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The ambiguity arises from the words which we have italicized. They express a purpose different from the protection of the timber and undergrowth, but they cannot, we repeat, be extended to grant a power to take from the industries designated, whether by the general clause or the specific enumeration, the permission given by Congress.
MR. JUSTICE BROWN, dissenting.
I am unable to concur in the construction put by the court upon the statute of June 3, 1878. Bearing in mind that the policy of the Government has been to preserve its rapidly diminishing areas of forest lands for the benefit of the whole people, any statute which permits timber to be cut by individuals should be narrowly construed.
In my view, the license given to citizens of the United States and residents of the States and Territories named, "to fell and remove, for building, agricultural, mining or other domestic purposes," timber and trees growing upon the public lands should be confined to timber intended to be used for structural or household purposes, and not be extended so far as to authorize the consumption of timber in manufacturing or other business operations. The word “building” explains itself. “Agriculture” would include timber used for houses, barns, tools, furniture and fences. The word “mining” was doubtless intended to include not only the buildings necessary for mining operations, but such timber as is used in shoring up the walls of the mine, and perhaps also in operating the hoisting engines, but not that used for consumption in the treatment of ores.
It is true the words “other domestic purposes" are susceptible of two constructions. The word “domestic," when used in connection with the words commerce, manufactures or industries, is significant of locality, and is contradistinguished from foreign, but when used in connection with the
word "purposes” it is most nearly analogous to "household." The difficulty with the former construction is that it practically liberates the word from all restrictions. If it be construed as referring to locality, what is the locality to which it should be confined? Is it the immediate neighborhood, township, county or State, or may it be given the same construction as given to it in connection with the words commerce or manufacturing, and be extended to the whole United States? If either of these constructions were possible, it would result in the destruction of all timber standing upon public mineral lands, as well as in an unfair discrimination against those less favorably situated, who are compelled to pay for the fuel consumed in the treatment of ores. I do not think the word “other” can be used as an enlargement of the word “domestic," and that it should be confined, as are the preceding words, to timber used for other analogous structural purposes and for household consumption-in short, to other purposes domestic in their character.
For these reasons I am constrained to dissent from the opinion of the court.
I am authorized to state that MR. JUSTICE HARLAN and MR. JUSTICE PECKHAM concur in this dissent.
UNION STOCK YARDS COMPANY OF OMAHA v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY.
CERTIFICATE FROM THE UNITED STATES CIRCUIT COURT OF
APPEALS FOR THE EIGHTH CIRCUIT.
No. 100. Argued December 14, 15, 1904.—Decided Jauuary 9, 1905.
A railroad company delivered a car with imperfect brakes to a terminal
company; both companies failed to discover the defect which could have been done by proper inspection; an employé of the terminal company, who
was injured as a direct result of the defective brake, sued the terminal company alone and recovered. In an action brought by the terminal company against the railroad company for the amount paid under the
judgment: Held that: As both companies were wrongdoers, and were guilty of a like neglect of
duty in failing to properly inspect the car before putting it in use, the fact that such duty was first required of the railroad company did not bring the case within the exceptional rule which permits one wrongdoer, who has been mulcted in damages, to recover indemnity or contribution from another, on the ground that the latter was primarily responsible.
This case comes here on the certificate of the United States Circuit Court of Appeals for the Eighth Circuit. The facts embodied therein are: The Circuit Court of the United States, sitting at Omaha, Neb., sustained a demurrer to the petition of the plaintiff in error against the defendant in error. The facts stated in the petition, in substance, are as follows:
“The plaintiff, The Stock Yards Company, is a corporation which owns stock yards at South Omaha, Nebraska, railroad tracks appurtenant thereto, and motive power to operate cars for the purpose of switching them to their ultimate destinations in its yards from a transfer track which connects its tracks with the railways of the defendant, The Burlington Company. The Burlington Company is a railroad corporation engaged in the business of a common carrier of freight and passengers. The defendant places the cars destined for points in the plaintiff's yards on the transfer track adjacent to the premises of the plaintiff, and the latter hauls them to their points of destination in its yards for a fixed compensation, which is paid to it by the defendant. The plaintiff receives no part of the charge to the shipper for the transportation of the cars, but the defendant contracts with the shipper to deliver the cars to their places of ultimate destination in the plaintiff's yards and receives from the shipper the compensation therefor. The defendant delivered to the plaintiff upon the transfer track a refrigerator car of the Hammond Packing Company, used by the defendant to transport the meats of that company, to be delivered to that company by the plaintiff in its stock yards. This car was in bad order, in
Argument for Plaintiff in Error.
that the nut above the wheel upon the brake staff was not fastened to the staff, although it covered the top of the staff and rested on the wheel as though it was fastened thereto, and this defect was discoverable upon reasonable inspection. The plaintiff undertook to deliver the car to the Hammond Company and sent Edward Goodwin, one of its servants, upon it for that purpose, who, by reason of this defect, was thrown from the car and injured while he was in the discharge of his duty. He sued the plaintiff and recovered a judgment in one of the District Courts of Nebraska for the damages which he sustained by his fall, on the ground that it was caused by the negligence of the Stock Yards Company in the discharge of its duty of inspection to its employé. This judgment was subsequently affirmed by the Supreme Court of Nebraska, Union Stock Yards Co. v. Goodwin, 57 Nebraska, 138, and was paid by the plaintiff.”
Upon this certificate the Circuit Court of Appeals propounds the following question:
“Is a railroad company which delivers a car in bad order to a Terminal Company, that is under contract to deliver it to its ultimate destination on its premises for a fixed compensation to be paid to it by the railroad company, liable to the Terminal Company for the damages which the latter has been compelled to pay to one of its employés on account of injuries he sustained, while in the customary discharge of his duty of operating the car, by reason of the defect in it, in a case in which the defect is discoverable upon reasonable inspection?”
Mr. Frank T. Ransom for plaintiff in error:
Both plaintiff and defendant were liable to plaintiff's employé for the injuries he received. Pennsylvania R. R. Co. v. Snyder, 55 Ohio St. 342; Moon v. Nor. Pac. R.R. Co., 46 Minnesota, 106; Teal v. Am. Min. Co., 87 N. W. Rep. 837; Hoye v. Gt. Northern Ry. Co., 120 Fed. Rep. 712; Hearen v. Pender, 11 Q. B. Div. 506; Elliott v. Hall, 15 Q. B. Div. 315; Railroad Co. v. Booth, 98 Georgia, 20; Horne v. Meakin, 115 Massachusetts,
Argument for Plaintiff in Error.
196 U. S.
326; Thrussell v. Hannyside, 20 Q. B. Div. 315; Sawyer v. Railroad Co., 35 N. W. Rep. 671; Glynn v. Railroad Co., 175 Massachusetts, 510.
The defendant was guilty of the original wrongful act from which the damages arose, and but for its breach of a duty it owed plaintiff the injury would not have resulted; the rule, therefore, that there can be no redress (indemnity or contribution) between joint tort-feasors, is not applicable to the facts stated, but the exception to that rule, which is, that where one of several persons answerable for a negligent act or condition which he has not joined in or created has been compelled to respond in damages for such act or condition, he may have redress against the others, is applicable to the facts stated in the question. Gray v. Boston Gas Light Co., 114 Massachusetts, 149; Lowell v. B. & L. Ry. Co., 23 Pick. 24; Cooley on Torts, 1st ed., 144; Bishop on Non-contract Law, $$ 56, 535; footnote to Centerville v. Cook, 16 Am. St. Rep. 254, citing Akerman v. Miller, 2 Ohio St. 203; Adamson v. Jarvis, 4 Bin. 66; Betts v. Gibbons, 2 Ad. & E. 57; Farwell v. Becker, 129 Illinois, 261; Minneapolis Mill Co. v. Wheeler, 31 Minnesota, 121.
While between willful wrongdoers there can be no contribution where the tort is one by construction, the case is not covered by the rule. Story on Partnership, $ 220; Vandiver v. Pollak, 19 L. R. A. 628.
The rule that wrongdoers cannot have contribution or redress against each other is confined to cases where the plaintiff is presumed to have known he was doing a wrongful act. Block v. Estes, 92 Missouri, 318; Scofield v. Gaskill, 60 Georgia, 277; Owen v. McGehee, 61 Alabama, 440; Armstrong Co. v. Clarion Co., 66 Pa. St. 218; Jacobs v. Pollard, 10 Cush. 287; Cooley on Torts, 148; Pollock on Torts, 171; Horback v. Elder, 18 Pa. St. 33; Farwell v. Becker, 129 Illinois, 261.
Nor does the rule apply to a person made a wrongdoer by inference of law. Merryweather v. Nixon, 2 Smith's Leading Cases, 456; Pearson v. Skelton, 1 M. & W. 504; Adamson v. Jarvis, 4 Bin. 66; Note in 16 Am. St. Rep. 257, Johnson v.