May Introduce Evidence on Motion.-In Conover v. State, 23 the lower court heard evidence on the part of the State, contradicting the facts set forth in defendant's affidavit, and the court say in substance, that the lower court committed no error in permitting the State to introduce evidence on any of the matters presented by the motion.

Statutes. Some statutes provide for the withdrawal of pleas of guilty, and permitting other pleas to be substituted therefor, but generally providing that such motions must be entered before judgment.24 Some cases have been cited to the effect that after judgment, in no event, can the plea of guilty be withdrawn and the plea of not guilty substituted; but most of those cases are decided under statutes, which limit the time of withdrawing such pleas, and therefore can have no application to the general principle.25

We would conclude from an examination of all the cases upon the subject, that where there is an inducement of any kind held out to the prisoner, by reason of which he enters the plea of guilty, that it will, at all events, better comport with a sound judicial discretion, to allow the plea withdrawn, and the plea of not guilty entered, and especially so, when counsel and friends represent to the accused that it has been the custom and common practice of the court to assess a punishment less than the maximum upon such a plea; but of course we would admit as a re

The burden of this case seems to be that after sentence is once passed, it is too late to withdraw the plea of guity.

23 86 Ind. 99; s. c. 5 Criminal Law Mag. 140.

24 At any time before judgment, the court may permit the plea of guilty to be withdrawn, and other plea or pleas substituted." Sec. 4362. McClain's Annotated Statutes, 1880. (Iowa).

25 State v. Oehlslager, 38 Iowa 297; State v. Buck, 59 Iowa 382; s. c. 13 N. W. Rep. 342; 5 Criminal Law Mag. 460.

striction to this statement, the reasonable argument of the Mississippi court; for not to do so, would be to place a premium upon crime, confessed. M. W. HOPKINS, Danville, Ind.

CARRIAGE OF FREIGHT.

The functions of railroad companies in the transportation of merchandise are of such great legal as well as commercial interest, that a survey of the decisions upon the subject can hardly fail to be of benefit to the practitioner. The questions arising in this department of the law are of too great scope, however, to be discussed within the compass of an article like the present, while it is more useful as well as convenient to state the results of decisions whose basis and grounds will be sought in any event, by actual reference to the opinion. The succinct summary here given is therefore merely designed to guide the busy member of the profession to the sources of information and to suggest the data for investigation, though it is hoped it may be found productive of more practical advantage than more extended commentary always yields.

Safe Transportation and Delivery.-Railway Companies are insurers of the safe transportation and delivery of the property intrusted to them for carriage,' except as against loss or injury caused by the immediate act of God,2 or of a public enemy.3 But after a safe delivery of the goods in the proper warehouse of the company, and the consignee has had a reasonable time for tak

1 Fitchburg etc. N. M. Co. v. Hanna, 6 Grey, 539; Kiff v. Old Colony, etc. Ny. Co. 117, Mass. 591; s. c. 19 Am. Rep. 429; Read v. St. Louis etc. R. R. Co., 60 Mo. 199; Pruitt v. Hannibal etc. R. R. Co., 62 Id. 527; Chicago etc. R. R. Co. v. Ames, 40 Ill. 249; Illinois Cent. R. R. Co. v. Cobb, 64 Id. 128.

2 Sweetland v. Boston etc. R. R. Co., 102 Mass. 276; Michalls v. N. Y. etc. R. R. Co., 30 N. Y. 564; Condict v. Grand Trunk Ry. Co., 54 Id. 500; Chicago etc. Ry. Co. v. Sawyer, 69 Ill. 285; s. c. 18 Am. Rep. 613; Railroad Co. v. Reeves, 10 Wall. 176.

3 Thomas v. Boston etc. R. R. Co., 10 Met. 472; Phila. etc. R. R. Co. v. Harper, 29¡Md. 330; Patterson v. North Car. R. R. Co.,64 No. Car. 147; Nashville etc.. R. R. Co. v. Estis, 7 Heisk. Tenn. 622; Jackson v. Sacramento etc. R. R. Co., 23 Cal. 268; Compare Porchie v. North Eastern R. R.'Co., 14 Rich. (So. Car.) 181; Ill.. etc. R. R. Co. v. Mc. Clellen, 54 Ill. 58; Ill. etc. R. R.. Co. v. Homberger, 77 Id. 457.

ing them away, the liability of the company as carrier ceases, and it will hold the goods as a warehouseman only; 5 in which case the the company is bound to no more than ordinary care, or such as a man of ordinary prudence would use in respect to his own property placed in like circumstances.7

6

8

Continuance of Liability.-The liability of a common carrier continues until the goods are unloaded; and if they are destroyed by fire while yet in the car in the freight depot, the company is liable. But in a recent case it has been held that a company is not liable for loss of goods accidentally destroyed by fire, without its fault or negligence, after they had been unloaded and placed in the company's warehouse, and notice given of their arrival.10 A railroad company is under no obligation, as a common carrier, to deliver goods at a point beyond or off its own line of road," but such a duty can be created by contract or by a course of business warranting the presumption that the goods will be so delivered. 18

12

4 See authorities cited in next note.

5 New Jersey R. R. Co. v. Penn. R. R. Co., 27 N. J. L. 100; Culbreth v. Phil. etc. R. R. Co., 3 Houst. (Del.) 392; Mobile etc. R. R. Co. v. Prewitt, 46 Ala. 63; Mich. etc. R. R. Co. v. Shuntz, 7 Mich. 511; Derosia v. Winona etc., R. R. Co., 18 Minn. 133; Whitney v. Chicago etc. R. R. Co., 27 Wis. 327; Francis v. Dubuque etc. R. R. Co., 25 Iowa 60; Mohr. v. Chicago etc. R. R. Co., 40 Id. 579; Compare Hedges v. Hudson River R. R. Co., 6 Robt. 119; Southwestern R. R. Co. v. Felder, 46 Ga. 433; Railroad Co. v. Maine, 16 Kan. 333;

6 Pike v. Chicago etc. R. R. Co., 40 Wis. 583.

7 Pike v. Chicago etc. R. R. Co., 40 Wis. 583; Com

pare Brown v. Grand Trunk Ry., 54 N. H. 535.

8 Chicago etc. R. R. Co. v. Bensley, 69 Ill. 630.

9 Chicago etc. R. R. Co. v. Bensley, 69 Ill. 630; and see Winslow v. Vt. etc. R. R. Co., 42 Vt. 700; Rice v. Hart, 118 Mass. 201; Central R. R. Co. v. Smith, 54 Ga. 499.

10 Hirschfield v. Cent. Pac. R. R. Co., 56 Cal. 484; Upon the strength of a statutory provision (Cal. Civ. Code § 2120) changing the liability of the company in such cases from that of a common carrier to that of a warehouseman; Ibid. And in another late case, where the goods were placed, on arrival upon the depot platform, and notice given to the consignee, who delayed removal, from difficulty in getting a drayman, until the goods were destroyed by fire on the second day, it was held that the company was not liable, even though the fire originated in a building erected by its permission on its premises; Chalk v. Charlotte R. R., 85 N. C. 423.

11 Norway Plains Co. v. Boston etc. R. R., 1 Gray 263; People v. Chicago etc. R. R. Co., 55 Ill. 95; Cobb v. Railroad Co., 38 Iowa 601; and Compare Pinney v. Charlotte etc. R. R. Co., 66 No. Car. 34; Leavenworth etc. R. R. Co. v. Maris, 16 Kan. 333.

12 Southern Express Co. v. McVeigh, 20 Gratt. 264; Cobb v. Railroad Co., 38 Iowa 601.

13 Cobb v. Railroad Co., 38 Iowa 601; and see Balti

Providing Adequate Cars.-It is the duty of the company to provide cars of sufficient strength; 14 another fact that the shipper knowingly permits his goods to be packed in an insufficient car does not exempt the company from liability,15 unless he agrees to assume that risk. 16 But if the shipper personally superintends the loading of the car, the company will not be liable for a loss resulting from its being unskilfully or negligently done.17

Carriage o Live-Stock.-The rule requiring the company to provide cars of sufficient strength, 18 applies in respect of cars for the carriage of live stock,19 as well as to those for the carriage of merchandise.20 But in the carriage of live stock, in the absence of negligence the company is not liable for such injuries as occur in consequence of the vitality of the freight.21 So that if one horse inflicts an injury upon another during transportation, the company is not liable, if the injury was caused by the peculiar propensities of the horse to fright or bad tempter, or by the fault of their owner in attaching their halters, or not removing their shoes.22

more etc. R. R. Co. v. Green, 25 Md. 72; Pittsburg etc. Ry. Co. v. Nash, 43 Ind. 423; Cuhn v. Mich. etc. R. R. Co., 71 Ill. 96.

14 St. Louis etc. Ry. Co. v. Dorman, 72 Ill. 504; Sloan v. St. Louis etc. R. R. Co., 58 Mo. 220.

15 Pratt v. Ogdensburgh etc. R. R. Co., 102 Mass. 557.

16 Pratt v. Ogdensburg etc. R. R. Co., 102 Mass. 557; Compare Lee v. Raleigh etc. R. R. Co., 72 No. Car. 236; Illinois Cent. R. R. Co. v. Hall, 58 Ill. 409.

17 Ross v. Troy etc. R. R. Co., 49 Vt. 364; East Tenn. etc. R. R. Co. v. Whittle, 27 Ga. 535; Chicago etc. R. R. Co. v. Shea, 66 Ill. 471; Clauber v. Ames. Express Co., 21 Wis. 21.

18 See preceding subdivision of this article. 19 See authorities cited in the note.

20 Indianapolis etc. R. R. Co. v. Allen, 31 Ind. 394: Indianapolis etc. Ry. Co. v. Strain, 81 Ill. 504. Duty of railway companies to care for animals in course of transportation; see U. S. Rev. Stats. §§ 4386-4390.

21 Penn. v. Buffalo etc. R. R. Co., 49 N. Y. 204; s. c. 10 Am. Rep. 355; Cragin v. N. Y. etc. R. R. Co. 51 N. Y. 61; Mich. Southern etc. R. R. Co. v. McDonough, 21 Mich. 165; s. c. 4 Am. Rep. 466; Blower v. Great Western Ry. Co., Law R. 7 Com. P. 655; Kendall v. London etc. Ry. Co., Law R. 7 Ex. 373.

22 Evans v. Fitchburg R. R. Co., 111 Mass. 142; 15 Am. Rep. 19. For basis of foregoing paragraphs, and preceding subdivisions, see Boone Corp. § 258. In carrying of cattle at "owner's risk rates" limitation against liability held to apply only to carriage and not to refusal to deliver. Gordon v. Great W. R. Co., 45 L. T. N. S. 509; 25 Alb. L. J. 218. Liability of company for injury to sheep carried, caused by burning of material used by them, despite release in contract, where caused by negligence in not furnishing appliances against fire; Holsapple v. Rome etc. R. R., 86

con

re

Limiting Liability.-While a common carrier cannot exonerate himself from liability for his negligence or misfeasance, yet he may, by special agreement, fairly made, limit his common law liability, provided such limitation is reasonable and just, and does not contravene any laws or a sound public policy.23 And in a recent case where in an agreement between a railway company and a shipper for the transportation of horses over the railway, there was a stipulation which provided that, as a dition precedent to his right to cover damages for any loss or injury to the horses while in transit, the shipper would give notice in writing of his claim therefor to some officer of the said railway company or its nearest station agent, before the horses were removed from the place of destination, or from the place of delivery to the shipper, and before such horses were mingled with other stock, it was held that the agreement is reasonble, and when fairly made, is binding upon the parties thereto.24 So in another late case where a railroad company received merchandise to be transported to a point beyond its own law of railroad, over its own and other lines of roadroad connecting with it, and gave to the shipper its receipt, stating that the merchandise was shipped "at owner's risk," it was held that this receipt is a special contract limiting the liability of the carrier; 25 and that such connecting lines of railroad are entitled to the benefits of the exemptions from liability contained in it.26 San Francisco, Cal.,

A. J. DONNER.

N. Y. 275. Compare succeeding subdivision on Limiting Liability.

Sprague v. Missourri Pac. Ry. Co., (Kan.) 8 Pac. Rep. 465, and note, 469.

24 Sprague v. Missouri Pac. Ry. Co., 8 Pac. Ry. Co., 465. Following Gaggin v. Kansas Pac. Ry. Co., 12 Kan. 416; See also Rice v. Kansas Pac. Ry. Co., 63 Mo. 314; Oxley v. St. Louis etc., Ry. 65 Id. 629; Dawson v. St. Louis etc. Ry. Co., 76 Id. 514; Express Co. V. Caldwell, 21 Wall. 264; Texas Cent. Ry. v. Morris, 16 Am. and Eng. R. R. Cas. 259, and cases there cited.

25 Kiff v. Atchiston etc. R. R. Co., (Kan.) 4 Pac. Rep. 401.

26 Kiff v. Atchison etc. R. R. Co., 4 Pac. Rep. 401. And that neither of the companies running such connecting lines is liable for damages to the merchandise transported, unless it is shown that such damages arise from the negligence of the company sought to be charged; lbid. See also Steamboat Emily v. Carney, 5 Kan. 645; Mo. Pac. Ry. Co. v. Haley, 25 Id. 36; K. C. etc. R. Co. v. Simpson, 30 Id. 645; Whitworth v. Erie Ry. Co., 87 N. Y. 413; Shear. & Redf. Negl. § 12.

Supreme Court of the United States, Dec. 1885.

1. Gas-Light Companies-Louisville Gas CompanyPublic Services-The grant by the legislature of Kentucky, in 1869, to the Louisville Gas Company, for the term of twenty years, of "the exclusive privilege of erecting and establishing gas-works in the city of Louisville, and of vending coal gas-lights, and supplying the city and citizens with gas by means of public works,"that is,by means of pipes laid in the streets and public ways of that city, constituted a contract, within the meaning of the national constitution, and was not forbidden by that clause in the bill of rights of Kentucky which declares that "all freemen, when they form a social compact, are equal, and that no man or set of men are entitled to exclusive, separate public emoluments or privileges from the community, but in consideration of public services." Within the meaning of that clause the services which the company undertook to perform were public services, affecting the interests and rights of the public generally.

2. Right to Repeal or Amend Charter.-By a general statute of Kentucky, passed in 1856, it was declared that "all charters and grants of or to corporations, or amendments thereof, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be expressed; provided, that while privileges and franchises so granted may be changed or repealed, no amendment or repeal shall impair other rights previously vested;" also that the provisions of that statute shall only apply to charters and acts of incorporation to be granted hereafter." By an act passed in 1869, amendatory of the charter of the Louisville Gas Company of 1867, and granting the exclusive privileges beføre mentioned, it was provided that "no alteration or amendment to the charter of the gas company shall be made without the concurrence of the city council and the directors of the gas company." Held, that the last act "plainly expressed" an intent that the charter of the company should not be subject to amendment or repeal at the mere will of the legislature, but only with the concurrence of the city council and the company's directors.

3. Injunction.-According to the principles announced in New Orleans Gas-Light Co. v. Louisiana Light, etc., Co., the Citizens' Gas-Light Company, incorporated in 1872, and endowed with the privilege of manufacturing and distributing gas in the city of Louisville, by means of pipes and mains laid in its streets and public ways, is not entitled to an injunction restraining the Louisville Gas Company from claiming and exercising the exclusive privileges granted by its charter.

In Error to the Court of Appeals of the State of Kentucky.

This is a writ of error to the highest court of Kentucky. The general question to be determined is, whether certain legislation of that commonwealth is in conflict with the clause of the National Constitution, which forbids a State to pass

any law impairing the obligation of contracts. The appellant, the Louisville Gas Company, contends that its charter, granting certain exclusive rights and privileges, constituted, within the meaning of that Constitution, a contract, the obligation of which has been impaired by the charter subsequently granted to the appellee, the Citizens' Gaslight Company. The Court of Appeals of Kentucky sustained as constitutional the legislation under the authority of which the latter company is exercising the rights, privileges, and franchises conferred by its charter.

By an Act of the General Assembly of Kentucky, approved February 15, 1838 (Sess. Acts 1837-38, p. 206), the Louisville Gas & Water Company was created a corporation, to continue for the term of thirty years from January 1, 1839. It was made its duty, within three years after its organization, to establish in Louisville a gas manufactory of sufficient extent and capacity to supply that city and its people with such public and private lights as might from time to time be required, and within five years after the establishment of its gas-works, to erect and establish water-works sufficient to supply the city with water for the extinguishment of fires, for the cleansing and sprinkling of streets and alleys, and for all manufacturing and domestic purposes; to which end it might lay down and extend pipes through any of the streets and alleys of the city, the company being responsible to the city for any damages resulting therefrom. The act imposed a limit upon the price to be charged for gaslights used by the city, and gave the latter the right to subscribe for 4,000 shares in the company,payment for onehalf of which could be made in city coupon bonds for $200,000, redeemable at any time within three years after the expiration of the company's charter. It was made a fundamental condition that, upon the termination of the company's charter, the city at its election could take the gas and water works at a fair estimate of what they would cost and be worth at that time, to be ascertained by the judgment of competent engineers, selected by the parties, or, in case they disagreed, by the Louisville Chancery Court. Under this charter the company proceeded at once to erect gasworks, inclu ing suitable buildings and machinery. It supplied itself with all necessary apparatus, laid down mains and pipes, and erected lampposts, for the purpose of lighting the streets. It supplied gas for the public buildings and for street lights, as well as for domestic purposes. And it continued to do so during the term of its original

charter.

By an act passed in 1842, the authority to erect water-works was withdrawn by the legislature. By an act entitled "An act to extend the charter of the Louisville Gas Company," approved January 1, 1867, and to continue in force for twenty years from that date, unless the city of Louisville should exercise its privilege of purchasing the works established under the authority of the orig

inal charter. That act created a corporation by the name of the "Louisville Gas Company," with a capital stock of $1,500,000. It provided, among other things, that such stock should consist, "First, of the stock of the present Louisville Gas Company, on the thirty-first of December, 1868, at par value; secondly, of the contingent fund and undivided profits that the company may own at the expiration of the present charter, said fund to be capitalized pro rata for the benefit of the present stockholders, except fractional shares, which shall be paid in cash; and, thirdly, new stock may be issued and sold by the new company, when required, to the extent of the capital stock, the sales to be made at public auction, after ten days' notice in the city papers; should said stock be sold above its par value, such excess shall not be capitalized or divided among the stockholders, but be employed in the first extensions made by the company after the sale of said stock;" that the business of the company should be to make and furnish gas to the city of Louisville and its residents; within two years after its charter took effect, should extend the gas distribution to Portland, and lay down mains, and erect street lights in certain named streets in that part of the city; should extend mains wherever the private and public lights would pay eight per cent. on the cost of extension, until its entire capital was absorbed in the gas-works and extensions-continuing the use of the pipes and conductors already laid down, and, with the consent of the city council, extending the pipes and conductors through other streets and alleys of the city. It was also provided that the company should put up gaslamps at certain distances apart on the streets where there were mains, supply the same with gas, and light and extinguish the same, and charge the city only the actual cost thereof,—such charges not to exceed the average charges for similar work or service in the cities of Philadelphia, Baltimore, Cincinnati, Chicago, and St. Louis, and the charges against other consumers not to be greater than the average price in said cities; that the stockholders, exclusive of the city of Louisville, should elect five directors, while the general council of the city should elect four; that the city might, upon the termination of the charter. purchase the gas-works at a fair estimate of what they would be then worth; and that the charter should be valid and in force when accepted by those who held the majority of stock in the old company, all of whose property should belong to the new company.

When the act of 1867 was passed, the city owned 4,985 shares of the stock of the old company. All the gas with which its streets were then lighted, or which was furnished to its people, was supplied by that company.

On the twenty-second of January, 1869, an act was passed amending that of January 30, 1867. Its preamble recites that the city of Louisville and the stockholders of the old company had ac

cepted the extended charter, and desired that the amendments embodied in that act should become part of that charter. The amended charter repealed so much of the act of 1867 as allows a profit of eight per cent. on the cost of extensions, and, among other things, provides that the company shall extend its main pipes whenever the public and private lights, immediately arising from said extension, will pay seven per cent. profit on the cost thereof; that the company shall put lamp-posts, fixtures, etc., along the street mains, as they are extended, at a distance apart of about two hundred feet; shall keep the lamps in order, furnish gas, and light and extinguish the same. each light to have an illuminating power of about twelve sperm candles; shall furnish public lights to the city at actual cost, which shall in no event exceed annually $35 per lamp; that the charges to private consumers shall be so graded that the company's ptofits shall not exceed twelve per cent. per annum on the par value of the stock, ten per cent. of which may be drawn by stockholders in semi-annual dividends, and the remaining two per cent. to be laid out for extensions, not to be capitalized except at the end of five years. The fifth and sixth sections of the last act are as follows: “(5) That said gas company shall have the exclusive privilege of erecting and establishing gas-works in the city of Louisville during the continuation of this charter, and of vending coal gas-lights, and supplying the city and citizens with gas by means of public works: provided, however, this shall not interfere with the right of anyone to erect, or cause to be erected, gas-works on their own premises, for supplying themselves with light. (6) That no alteration or amendment to the charter of the gas company shall be made without the concurrence of the city council and the directors of the gas company."

By an act approved March 21, 1872,the Citizens' Gaslight Company of Louisville was incorporated for the term of fifty years, with authority to make, sell, and distribute gas for the purpose of lighting public and private buildings, streets, lanes, alleys, parks, and other public places in that city and its vicinity. It was authorized, the general council consenting, to use the streets and other public ways of the city for the purpose of laying gaspipes, subject to such regulations as the city council might make for the protection of the lives, property, and health of citizens. That body did so consent by ordinance passed December 13, 1877. The Louisville Gas Company having claimed that the foregoing section of the act of January 22, 1869, granting the exclusive privileges therein defined, constituted a contract, the obligation of which was impaired by the charter of the plaintiff, and that the latter's charter was therefore void, the present suit was brought by the Citizens' Gaslight Company in the Louisville Chancery Court for the purpose of obtaining a perpetual injunction against the assertion of any such exclusive privileges, and against any interference with

the plaintiff's rights as defined in its charter. Among the rights asserted by the latter under its charter was "to make, sell, and supply coal gas for lighting the public buildings and other places, public and private," in Louisville and the adjoining localities, by means of pipes laid in the public ways and streets. The court of original jurisdiction dismissed the suit. Upon appeal to the Court of Appeals, the decree was reversed, with directions to issue a perpetual injunction restraining the Louisville Gas Company from claiming and exercising the exclusive right of manufacturing and supplying gas to the city of Louisville and its inhabitants.

Thomas F. Hargie, John K. Goodloe and John G. Carlisle, for plaintiff in error; John Mason Brown, George M. Davie, and Wm. Lindsay, for defendant in error.

Mr. Justice HARLAN, after stating the facts of the case in the foregoing language, delivered the opinion of the court:

men

Two of the judges of the State court held that the clause of the bill of rights of Kentucky, which declares that "all freemen, when they form a social compact, are equal, and that no man or set of are entitled to exclusive, separate public emoluments or privileges from the community but in consideration of public services" (Const Ky. 1799, art. 10, § 1; 1850, art. 13, § 1), forbade the general assembly of that commonwealth to grant to a private corporation the exclusive privilege of manufacturing and distributing gas, for public and private use, in the city of Louisville, by means of pipes and mains laid under the streets and other public ways of that municipality. The other judges were of opinion that that clause did not prohibit a grant by the State to a private corporation, whereby certain privileges were conferred upon the latter in consideration of its discharging a public duty, or of rendering a public service; that the municipality of Louisville being a part of the State government, there was a public necessity for gaslights upon its streets and in its public buildings, almost as urgent as the establishment of the streets themselves; that the services thus to be performed by the corporation were, in the judgment of the legislative department, an adequate consideration for the grant to it of exclusive privileges; and, conseqently, that the grant was a contract, the rights of the parties under it to be determined by the rules applicable to contracts between individuals.

While the judgment below, in view of the equal division in opinion of the judges of the State court, does not rest upon any final determination of this question by that tribunal, it cannot be ignored by us; for, at the threshold of all cases of this kind, this court must ascertain whether there is any such agreement on the part of the State as constitutes a contract within the meaning of the Constitution of the United States. If the services which the gas company undertook to perform, in consideration of the exclusive privileges granted