Mr. Andrew B. Duvall for defendant | may be foreclosed by sale in pursuance of in error. the terms in which the power is conferred, or by suit in chancery." Mr. Justice Brown delivered the opin- *The legal effect of the two instruments* ion of the court: has been recognized as practically the same The sole question presented by the rec-in several cases in this and other courts. ord in this case is whether the provision Platt v. Union P. R. Co. 99 U. S. 48-57, in the policy for the unconditional owner-25 L. ed. 424–427; Palmer v. Gurnsey, 7 ship of the property by the plaintiff, and Wend. 248; Eaton v. Whiting, 3 Pick. for the nonexistence of any chattel mort- 484; Wheeler & W. Mfg. Co. v. Howard, 28 gage thereon, was broken by certain trust Fed. 741;Bartlett v. Teah, 1 McCrary, 176, deeds to secure the payment of money in 1 Fed. 768; Southern P. R. Co. v. Doyle, each case. 8 Sawy. 60, 11 Fed. 253; McLane v. Paschal, 47 Tex. 365. There may be cases under particular statutes recognizing a difference between them in reference to the application of the recording laws, as appears to be the case in Maryland (Charles v. Clagett, 3 Md. 82), but in their essential features and in their methods of enforcement they are practically identical. Both are transfers conditioned upon the payment of a sum of money; both are enforceable in the same manner, and the difference between them is one of name rather than substance. The provision in the policy is one for the protection of the insurer, who is entitled, if he insists upon it in his questions, to be apprised of any fact which qualifies or limits the interest of the insured in the property, and would naturally tend to diL.minish the precautions he might take against its destruction by fire. Plaintiff relies upon the familiar principle of law that the conditions of a policy of insurance, prepared, as they are, by the company, and virtually thrust upon the insured, frequently without his knowledge, must be construed strictly, and, while the legal effect of a chattel mortgage and of a deed of trust to secure the payment of money may be practically the same, they are in law different instruments; and that a condition against one is not broken by the existence of the other. We recognize the rule laid down by this court in Thompson v. Phenix Ins. Co. 136 U. S. 287, 34 L. ed. 408, 10 Sup. Ct. Rep. 1019, that in case of attempted forfeiture, if the policy be fairly susceptible of two constructions, the one will be adopted which is more favorable to the insured. This rule was reiterated in McMaster v. New York Ins. Co. 183 U. S. 25, 46 L. ed. 64, 22 Sup. Ct. Rep. 10, but we cannot recognize it as applicable to this case. A deed of trust and chattel mortgage with power of sale are practically one and the same instrument as understood in this District. In the language of Mr. Justice Morris, in speaking of mortgages of real estate in Middleton v. Parke, 3 App. D. C. 149: In passing upon the identity of the two instruments in this case we may properly refer to the further provision of the policy that the interest of the insured must be an unconditional and sole ownership. While the breach of this condition is not specifically urged in the briefs, we may treat it as explanatory of the other condition against the existence of a chattel "The deed of trust is the only form of mortgage. The company evidently inmortgage that has been in general use intended by this provision to protect itself the District of Columbia for many years. against conditional transfers of every kind. The common-law mortgage is practically The contract of the company is a personal unknown with us; and everyone under- one with the insured, and it is not bound stands that, when a mortgage of real es- to accept any other person to whom the tate here is spoken of, the deed of trust is latter may transfer the property. what is intended. The deed of trust is here used as the equivalent of a mortgage; and so the term is universally used by the community. Indeed, while a mortgage is not necessarily, perhaps, a deed of trust, a deed of trust to secure the loan of money is necessarily a mortgage." It was said by this court in Shillaber v. Robinson, 97 U. S. 68-78, 24 L. ed. 967 The conditions of the policy in this case were broken by the trust deeds, and the judgment of the court below is, therefore, affirmed. (196 U. S. 64) T. B. LEE, Jr., Plff. in Err, v. H. S. ROBINSON. 970, that, "if there is a power of sale, Revenue bond scrip- validity of, under whether in the creditor or in some third person to whom the conveyance is made state Constitution. for that purpose, it is still in effect a mort-The issue of revenue bond scrip under 8. C. gage, though in form a deed of trust; and act of March 2, 1872, to relieve the state of South Carolina of all liability on its guar- | rights of the defendant under the Constianty indorsed upon railway bonds by author- tution of the United States were impaired ity of the act of September 15, 1868, when, by the laws hereafter mentioned which exas this statute shows on its face, there was cluded the reception of the scrip for the no outstanding liability represented by the guaranty, comes within the prohibition of art. 9. § 10, of the state Constitution of April 16, 1868, against issuing scrip except for the redemption of an "evidence of indebtedness previously issued," where neither statute purported to be an adjustment of a claim against the state, permitted by art. 14, § 4, of that Constitution. [No. 81.] tax. Counsel other than those representing the parties was permitted to file a brief as amicus curia, and urged that this was a collusive suit. But the circuit court and held that it was not (122 Fed. 1010), we accept the finding for the purposes of disposing of the case. The revenue bond scrip was issued under an act of March 2, 1872, entitled "An Act Argued December 6, 7, 1904. Decided De- to Relieve the State of South Carolina of cember 19, 1904. IN United States for the District of South 'N ERROR to the Circuit Court of the Carolina to review a judgment in favor of plaintiff in an action to recover land bought by the purchaser at a tax sale, in which the defense was set up of a tender which included revenue bond scrip of that state. Affirmed. All Liability for Its Guaranty of the Bonds of the Blue Ridge Railroad Company, by for fe, this act purported to Providing for the Securing and Destruc authorize the issue to the amount of $1,800,000, "which revenue bond scrip shall be signed by the state treasurer, and shall express that the sum mentioned therein is due by the state of South Carolina to the bearer thereof, and that the same will be received in payment of taxes and all other dues to the state, except special tax levied to pay interest on the public debt." the supreme court of the state held that the scrip constituted bills of credit within the prohibition of the Constitution of the amicus *United States, article 1, § 10. State ex rel. Shiver v. Comptroller General, 4 S. C. N. S. 185. The pledge of the state's See same case below, 122 Fed. 1012. error. Mr. D. W. Robinson for defendant in error. Mr. William Elliott, Jr., as curiæ. But Mr. Justice Holmes delivered the opin- credit and the provisions for the redempion of the court: tion of the scrip were repealed by the legislature, and, under the fiscal laws of the state, the scrip had not been receivable for taxes since 1873. Constitution of South Carolina, ratified on April 16, 1868, in article 9, § 10, provided as follows: "No scrip, certificate, or other evidence of state indebtedness shall be issued except for the redemption of stock, bonds, or other evidence of indebtedness previously issued, or for such debts as are expressly authorized in this Constitution." There was also a further provision that "any debt contracted by the state shall be by loan on state bonds, of amounts not less than $50 each, on interest payable within twenty years after the final passage of the law authorizing such debt." This is an action to recover land, brought by Robinson, the defendant in error, a citizen and resident of North Carolina, against Lee, a citizen and resident of We are of opinion that the issue of the South Carolina, on the ground that Robin-scrip was forbidden by the Constitution of son had purchased the land at a tax sale. the state. When the scrip was issued, the The value of the land is alleged and found to be more than $2,000. The defense is that a tender was made of the amount of the taxes before the sale. This tender included, as a part of it, revenue bond scrip of the state of South Carolina for $5, purporting on its face to be receivable in payment of taxes, and the question is whether the tender was good; or, more precisely, whether the bond scrip was receivable for taxes under the Constitution of the United States and the Constitution and laws of South Carolina. The circuit court held the tender bad, on the double ground that the issue of the scrip was in contravention of the Constitution of the state and that the scrip was a bill of credit within the prohibition of article 1, § 10, of the Constitution of the United States. 122 Fed. 1012. Judgment was given for the plaintiff, Robinson, and this writ of error was brought, setting up that the contract The guaranty from which the scrip was to relieve the state was a guaranty of bonds of the Blue Ridge Railroad Company, which was indorsed upon them by authority of an act approved September 15, 1868. The state long had favored this road, and had held its stock. It had authorized the guaranty of bonds in 1852, *67 (196 U. S. 133) M. Coffin, Plffs. in Err., v. STATE OF IOWA. Error to state court-decision on non-Federal ground commerce - C. O. D. shipments of intoxicating liquors-when subject to seizure under state law. and again in 1854, repealing the former | AMERICAN EXPRESS COMPANY and R. act. But the act of 1868 recited that the comptroller general of the state had not indorsed any of the bonds issued under the act of 1854, and that the conditions imposed upon such indorsement had become impossible and injudicious. So it might be assumed from the face of the statute of 1868 that there was no outstanding liability represented by the guaranty under that statute, and we see no ground for doubt that the guaranty must be considered as a new contract, made for the first time, in substance as well as form, after the Constitution of 1868 went into effect. 1. A writ of error to review a decision of a state court upholding a seizure, under the state laws, of intoxicating liquors shipped C. O. D. into that state from another state, on the ground that the sale was completed in the former state, will not be dismissed on the theory that its ruling rests upon a non-Federal ground broad enough to sustain it, where the protection of the commerce clause of the Federal Constitution was directly invoked in the state court. one state into another cannot be subjected to seizure under the laws of the latter state, while in the hands of the express company, without infringing the commerce clause of the Federal Constitution. The guaranty under the act of 1868 cannot be put under the head of "such debts as are expressly authorized in this Constitution," since it was not in the form required for debts* contracted under the Constitution of 1868. We are of opinion that 2. Intoxicating liquors shipped C. O. D. from it equally little satisfies the other exception in article 9, § 10, quoted above, of a contract made for the redemption of an "evidence of indebtedness previously issued." Whether the word "previously" refers to the date of the Constitution or to the date of issuing the guaranty, the guaranty of 1868 is not and does not purport Argued December 2, 1904. Decided January to be made for the redemption of a previous evidence of debt. It is argued that, whether there was a liability or not, the acts before 1868 having purported to pledge the credit of the state to secure the bonds of the railroad company, as they did, there was color of liability, and the act of 1868, or, at any rate, the act of 1872, authorizing the bond scrip, was the adjustment of a claim against the state under article 14, 4, of the state Constitution. But the act of 1868 did not purport to be an adjustment. On the contrary, it purported, as we have said, to give new aid to the railroad, and to authorize an original issue. The act of 1872, again, dealt only with the supposed lability under the act of 1868, and provided for the satisfaction of that. If that liability did not exist, the statute no more could ratify it than it could call it into being. The liability for which scrip could be issued was required by the Constitution to be one existing before the issue was made. Moreover, the act of 1872 did not purport to be an adjustment of a matter in dispute, or an adjustment in any sense. It simply assumed that there was an outstanding liability, and provided for the satisfaction of it. The question is not whether payment of the bond scrip would be valid, but whether the bond scrip was issued under the conditions which the state Constitution imposed. Judgment affirmed. [No. 67.] 3, 1905. IN ERROR to the Supreme Court of the State of Iowa to review a judgment which reversed a judgment of the Tama District Court, which had reversed a judgment of a justice's court, sustaining a seizure of intoxicating liquors shipped C. O. D. into the state from Illinois, while in the hands of the express company's agent at the place of delivery. Reversed and remanded for further proceedings. See same case below, 118 Iowa, 447, 92 N. W. 66. Statement by Mr. Justice White: *The American Express Company received at Rock Island, Illinois, on or about March 29, 1900, four boxes of merchandise to be carried to Tama, Iowa, to be there delivered to four different persons, one of the packages being consigned to each. The shipment was C. O. D., $3 to be collected on each package, exclusive of 35 cents for carriage on each. On March 31 the merchandise reached Tama, and on that day was seized in the hands of the express agent. This was based on an information before a justice of the peace, charging that the packages contained intoxicating liquor held by the express company for sale. The express company and its agent answered, setting up the receipt of the packages in Illinois, not for sale in Iowa, but for carriage and delivery to the consignees. An agreed statement of *134 141 facts was stipulated admitting the receipt, | court of Iowa in this case. True, also, the carriage, and the holding of the pack-writ of error was prosecuted from this court ages as above stated. The seizure was sus- to the Vermont court upon the assumption tained. Appeal was taken to a district that the commerce clause of the Constitucourt. The express company and its agent tion was involved, but this court dismissed amended their answer, specially setting up the writ of error because it did not appear the commerce clause of the Constitution of that the commerce clause of the Constituthe United States. There was judgment in tion was relied on in the state court, was in favor of the express company, and the state any way called to the attention of that of Iowa appealed to the supreme court and court, or was passed upon by it. As on this obtained a reversal. 118 Iowa, 447, 92 N. record it appears that the protection of the W. 66. This writ of error was prosecuted. commerce clause was directly invoked in the state court, it is apparent that the O'Neil Mr. Lewis Cass Ledyard for plaintiffs Case is inapposite. And as, in order to dein error. cide the contention that the judgment be Mr. Charles W. Mullan for defendant low rests upon an adequate non-Federal in error. * Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: ground, we must necessarily consider how far the C. O. D. shipment was protected by the commerce clause of the Constitution, which is the question on the merits, we pass from the motion to dismiss to the consideration of the rights asserted under the commerce clause of the Constitution. We can best dispose of such asserted rights by a brief reference to some of the controlling adjudications of this court. In Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062, it was held that the statutes of Iowa forbidding common carriers from bringing intoxicating liquors into the state of Iowa from another state or territory without obtaining a certificate required by the laws of Iowa was void, as being a regulation of commerce between the states, and, therefore, that those laws did not justify a common carrier in Illinois from refusing to receive and transport intoxicating liquors consigned to a point within the state of Iowa. Although the majority of the supreme court of Iowa doubted the correctness of a ruling previously made by that court, nevertheless it was adhered to under the rule of stare decisis, and was made the basis of the decision in this cause. In the previous case it was held by the supreme court of Iowa that, where merchandise was received by a carrier with a duty to collect the price on delivery to the consignee, the merchandise remained the property of the consignor, and was held by the carrier as his agent with authority to complete the sale. Upon this premise it was decided that intoxicating liquors shipped C. O. D. from another state were subject to be seized on their arrival in Iowa, in the hands of the express company. Sustaining, upon this principle, the seizure in this case, the supreme court of Iowa did not expressly consider the defense based on In Leisy v. Hardin, 135 U. S. 100, 34 L the commerce clause of the Constitution of ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. the United States, because the court deemed Rep. 681, it was held that a law of the state that its ruling on the subject of the effect of Iowa, forbidding the sale of liquor in that of the C. O. D. shipment was a wholly non-state, could not be made to apply to liquors Federal ground, broad enough to sustain the conclusion reached. And this the court considered was sanctioned by O'Neil v. Vermont, 144 U. S. 324, 36 L. ed. 450, 12 Sup. Ct. Rep. 693. shipped from another state into Iowa, before the merchandise had been delivered in Iowa, and there sold in the original package, without causing the statute to be a regulation of commerce, repugnant to the Constitution In accord with the opinion of the supreme of the United States. In Rhodes v. Iowa, court of Iowa it is insisted at bar that this 170 U. S. 412, 42 L. ed. 1088, 18 Sup. Ct. writ of error should be dismissed for want Rep. 664, the same doctrine was reiterated, of jurisdiction, because the decision below except that it was qualified to the extent involved no Federal question, and the case called for by the provisions of the act of of O'Neil v. Vermont, 144 U. S. 324, 36 L. Congress of August 8, 1891 (26 Stat. at L. ed. 450, 12 Sup. Ct. Rep. 693, is relied upon. 313, chap. 728, U. S. Comp. Stat. 1901, p. The contention is untenable. As pointed 3177), commonly known as the Wilson act. out in Norfolk & W. R. Co. v. Sims, 191 U. In that case a shipment of intoxicating S. 446, 48 L. ed. 256, 24 Sup. Ct. Rep. 151, liquors had been made into the state of the view taken of the O'Neil Case is a mis- Iowa from another state, and the agent of taken one. True, in that case the supreme the ultimate railroad carrier in Iowa was court of Vermont gave to a C. O. D. shipment proceeded against for an alleged violation the effect attributed to it by the supreme' of the Iowa law, because, when the merchan. But we need not consider this subject. Beyond possible question, the contract to dise reached its destination in Iowa, he had moved the package from the car in which it had been transported to a freight depot, pre-sell and ship was completed in Illinois. The paratory to delivery to the consignee. The right of the parties to make a contract in contention was that, as by the Wilson act, Illinois for the sale and purchase of merthe power of the state operated upon the chandise, and, in doing so, to fix by agreeproperty the moment it passed the state ment the time when and condition on which boundary line; therefore the state of Iowa the completed title should pass, is beyond had the right to forbid the transportation question. The shipment from the state of of the merchandise within the state, and to Illinois into the state of Iowa of the merpunish those carrying it therein. This was chandise constituted interstate commerce. not sustained. The court declined to ex- To sustain, therefore, the ruling of the court press an opinion as to the authority of Con- below would require us to decide that the gress, under its power to regulate commerce, law of Iowa operated in another state so as to delegate to the states the right to for- to invalidate a lawful contract as to inbid the transportation of merchandise from terstate commerce made in such other state; one state to another. It was, however, de- and, indeed, would require us to go yet cided that the Wilson act manifested no at- further, and say that, although, under the tempt on the part of Congress to exert such interstate commerce clause, a citizen in one power, but was only a regulation of com- state had a right to have merchandise conmerce, since it merely provided, in the case signed from another state delivered to him of intoxicating liquers, that such merchan- in the state to which the shipment was made, dise, when transported from one state to an- yet that such right was so illusory that it other, should lose its character as inter- only obtained in cases where, in a legal state commerce upon completion of deliv-sense, the merchandise contracted for had ery under the contract of interstate shipment, and before sale in the original packages. been delivered to the consignee at the time and place of shipment. When it is considered that the necessary *The doctrine of the foregoing cases was result of the ruling below was to hold that, applied in Vance v. W. A. Vandercook Co. wherever merchandise shipped from one 170 U. S. 438, 442, 42 L. ed. 1100, 1102, 18 state to another is not completely delivered Sup. Ct. Rep. 674, to the right of a citizen to the buyer at the point of shipment so as of South Carolina to order from another to be at his risk from that moment, the state, for his own use, merchandise, con- movement of such merchandise is not intersisting of intoxicating liquors, to be deliv-state commerce, it becomes apparent that ered in the state of South Carolina. the principle, if sustained, would operate materially to cripple, if not destroy, that freedom of commerce between the states which it was the great purpose of the Constitution to promote. If upheld, the doctrine would deprive a citizen of one state of his right to order merchandise from another state at the risk of the seller as to delivery. It would prevent the citizen of one state from shipping into another unless he assumed the risk; it would subject contracts made by common carriers, and valid by the laws of the state where made, to the laws of another state; and it would remove from the protection of the interstate commerce clause all goods on consignment upon any condition as to delivery, express or implied. Besides, it would also render the commerce clause of the Constitution inoperative as to all that vast body of transactions by which the products of the country move in the channels of interstate commerce by means of bills of lading to the shipper's order, with drafts for the purchase price attached, and many other transactions essential to the freedom of commerce, by which the complete title to merchandise is post Coming to test the ruling of the court below by the settled construction of the commerce clause of the Constitution, expounded in the cases just reviewed, the error of its conclusion is manifest. Those cases rested upon the broad principle of the freedom of commerce between the states, and of the right of a citizen of one state to freely contract to receive merchandise from another state, and of the equal right of the citizen of a state to contract to send merchandise into other states. They rested, also, upon the obvious want of power of one state to destroy contracts concerning interstate commerce, valid in the states where made. True, as suggested by the court below, there has been a diversity of opinion concerning the effect of a C. O. D. shipment, some courts holding that, under such a shipment, the property is at the risk of the buyer, and therefore that delivery is completed when the merchandise reaches the hands of the carrier for transportation; others deciding that the merchandise is at the risk of the seller, and that the sale is not completed until the payment of the price, and delivery to the consignee, at the point of destina-poned to the delivery thereof. tion. But general considerations need not be |