Syllabus.

assistant engineer only, there should be deducted, from the sum due him for such pay, the sum which has been mistakenly and improperly paid to him. McElrath v. United States, 102 U. S. 426; United States v. Burchard, 125 U. S. 176. Judgment reversed, and case remanded for further proceedings in conformity with this opinion.

MERCHANTS' COTTON PRESS AND
PRESS AND

STORAGE

COMPANY v. INSURANCE COMPANY OF NORTH
AMERICA.

ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE.

No. 807. Submitted January 8, 1894. - Decided January 22, 1894.1

A railroad company agreed with a cotton compress company that the latter should receive and compress all the cotton which the railroad might have to transport in compressed condition, and that it should insure the same for the benefit of the railroad company, or of the owners of the cotton, for a certain compensation which the railroad company agreed to pay weekly. It was further agreed that the compress company, on receiving the cotton, was to give receipts therefor, and that the railroad company, on receiving such a receipt, was to issue a bill of lading in exchange for it. Cotton of the value of $700,000, thus deposited with the compress company for compress and transportation, was destroyed by fire. That company had taken out policies of insurance upon it, but to a less amount, in all of which the compress company was named as the assured, but in the body of each policy it was stated that it was issued for the benefit of the railroad company or of the owners. The various owners of the cotton further insured their respective interests in other insurance com

1 The opinion in this case is also entitled in No. 808, National Fire Insurance Company v. Insurance Company of North America; No. 809, Mutual Fire Insurance Company v. Insurance Company of North America; No. 810, Continental Insurance Company v. Insurance Company of North America; No. 811, Fire Association of New York v. Insurance Company of North America; No. 812, Liverpool and London and Globe Insurance Company v. Insurance Company of North America; No. 813, Royal Insurance Company v. Insurance Company of North America. All these cases were brought from the Supreme Court of the State of Tennessee by writs of error, and all were submitted at the same time with No. 807, and on the same briefs.

Syllabus.

After

panies, called in the litigation the marine insurance companies. the fire the amounts of the several losses were paid to the assured by the several marine companies. In an action in the courts of Tennessee to settle the rights of the parties, the Supreme Court of that State held, (89 Tennessee, 1; 90 Tennessee, 306,) that the companies so paying were entitled to be subrogated to the rights of the owners or consignees against the railroad company under its bills of lading, and that the railroad company was entitled to have the insurance which had been taken out by the compress company collected for its benefit. The railroad company not being party to those suits, the marine insurance companies filed their bill in equity in a state court in Tennessee against the compress company, the several persons who had insured the destroyed cotton for it, and the railroad company, to reach and subject the fire insurance taken out by the compress company for the benefit of the railroad company, and for other relief set forth in the bill. The plaintiffs in the suit were, a corporation under the laws of Pennsylvania, a corporation under the laws of New York, and a corporation under the laws of Rhode Island, on behalf of themselves and of all other companies standing in like position. On the other side were two corporations under the laws of Pennsylvania, two corporations under the laws of Great Britain, a corporation under the laws of New York, certain residents of Rhode Island, certain citizens of New York, certain citizens of Tennessee, two aliens, and forty-four insurance companies of West Virginia, Pennsylvania, New York, Illinois, Louisiana, Wisconsin, Alabama, Connecticut, Ohio, Texas, Indiana, and Great Britain. The defendants petitioned for the removal of the cause to the Circuit Court of the United States, on the ground that the controversy was wholly between citizens of different States, or between citizens of one or more of the several States and foreign citizens and subjects, and that the same could be fully determined as between them. The petition was denied and the cause proceeded to judgment in the state court. In the course of the trial it was attempted to be proved that special rates, rebates or drawbacks had been given in violation of the interstate commerce laws and regulations. A decree being entered for the plaintiffs, giving relief substantially as prayed for in the bill, the Supreme Court of the State, on appeal, affirmed the judgment below, and held that the law making agreements for rebates, etc., void, did not invalidate the contracts of affreightment. A writ of error being sued out to this court, it is now Held, (1) That whether the cause be looked at as a whole, or whether it be

considered under any adjustment or arrangement of the parties on opposite sides of the matter in dispute, there was no right of removal, on the part of the several plaintiffs in error, or either of them:

(2) That there is nothing in the interstate commerce law which vitiates bills of lading, or which, by reason of an allowance of rebates, if actually made, would invalidate a contract of affreightment, or exempt a railroad company from liability on its bills of lading. VOL. CLI-24

Argument for Plaintiffs in Error.

THE case is stated at length in the opinion of the court. For the purpose of understanding the brief of counsel, the condensed statement in the head-note is sufficient.

also a motion to dismiss or affirm.

There was

Mr. T. B. Turley, Mr. L. E. Wright, Mr. C. W. Metcalf and Mr. S. P. Walker for plaintiffs in error.

I. The motion to affirm should not be entertained for the reason that, though it is nominally coupled with a motion. to dismiss, such motion to dismiss is colorable only, and manifestly made for the purpose of bringing on the motion to affirm. Whitney v. Cook, 99 U. S. 607.

The record shows that the question upon which the jurisdiction depends is not frivolous, and that the appeal was not taken for delay.

II. The record presented a case for removal to the Federal court, under the act of Congress in that regard. It showed a separable controversy between citizens of different States, which could be determined without the presence of any of the other parties to the record. Knapp v. Railroad Co., 20 Wall. 117; Barney v. Latham, 103 U. S. 205; Hyde v. Ruble, 104 U. S. 407; Harter v. Kernochan, 103 U. S. 562; Kanouse v. Martin, 15 How. 198; The Removal Cases, 100 U. S. 457; Ayres v. Chicago, 101 U. S. 184; Shainwald v. Lewis, 108 U. S. 158; Ayres v. Wiswall, 112 U. S. 187; Ayres v. Watson, 113 U. S. 594; Crump v. Thurber, 115 U. S. 56; Ins. Co. of North America v. Delaware Mut. Ins. Co., 50 Fed. Rep. 243.

III. The record establishing that the contracts of affreightment between the C. V. & C. Line and Jones Bros. & Co. were made in violation of the interstate commerce law, such violation making the whole contract illegal under the terms of the statute, no recovery should have been allowed on the bills of lading issued by the C. V. & C. Line to Jones Bros. & Co.; and the case of the complainant marine companies depending upon the establishment of the liability of the carriers must therefore fail so far as concerns those bills

Opinion of the Court.

of lading. Petrel Guano Co. v. Jarnette, 25 Fed. Rep. 675; Dent v. Ferguson, 132 U. S. 50; Hannay v. Eve, 3 Cranch, 242; Gibbs v. Baltimore Gas Co., 130 U. S. 397; Miller v. Ammon, 145 U. S. 421; St. Louis &c. Railroad v. Terre Haute &c. Railroad, 145 U. S. 393.

Mr. John M. Butler, Mr. Holmes Cummins and Mr. William H. Carroll for defendants in error.

MR. JUSTICE JACKSON delivered the opinion of the court.

The writ of error in each of these seven causes (which were submitted together) presents the same Federal questions, which are, first, whether the Supreme Court of Tennessee erred in sustaining the action of the chancery court of Shelby County of that State, denying the petition of several of the plaintiffs in error to remove the cause to the Circuit Court of the United States for the Western District of Tennessee; and, secondly, in holding that certain alleged special rates, rebates, or drawbacks, allowed by Anthony J. Thomas and Charles E. Tracy, receivers of the Cairo, Vincennes and Chicago Railroad Company, through L. L. Fellows, their agent at Memphis, to Jones Brothers & Company, of that place, on cotton shipped over that line to various points in the east, were not in violation of the interstate commerce acts regulating commerce between States of the Union, and did not render the bills of lading issued by the railroad for cotton transported or to be transported so illegal as to invalidate the same and prevent any recovery thereon against the carrier.

The questions thus presented grew out of the following state of facts: On November 17, 1887, about 14,000 bales of cotton. in the West Navy Yard Compress of the Merchants' Cotton Press and Storage Company (hereafter called the compress company) were destroyed by fire. The value of the cotton was about the sum of $700,000. Of the total number of bales thus destroyed, about 9608 bales were covered by bills of lading issued by various transportation companies to the owners or consignees of the cotton. The bills of lading issued by the Cairo, Vincennes and Chicago Railroad Company (hereafter

Opinion of the Court.

called the railroad company) covered 5087 bales of the cotton destroyed, valued at $245,733.46.

In May, 1887, a contract had been entered into between the railroad company and its receivers, Anthony J. Thomas and Charles E. Tracy, on the one side, and the compress company on the other, by the terms of which the railroad company and its receivers agreed to give to the compress company all cotton to compress that the railroad company might have to transport out of Memphis in a compressed condition. The compress company, on its part, agreed to properly compress all such cotton, and also to insure the same for the benefit of the railroad company, or owners, for a certain compensation. to be paid weekly, which was intended to cover both the service for compressing the cotton and the insurance to be taken out thereon, in good and solvent companies by the compress company. This insurance was to cover any loss while the cotton was under the control of the compress company and until delivered to the railroad company. The contract further provided that the railroad company and its receivers constituted the compress company its agent to receive all cotton intended for transportation over the railroad company's line, and to sign receipts therefor, on the production of which, bills of lading would be issued by the railroad company. This contract was to continue in force until August 31, 1896.

Under and in pursuance of this contract cotton was delivered to the compress company, by the owners or their agents, for transportation over the line of the railroad company from Memphis to points east to the extent of 5087 bales, for which dray tickets or receipts were given by the compress company, and on the production of which the agent of the railroad company issued bills of lading to the several and respective owners or consignees of such cotton.

The railroad company had an all-rail line from Memphis, and also a partly water and partly rail line, the water line extending from Memphis to Cairo, Illinois, at which point the railroad company's rail line commenced and extended by means of its connection eastward.