial power.

In enforcing rights created by and growing out of Federal legislation, the authority of state courts emanates from the sovereignty of their creation, and not from the Federal Government. It cannot be denied that in the enforcement of the substantive law creating the right, in all matters wherein the Federal Government has exclusive jurisdiction, the state courts are called upon to pronounce the law applicable to the case in judgment. They are not to decide merely according to the laws and the constitution of the state but according to the constitution, laws, and treaties of the United States -the Supreme law of the land. But as to the machinery whereby effect is to be given to these rights, the procedure provided by their own government must prevail. If this were not true, we would

have the anomaly of courts vested with. judicial power to adjudicate rights, yet with no fixed rules of procedure to execute such power, for, certainly to concede that the Federal Government may legislate for the state courts in this respect, would be to concede it in every other instance. On the other hand, if a portion of the procedure provided by the state for its own courts can be disregarded as inapplicable, then no part of such procedure may be followed, and public mischief of enormous magnitude would inevitably ensue. F. E. RIDDLE.

Chickasha, Okla.

BANKS AND BANKING FORGERY OF SAVINGS BANK CHECK.

NOAH V. BANK FOR SAVINGS IN THE CITY OF NEW YORK.

Supreme Court, Appellate Division, First Department. February 11, 1916.

157 N. Y. Supp. 324.

A savings bank is not liable for paying a forged draft, unless it is negligent in failing to detect the forgery, which can only be imputed to it where the discrepancy between the signature on the draft and that on the depositor's book is so marked and plain that an ordinary competent clerk, exercising reasonable care, should detect forgery.

SCOTT, J. This is an action by a depositor against a savings bank to recover the amount of the deposit, which was paid out upon forged drafts. On September 7, 1912, plaintiff had on deposit in the defendant savings bank the sum of $2,332.79. Her son, a young man about 20 years of age, having stolen the bank book, forged his mother's name to a draft for $300, payable to himself or bearer, and presented the draft, with the book, to defendant, and received said sum of $300, which was charged against plaintiff's account. Later he presented three other forged drafts, upon which he was paid the total amount of the deposit, in each case presenting the passbook with the draft.

Upon discovery of the facts, plaintiff demanded payment from the defendant, which was refused. On the trial the defendant gave