conform to the provisions of §§ 2236 to 2261, | proposed work, to issue bonds to raise the inclusive. Those sections do not relate to money necessary to meet the expenses of the modes of assessment, but only to the steps improvement. We ought not to hold the to be taken by a municipal corporation when statute invalid if it failed to provide some it appropriates private property for public legal mode of assessment to raise money to purposes. From other sections of those stat- pay the bonds when they matured, with the utes it appears that when the municipal cor-interest accruing thereon. The statute, so poration appropriates or otherwise acquires far as the question of the power to issue lots or lands for the purpose of laying off, bonds and put them on the market is conopening, extending, straightening, or widen- cerned, may be carried into effect without ing a street, alley, or other public highway, reference to the 3d section. So that, if that or is possessed of property which it desires section were held void under Norwood v. to improve for street purposes, the council Baker, the remaining sections, being valid, may decline to assess the cost and expenses can stand and their provisions be executed. of such appropriation, or acquisition, and of There is some ground for saying that the the improvement, upon the general tax list in legislature would not have passed the act which case the same "shall be assessed upon without the 3d section; and that was the all the taxable real and personal property in view expressed by the learned judge who the corporation." § 2263. But by § 2264 it tried the case below. But we do not think is provided that in all cases where an im- that such is so manifestly the case as to provement of any kind is made of an exist- justify the courts in refusing to execute the ing street, alley, or other public highway, valid parts of the statute when that can be and the council declines to assess the costs done in harmony with the intention of the and expenses or any part thereof on the gen- legislature to have the improvement in queseral tax list, the amount not so assessed shall tion made by the township and its cost met be assessed by the council on the abutting by issuing bonds. We think the case comes and such adjacent and contiguous or other within Fayette County Treasurer v. People's & benefited lots and lands in the corporation, Drovers' Bank, 47 Ohio St. 503, 523, 10 L. R. either in proportion to the benefits which A. 196, 25 N. E. 697, in which the court said: may result from the improvements, or ac-"The question arises, however, whether, if* cording to the value of the property assessed, that portion of the section is declared wholor by the front foot of the property bound-ly or in part unconstitutional and void, it ing and abutting upon the improvement, as the council by ordinance, "setting forth specifically the lots and lands to be assessed, may determine before the improvement is made," the assessments to be payable in one or more instalments, and at such times as the council might prescribe. may not result in invalidating the entire section. As one section of a statute may be repugnant to the Constitution without rendering the whole act void, so, one provision of a section may be invalid by reason of its not conforming to the Constitution, while all the other provisions may be subject to no constitutional infirmity. One part may stand, while another will fall, unless the two are so connected, or dependent on each other in subject-matter, meaning, or purpose, bad. The point is not whether the parts are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance,—whether the provisions are so interdependent that one cannot operate without the other." Now let it be supposed that the 3d section of the special act in question prescribed a rule by which all inquiry is precluded in respect of special benefits accruing to the adjoining property owners, and that an assess-that the good cannot remain without the ment under that section would be invalid under the decision in Norwood v. Baker, as taking private property for public use without just compensation,-upon which question we express no opinion,—would it follow that the township would escape liability on the bonds? We think not. The 4th section of the act, authorizing and directing bonds to be issued for the purpose of raising the money necessary to meet the expenses of the improvement in question, may stand with sections 1 and 2, even if section 3 were held to be void as prescribing an illegal mode of assessment. The power to issue bonds to raise the money, and the mode in which the township should raise the necessary sums to pay the bonds when due, as well as the interest accruing thereon from time to time, are distinct and separable matters. The relief asked, and the only relief that could be granted in the present action, is a judgment for money. If the township should refuse to satisfy a judgment rendered against it, and if appropriate proceedings are then instituted to compel it to make an assessment to raise money sufficient to pay the bonds, the question will then arise whether the mode prescribed by the 3d section of the act of 1893 can be legally pursued; and, if not, whether the laws of the state do not author. ize the adoption of some other mode by which the defendant can be compelled to If the act under which the bonds were issued had not contained any provision what-meet the obligations it assumed under the auever for an assessment to raise money to thority of the legislature of the state. All meet them, the township could not have re- that we now decide is that, even if the 3d pudiated its obligation to pay the bonds; for section of the state statute in question be in the act would be found the command of stricken out as invalid, the petition makes the legislature to widen and extend Williams a case entitling the plaintiff to a judgment avenue, to immediately secure by proceedings against the township. Whether a judg in the probate court the land required for the ment if rendered could be collected, without further legislation, depends upon considera- | simply a usurpation of the powers heretotions that need not now be examined. fore always allowed to the proper adminisIV. But it is contended that, independent-trative boards selected by the people of the ly of any question of Federal law, the statute of Ohio under which the bonds were is sued was in violation of the Constitution of that state in that, when requiring the defendant township to widen and extend the avenue in question, the legislature exercised administrative, not legislative, powers. This contention is not supported by the decisions of the supreme court of Ohio made prior to the issuing of these bonds. Those decisions were to the contrary. In State ex rel. Hibbs v. Franklin County Comrs. 35 Ohio St. 458, 467, decided in 1880, the question was directly presented as to the validity under the Constitution of Ohio of a statute authorizing and directing a particular county to levy a special tax, not to exceed a given amount, for the purpose of building, grading, and gravelling or macadamizing a named public highway. On be half of the county it was insisted that the legislature could not constitutionally compel it or the people to make an improvement of merely a local character, for the reason that the local authorities were made by the Constitution the sole judges of the necessity of such an improvement. The supreme court of the state said: "The power of the legislature to pass a mandatory statute, requiring the commissioners to levy the tax and improve the road in question, is denied by the defendant. The only provision which the Constitution contains with respect to the county commissioners is the following: "The commissioners of counties, the trustees of townships, and similar boards, shall have power of local taxation as may be prescribed by law. Art. 10, § 7. Manifestly this is no limitation on the power of the general assembly; and the inquiry therefore is as to the extent of such power. That it is only legislative is conceded, but that is undeniably a very broad power, and includes, generally the right to direct, in invitum, the construction and repair of public highways, and the levy of taxes to defray the necessary expenses thereof. That the power is liable to great abuse is denied by no one, but the responsibility, as well as the power, rests with the legislature." But in State ex rel. Broerman v. Hamil ton County Comrs. 54 Ohio St. 333, 43 N. E. 587, and Hixson v. Burson, 54 Ohio St. 470, 43 N. E. 1000, decided in 1896, the principle announced in State ex rel. Hibbs v. Franklin County Comrs. was declared to be unsound. In the first case the supreme court of Ohio held to be invalid an act of the legislature which, without the petition of anyone interested, authorized certain local improve ments to be made with the consent of the county commissioners, but which was 80 framed as to require the commissioners to proceed in the way and to the extent mapped out by the legislature. The court said that the act was "an assumption of powers over the affairs of a county not possessed by the general assembly, it is administrative in character, and not legislative. . . . It is localities concerned, in the exercise of the right of local self-government." In the latter case the court expressly overruled the second syllabus in State ex rel. Hibbs v. Franklin County Comrs. (which under the statutes of Ohio is to be regarded as presenting the point adjudged), stating that "an act providing for the improvement of a designated county road is local in its nature, and not in conflict with art. 2, § 26, of the Constitution, which provides that all laws of a general nature shall have a uniform operation throughout the state.' What, under these circumstances, was the duty of the circuit court? That court, speaking by Judge Thompson, held that its duty was to enforce the provisions of the Constitution of Ohio as interpreted by the supreme court of that state at the time the bonds were issued, and not permit the contrary decisions, made after the bonds were issued, to have a retroactive effect. This was in accordance with the long-established doctrine of this court, to the effect that the question, arising in a suit in a Federal court, of the power of a municipal corporation to make negotiable securities, is to be determined by the law as judicially declared by the highest court of the state when the securities were issued, and that the rights and obligations of parties accruing under such a state of the law would not be affected by a different course of judicial decisions subsequently rendered, any more than by subsequent legislation. Our decisions to that effect are so numerous that any further discussion of the question is unnecessary, and we need only cite some of the adjudged cases. Rowan v. Runnels, 5 How. 134, 12 L. ed. 85; Ohio Life Ins. & T. Co. v. Debolt, 16 How. 416, 432, 14 L. ed. 997, 1003; Olcott v. Fond du Lac County Supers. 16 Wall. 678, 21 L. ed. 382; Douglass v. Pike County, 101 U. S. 677, 25 L. ed. 968; Taylor v. Ypsilanti, 105 U. S. 60, 71, 26 L. ed. 1008, 1012; Ralls County v. Douglass, 105 U. S. 728, 26 L. ed. 957; Green County v. Conness, 109 U. S. 104, 105, 27 L. ed. 872, 3 Sup. Ct. Rep. 69; Anderson v. Santa Anna, 116 U.. S. 356, 361, 362, 29 L. ed. 633, 635, 6 Sup. Ct. Rep. 413;*German Sav. Bank v. Franklin County, 128 U. S. 526, 539, 32 L. ed. 519, 525, 9 Sup. Ct. Rep. 159; Wade v. Travis County, 174 U. S. 499, 510, 43 L. ed. 1060, 1065, 19 Sup. Ct. Rep. 715. It should be here said that the doctrine of prior cases was not in any wise changed or impaired by the decision in Central Land Co. v. Laidley, 159 U. S. 103, 111, 40 L. ed. 91, 94, 16 Sup. Ct. Rep. 80, in which it was held that, under the statute giving this court authority to review the judgment of the highest court of the state, we were without jurisdiction if the action of that court was impeached simply on the ground that it had not determined the rights of the plaintiff in error in accordance with its decisions in force when those rights accrued, but had followed its decisions of a contrary character rendered after his rights had accrued. This court for the storage of the cars but merely for terminal facilities and storage room. [No. 11.] cember 17, 1900. ON WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Seventh Circuit to review a decision reversing that of the Circuit Court in favor of a railroad company in the action for the loss of property by fire. Reversed. See same case below, 30 C. C. A. 541, 56 U. S. App. 274, 87 Fed. Rep. 72. The facts are stated in the opinion. Messrs. Burton Hanson, George R. Peck, and George P. Cary for petitioner. Messrs. Bluford Wilson and Philip Barton Warren for respondents. held that a mere change of decision in the state court did not present a question of Federal right under that clause of the Constitution of the United States prohibiting a state from passing any law impairing the obligation of contracts, that the question of Argued October 24, 25, 1899. Decided Desuch impairment did not arise unless the judgment complained of gave effect to some provision of the state Constitution, or some enactment claimed by the defeated party to impair the obligation of the particular contract in question. As, however, the circuit courts of the United States are courts of "an independent jurisdiction in the administration of state laws co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws" (Burgess v. Seligman, 107 U. S. 20, 33, 34, 27 L. ed. 359, 365, 2 Sup. Ct. Rep. 10; Folsom v. Township Ninety-six, 159 U. S. 611, 624, 625, 40 L. ed. 278, 283, 16 Sup. Ct. Rep. 174), they may, in suits within their jurisdiction, properly hold, as in numerous cases this court has held, that the rights of parties in this record is controlled by the principles The decision of the controversy presented arising under contracts not involving questions of a Federal nature are to be deter- announced in the opinion just delivered in mined in accordance with the settled princi- Huntting Elevator Co. v. Bosworth, number ples of local law as maintained by the high- 12 of this term (next case). The claim of the est court of the state at the time such rights railroad company was for the value of ceraccrued. The statutory provision that the tain cars, admittedly owned by it, which had laws of the several states, except where been received by the Peoria Company at vathe Constitution, treaties, or statutes of rious times on and prior to October 28, 1894, the United States otherwise require or profrom a connecting carrier, upon shipments vide, shall be regarded as rules of deci- of barley from various points to commission sion in trials at common law, in courts of merchants in St. Louis, the cars, except in the United States, in cases where they apply one or two instances, being routed on the (U. S. Rev. Stat. § 721), has not been con-way bills to East St. Louis. strued as absolutely requiring conformity, in such cases, to decisions of the state courts rendered after the rights of parties have accrued under the previous decisions of those courts of a contrary character. It results that the circuit court did not err in overruling the point raised under the demurrer at the hearing below, to the effect that the state enactment was invalid under the Constitution of the state. The judgment is reversed, and the cause remanded with directions for further proceedings consistent with law and this opin ion. Reversed. (179 U. S. 442) CHICAGO, MILWAUKEE, & ST. PAUL v. C. H. BOSWORTH, Receiver of the Chicago, Peoria, & St. Louis Railway Company, et al. Carriers-liability for loss of cars of a connecting carrier by fire-cars in yards of terminal company. A railroad company is liable to a connecting carrier for the loss of the latter's cars by fire while in the possession and control of the former company, but standing in the yard of a terminal company, awaiting orders from consignees for further movement, where the contract with the terminal company is not Mr. Justice White delivered the opinion of the court: The cars 80 taken by the Peoria Company were deposited on the tracks at East St. Louis set apart for the use of the Peoria Company under the circumstances disclosed in the opinion in the Huntting Elevator Company Case, and while awaiting orders from the consignees for further movement, were destroyed in the fire of October 28, 1894. The circuit court entered a decree in favor of the railroad company, but this decree was reversed by the circuit court of appeals. For the reasons stated in the opinion in the Huntting Elevator Company case, the decree of the Circuit Court of Appeals must be reversed, and the decree of the Circuit Court of the United States for the Southern District of Illinois affirmed. (179 U. S. 415) HUNTTING ELEVATOR COMPANY, Peti tioner, v. C. H. BOSWORTH, Receiver of the Chicago, Peoria, & St. Louis Railway Company, et al. Carriers-loss by fire cars in yard of terminal association. A railroad company is Hable, at least as a warehouseman, for goods transported by it and remaining in cars still subject to its orders in the yard of a terminal association under a contract with the terminal association for "terminal facilities" for "the handling of that the terminal association will store cars, [No. 12.] Argued October 24, 25, 1899. cember 17, 1900. 0 Decided The interventions which related to barley shipments alleged delivery of the cars of barley to an initial carrier, consigned to a named commission merchant in St. Louis, via East St. Louis; the delivery of the barley so shipped to the receiver of the Peoria Company to be "transported to its destination;" the carriage by that company as far as East St. Louis, and the damage by fire of the barley in the cars "while the same were still in transit and on the way to destination, and in the possession and under the control" of the receiver of the Peoria Company. In the answers filed by the receiver there was no denial of the allegations contained in the intervening petitions as to the shipment of the barley in question and the destination thereof. The answers, in effect, merely averred that after the receipt of the cars and contents by the receiver, they were deDelivered by him, in the due course of business, to the Terminal Railroad Association of St. Louis, and were damaged or destroyed while in the possession of that association and by its negligence. N WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Seventh Circuit to review a decision reversing decrees of a Circuit Court in an action against a railroad company for loss of property by fire. Reversed. See same case below, 30 C. C. A. 541. 56 U. S. App. 274, 87 Fed. Rep. 72. Statement by Mr. Justice White: This case involves deciding whether the defendants in error are liable for the damage occasioned to certain property, resulting from a fire which occurred on October 28, 1894, in a railroad yard at East St. Louis, Illinois. The Chicago, Peoria, & St. Louis Railway Company, at the date of the fire in question, was being operated by a receiver appointed on September 22, 1893, in foreclosure proceedings instituted in the circuit court of the United States for the southern district of Illinois. On the assumption that the receiver was responsible for the damage occasioned by the fire above referred to, various persons and corporations who had suffered loss filed their interventions, asserting a liability on the part of the receiver for such damage. The interveners were nine in number, and all but two sought recovery for the loss occasioned by the damage or destruction of barley. The claims other than for barley were asserted by the Chicago, Milwaukee, & St. Paul Railway Company, and the Carr, Ryder, & Engler Company; the former corporation asking to be allowed for the value of its cars, in which were contained the destroyed or damaged barley. while the latter corporation demanded the value of certain doors, sashes, etc., consigned to Birmingham, Alabama. A list of all the interveners is given in the margin.t tNames of the interveners: The Carr, Ryder, & Engler Company; The Chicago, Milwaukee, & St. Paul Railway Company; The S. H. Hyde Elevator Company; The W. W. Cargill Company; Jacob Rau; Gilchrist & Company, a partnership: The Huntting Elevator Company; Mc. Michael & Son, a partnership; and Henry Rippe. It was alleged that the delivery to the Terminal Association had been made by virtue of a contract between the receiver and the Terminal Association, of date June 1, 1891, which contract was annexed as a part of the answer; and that by the custom in course of business existing between the receiver and the Terminal Association for four years prior to the deliveries in question, it resulted that the Terminal Associa tion and not the receiver was bound for the damage which the fire had brought about. The receiver, moreover, filed a cross petition praying that the Terminal Association be made a party defendant to the intervention proceedings. so that its liability to the interveners might be decreed. Upon this application the court issued a rule upon the association to show cause why it should not be made a party defendant as prayed. To this action, the Terminal Association appeared, solely for the purpose of jecting to the jurisdiction, and moved to discharge the rule for various selves to the want of power to compel the appearance of the Terminal Association as a defendant to the interventions. The crosspetition, rule, and the motion just referred to were not thereafter pressed upon the attention of the court, and the Terminal Association never appeared as a party to the intervention proceedings. sons, all of which addressed ob rea them When the issues on the interventions were thus made up, the court referred the claims of all the interveners to a master to take testimony and report. Under this reference the testimony as to all the interventions was taken together. During the course of the taking of the testimony before the master, it having developed that the propinquity of a warehouse filled with hay was the proximate cause of the fire, the interveners added to their petitions the following allegations, as "a further, separate, and distinct ground of recovery therein," viz.: "That upon the arrival of the cars men tioned and described in said petition at said | ulation respecting same was made, to whiche East St. Louis, and while the same were still we shall now call attention. In presenting in the possession of said receiver, said re- a motion for a continuance of the hearing, ceiver negligently caused and permitted on the ground that he had been unable to them, together with their contents, to be procure the attendance of Mr. Teichman and placed upon certain tracks in close prox-other commission merchants of St. Louis, inity to a large wooden warehouse filled counsel for the receiver said: with baled and loose hay, and through which said warehouse locomotive engines were fre quently passing and repassing during all hours, night and day; that said wooden warehouse was open at the sides and ends, and had railroad tracks passing through it, over which locomotive engines frequently passed, and said hay was generally exposed to fire escaping from said locomotives; that said warehouse and hay were easily ignitible, and on account of the inflammable condition of said hay, the large quantity thereof, and the dimensions of said wooden warehouse, the same, if set on fire, would burn with great rapidity and produce a great conflagration, all of which the receiver well knew, yet notwithstanding all this he negligently and carelessly caused and permitted said cars and their contents to be placed upon said side track, near said warehouse, and to remain thereon for several days, when said hay and warehouse were in some manner set fire to, and the same burned so rapidly, and produced such a large conflagration, that said cars and their contents were damaged and destroyed, as stated in said several petitions, and the petitioners damaged in the manner and to the extent and amount, as therein stated." Prior to the filing of the amended petitions of the interveners as above stated, the testimony before the master had shown that there was keen competition for the carriage of barley and other commodities from points in Iowa, Wisconsin, and Minnesota, between roads entering St. Louis from the west side of the river and those which carried freight from the territory named into St. Louis via bridge or ferry connections from East St. Louis. Indeed, it was shown that in order to get a proportion of the business the roads on the East St. Louis side of the river were obliged to furnish dealers with facilities equal to those which could be obtained from roads entering St. Louis on the west side. For this purpose a joint through rate to St. Louis for barley was made, and on the arrival of the barley at East St. Louis, unless the consignees had previously directed to the contrary, instead of being immediately transferred across the Mississippi river for delivery to the consignees in St. Louis, it Iwas held in the cars at East St. Louis to enable the consignees to dispose of the same in carload lots; and when so disposed of the cars were either delivered in St. Louis or transferred for shipment elsewhere, as might be ordered by the consignees. To such an extent did this custom prevail that it was testified that East St. Louis had become the market place for barley consigned from the territory named to St. Louis. On the hearing before the master, after the testimony on the subject just stated had been introduced, an offer of proof and stip "We expect to prove by these witnesses that the St. Louis Terminal Railroad Association personally solicited this particular barley business, originating on the Chicago, Milwaukee, & St. Paul road, on which this controversy is pending; that these solicitations by the Terminal Railroad Association were made to all the barley dealers in St. Louis, to whom the particular consignments of barley are made, which are now in litigation; that the Terminal Railroad Association, as an inducement to barley dealers and shippers, agreed to hold the cars on their tracks at East St. Louis free of car service, and offered other facilities in and about their yards at East St. Louis, by which the St. Louis Terminal Railroad Association succeeded in securing the business of all of the shippers; by that term, I mean the consignees and shippers except the business of the John Wall Commission Company, whose business was being handled by the Wiggins Ferry Company, a competing line with the St. Louis Terminal Railroad Association, and that at a later day they also secured the business of this last-named firm. And that the solicitation was made in the interest of the Terminal Railroad Association for the express purpose of having the business sent down the east side of the Mississippi river, so as to give them the benefit of the transfer across the river from East St. Louis to St. Louis in competition with lines west of the Mississippi river." In the record is next set out the following statements of counsel for the interveners: Counsel for interveners: ".. Now in reference to the testimony of people at St. Louis, in respect to the arrangement made by the Terminal Railroad Association, by which it would hold these cars of barley and so forth, rather than to postpone this hearing at this time I will consent that the witnesses, if here, would testify as Mr. Wilson has stated. So I do not think a continuance should be granted on that application. "To expedite matters, it is stipulated that the witnesses Otto Teichman, Henry Grieve of the John Wall Commission Company, L. Leinke, and Charles Orthwein, at St. Louis, if present, would testify substantially as has been stated by Mr. Wilson." Leave having been granted the receiver to answer the amended petitions, he met the new averments respecting the warehouse contained in the amended petitions, by denying that, while in the possession of the receiver, the latter negligently caused or permitted the property in question to be placed in proximity to the warehouse referred to in the amended petitions, and further averred that after the delivery of the cars to the Terminal Association the receiver no longer controlled and directed the placing of the cars in the |