such loss or damage, together with interest thereon from the date of the filing of the claim therefor until the payment thereof. Failure to adjust and pay such claim within the periods respectively herein prescribed shall subject each common carrier so failing to a penalty of fifty dollars for each and every such failure, to be recovered by any consignee or consignees aggrieved in any Court of competent jurisdiction: Provided, That unless such consignee or consignees recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage, with interest as aforesaid: Provided, further, That no common carrier shall be liable under this act for property which never came into its possession, if it complies with the provisions of section 1710, vol. 1, of the Code of Laws of South Carolina, 1902.

"SEC. 3. That any common carrier, upon complying with the provisions of this act, shall have all the rights and remedies herein provided for against the common carrier from which it received the freight in question.

"SEC. 4. That causes of action for the recovery of the possession of the property shipped, for loss or damage thereto and for the penalties herein provided for, may be united in the same complaint.

"SEC. 5. That all acts or parts of acts inconsistent with this act be, and the same are hereby, repealed.

"Approved the 23d day of February, A. D. 1903. 24 Stat. 81."

P. A. Willcox, H. E. Davis and Wilson & DuRant, for the appellant.

W. C. Davis, for the appellee.

47 WOODS, J. The Belknap Hardware Company, in January, 1905, delivered to the Southern Railway Company at Louisville Kentucky, a steel range and warming closet, consigned to the plaintiff at Manning, South Carolina.

The defendant, Atlantic Coast Line Railroad Company, the terminal carrier, delivered to the plaintiff the warming closet only, and this action was brought in a magistrate's court to recover twenty-one dollars for failure to deliver the range and fifty dollars, the statutory penalty, for failing to adjust and pay the claim within ninety days.

The allegation of the complaint is that the Southern Railway Company undertook carriage and delivery of the goods

to Manning, South Carolina, for itself and the defendant, its connecting line. But the bill of lading expressly provides: "No carrier shall be liable for loss or damage not occurring on its portion of the route."

The defendants' clerk, whose duty it was to check the contents of cars turned over by the Southern Railway to the Atlantic Coast Line Railroad at Columbia, testified the range was marked short on his book and was never received by the Atlantic Coast Line Railroad. The magistrate rendered judgment in favor of the plaintiff for twenty-one dollars damages and fifty dollars for failing to adjust and pay the claim in ninety days, and on appeal the circuit court affirmed the judgment.

It was held in Willett v. Southern Ry., 66 S. C. 477, 45 S. E. 93, that when property received by the initial carrier in good condition is delivered by the terminal carrier in damaged condition, the burden is on the terminal carrier to show the damage did 48 not occur on its own line. The same principle was held to apply to the loss of a part of a carload of goods in Walker v. Southern Ry., 76 S. C. 308, 56 S. E. 952, and in Bradley v. Northwestern Ry. Co., 77 S. C. 317, 57 S. E. 1101, it was held to extend to the loss of a part of several articles shipped under one bill of lading. Applying this last case, the defendant's delivery of the warming closet cast upon it the burden of showing that it had never received the range. The credibility of the testimony that the range had not come into possession of the defendant was for the magistrate and the circuit court to pass on, and had the record disclosed that this evidence was disbelieved on any reasonable ground, the judgment would be affirmed, because this court could not disturb a finding of fact that the presumption of loss by the terminal carrier had not been refuted by credible testimony. The record makes it clear, however, the judgment was not upon this ground, but on the statute of 1903 (24 Stat. 1), under which the defendant as one of the connecting carriers would be liable without respect to whether the range was lost on its line or on that of another carrier. If the act of 1903 is a valid statute, the evidence that the range was never delivered to the defendant carrier would be immaterial, and it was no doubt so regarded by the circuit court. The vital question, therefore, is whether this act of May, 1903, must be held unconstitutional as an attempt to regulate interstate commerce. In Skipper v. Seaboard A. L. Ry. Co., 75 S. C. 276, 117 Am. St. Rep. 901, 55 S. E. 454, 7 L. R. A., N. S., 388, an exception raising the question of the

constitutionality of this act was overruled, but the main question considered in that case was the constitutionality of sections 1710 and 2176 of the Civil Code. We propose now to consider the question of constitutionality of the act of May, 1903, as if it had not been heretofore made.

The statute was intended to make radical changes in the law as to the liability of carriers for losses or damage occurring on connecting lines. The extent of the changes contemplated will be made evident by viewing the state of the law 49 as it appears from the adjudications of the supreme court of the United States and the supreme court of this state, with respect to the relations of connecting lines with each other, and to the owners of goods in course of transportation, and with respect to the right of such carriers to contract, before the enactment of the statute, in contrast with the law as it would be under the statute. The supreme court of the United States held in Michigan Central R. R. Co. v. Mineral S. M. Co., 83 U. S. 318, 21 L. ed. 297, that, in the absence of a contract to the contrary the liability of a common carrier ended with its prompt delivery of the property in good order to the next connecting carrier. This rule was recognized and followed by the same court in Ogdensburg L. C. R. R. Co. v. Pratt, 89 U. S. 129, 22 L. ed. 827, and St. Louis Ins. Co. v. St. Louis etc. R. R. Co., 104 U. S. 146, 26 L. ed. 679, and other cases. The law was held to be the same in this state in Piedmont Mfg. Co. v. Columbia etc. R. R. Co., 19 S. C. 353; Dunbar v. Port Royal & A. Am. St. Rep. 860, 15 S. E. 357; Co., 43 S. C. 461, 21 S. E. 337. vious a stipulation in the bill of lading, limiting the liability of each carrier to its own line, would be a reasonable limitation. In Lewis v. Richmond & D. R. R. Co., 25 S. C. 249, it was held the initial carrier could not, without special authority, make a contract binding upon the terminal carrier.

Ry. Co., 36 S. C. 110, 31 Hill v. Georgia etc. R. R. Under these cases it is ob

Terminal and intermediate carriers were held entitled to the benefit of any reasonable stipulations in the bill of lading limiting their liability, in Harby v. Southern Ry. Co., 75 S. C. 321, 55 S. E. 760.

The act of 1882 (Civ. Code, sec. 2176) provided the initial carrier should be liable for loss or damage to goods until it discharged itself by showing a written receipt from the carrier to which it was its duty to deliver it; and when the initial carrier so discharged itself, the successive connecting carriers were made liable in the like manner, with the right to discharge themselves by like written receipt from the next

carrier. The act further provided, that any carrier, by willfully failing or refusing to produce the written receipt 50 of the next carrier, on the demand of anyone interested, lost the benefit of it in any action brought against the carrier for the loss or damage of the property. This act was held constitutional in Skipper v. Seaboard Air Line Ry. Co., 75 S. C. 276, 117 Am. St. Rep. 901, 55 S. E. 454, 7 L. R. A. 388, and there is no ground to doubt the soundness of that conclusion.

The act did nothing more than relieve persons interested in property lost or damaged in transit of intolerable hardship, by fixing the kind of evidence a carrier shown to have been in actual possession of the property should take, preserve and produce that it had been properly delivered to another carrier. It merely made a rule of evidence less drastic than that which was held to be reasonable and valid in Richmond etc. Co. v. Patterson Tobacco Co., 169 U. S. 311, 18 Sup. Ct. Rep. 355, 42 L. ed. 759. The section of the Virginia Code under consideration in that case was: "When a common carrier accepts for transportation anything directed to a point of destination beyond the terminus of his own line or route, he shall be deemed thereby to assume an obligation for its safe carriage to such point of destination, unless, at the time of such acceptance, such carrier be released or exempted from such liability by contract in writing, . . . . if such thing be lost or injured, such common carrier shall himself be liable therefor, unless, within a reasonable time after demand made, he shall give satisfactory proof to the consignor that the loss or injury did not occur while the thing was in his charge."

In holding the statute to be the legitimate exercise by the state of Virginia of the power to determine the form in which contracts may be proved, not amounting to a regulation of interstate commerce, the court says, at page 314: "The inadequacy of the bill of lading to protect the carrier from liability beyond its own line resulted, it is true, from the statute, but not because the statute forbade the carrier from contracting so as to limit his liability, but because the contract which he did make was not in the form required by law, and therefore was not evidence that there was such a contract. Indeed, the entire argument, upon which it is 51 asserted that error was committed by the court below, but manifests in varying forms of statement the fallacy already noticed, that is, it comes from obscuring the difference between substance and form, between a power to contract and the asserted right in

availing of the authority, to disregard the requisites essential to show a valid contract, and this confusion also marks the difference between the case now presented and the very many adjudged cases cited by the plaintiff in error in support of its proposition."

The act of May, 1903, now under consideration, is entirely different in scope from the Virginia statute and our statute of 1882. It goes far beyond prescribing a rule of evidence or the form of contract. By it, the General Assembly has undertaken to make a complete change in the legal relations of connecting carriers to each other and to the owners of goods in transit, and in the right of such carriers to contract. The act provides that all carriers which recognize, acquiesce in, or act upon a contract for through shipment shall be statutory connecting carriers, and, as such, agents of each other with respect to the matter of transportation, and they shall be under contract each with all the others, and with the shipper, owner and consignee for safe and speedy transportation of the property from the point of shipment to destination. Any through bill of lading, issued by any one of such carriers, showing that any one of them received the property for through transportation, is made prima facie evidence of the agency of each other and all the others, and of the contract of each and all of such carriers with each other and with the owner to transport the property with safety and speed from the point of shipment to destination; and against this prima facie evidence of agency and contract the express stipulations of the parties themselves are made unavailing.

In consonance with these provisions it is further enacted, the person sustaining damage or loss shall have the right of recovery against any one of the connecting carriers he may choose to sue; the liability being unaffected by proof that 52 the property had been lost or damaged on another line, or had never come into possession of the carrier sued. The carrier singled out by the shipper, owner or consignee is in turn allowed to recover from the carrier through whose negligence the loss, damage or injury was sustained, together with costs.

In Central of Georgia Ry. Co. v. Murphey, 196 U. S. 194, 25 Sup. Ct. Rep. 218, 49 L. ed. 444, the supreme court of the United States held a statute of Georgia unconstitutional as to interstate commerce which imposed upon the initial or any connecting carrier, as a condition of availing itself of a valid contract of exemption from liability beyond its own