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livered them to defendant at Rawlins. It alleged that the defendant placed on the bill of lading the letters "S. L. C. & W.," which were well known to plaintiff and its agents to be an abbreviation for the words, "Shipper's load, count and weight," clearly indicating that the defendant had not inspected, nor counted, nor loaded, nor weighed the shipment, that the shipment was loaded, counted and weighed by the shipper alone, that no one except the shipper had any knowledge in that respect; and that the bill of lading so marked with said letters was accepted and received by the shipper without objection or protest.

As a second defense the answer set up failure of plaintiff to comply with the constitution and statute of the State of Wyoming permitting foreign corporations to transact business in the State of Wyoming, and because of that failure it was alleged plaintiff had no enforceable rights growing out of the shipment.

In its replication plaintiff denied any knowledge on its part at the time the bill of lading was issued that it had thereon the letters "S. L. C. & W.," denied they had any meaning further than that the defendant had received substantially the amount of goods specified in the bill of lading and it would not be responsible for failure to deliver the exact quantity named therein if it delivered substantially the quantity so specified and delivered all it had received. In its reply to the second defense plaintiff alleged that the shipment in question was a part of plaintiff's interstate business, that it leased a warehouse in Rawlins and placed an agent in charge thereof for the temporary purpose of there collecting pelts or hides which it might purchase in Wyoming, all of which after being collected were to be shipped out by it into other States, that there was no market at Rawlins in hides and pelts, and that the transaction in question was a part of and incidental to interstate commerce.

After the court overruled plaintiff's demurrer to the second defense the defendant moved for judgment on the pleadings, which was sustained. Thereupon this writ of error was sued out. The court filed a written opinion in sustaining the demurrer, wherein it held that plaintiff's admitted failure to comply with the constitution and statute of Wyoming left it without the right to maintain this action; and that is the issue presented here.

"No corporation organized under the laws of Wyoming Territory or any other jurisdiction than this State, shall be permitted to transact business in this State until it shall have accepted the constitution of this State and filed such acceptance in accordance with the laws thereof."

Section 5074, Wyoming Compiled Statutes 1920:

"No corporation organized under the laws of Wyoming Territory, or any other jurisdiction than the State of Wyoming, shall be permitted to transact business in this State until it shall have accepted the constitution of this State. Such acceptance shall be executed and acknowledged in all respects in the manner provided by the laws of Wyoming and the by-. laws of the corporation accepting the constitution, for the execution of deeds, and when duly executed shall be filed and recorded in the office of the secretary of state, and it shall be the duty of the secretary of state, upon the filing of any acceptance of the constitution duly executed, to note on the margin of the record of the certificate of incorporation of the corporation filing the same the fact that such acceptance is filed, which notation shall also refer to the book and page wherein appears the record of such acceptance: Provided, however, that every acceptance of the constitution of this State by any corporation, railroad or other company, executed and filed in the office of the secretary of state prior to the ninth day of January, one thousand eight hundred and ninety-one, which is signed by one or more of the principal officers of such corporation, and has the corporate seal of such corporation affixed thereto, is hereby legalized and shall have the same force and effect in all respects as if the same had been executed and filed in conformity with the requirements of this section."

We think it obvious that the ruling of the court was wrong, if we give attention only to the terms of the State constitution and statute. They do not declare contracts made within the State by non-complying corporations to be void obligations, or even voidable. No contention of that kind is made by counsel for defendant in error. They argue, however, that the Supreme Court of that State has construed these provisions, and that that construction, which must be accepted by the Federal court, prevents recovery by the plaintiff. But it is not claimed those decisions hold contracts made by a non-complying corpora

The provisions of the constitution and tion void transactions. It is argued that such statutes on the subject are these:

Article 10, § 5, Wyoming constitution:

transactions were held voidable by the State supreme court, and being voidable at the

23 F.(2d) 65

option of defendant the effect is equivalent to a holding that they were absolutely void. The decisions relied on are found in Gould Land & Cattle Co. v. Rocky Mountain Bell Telephone Co., 17 Wyo. 507, 101 P. 939, and Interstate Construction Co. v. Lakeview Canal Co., 31 Wyo. 191, 224 P. 850. In the first case excerpts can be found in the opinion which tend to support the contention of counsel for defendant in error. They constitute the argumentative part of the opinion on which the final conclusion of the court rested. Contrary excerpts indicating that the court was not of the opinion that the contract was either void or voidable may also be found. In the Gould Land & Cattle Co. Case the court said: "The matter pleaded in the second defense [failure of plaintiff to comply with the statute] went to the question as to whether plaintiff had any legal standing in court. This question also involves the validity or invalidity of the contract, for, if nonenforceable in this jurisdiction as against the plea in bar, it is everywhere nonenforceable as against such plea." But it was plaintiff's standing in the State court which was then under consideration. The court was not concerned with its standing in any other court; and that court knew the settled rule that unless the contract was made void by the terms of the constitution and statute, or by decision of the highest court of the State holding that the constitution or statute made it void, still a plaintiff could sue in a Federal court, notwithstanding he might be denied that right in the State court. It would have been going far in either of those cases to have said that the constitution and statute rendered the contract void; and the court refrained from so deciding. In fact the court said: In the absence of a statute expressly declaring them to be void, they are not void, but as against such corporation voidable by a plea in bar;" and that the plea might be interposed or waived. It rather accepted both provisions at their face and said because of them the contracts would not be enforced in the Wyoming courts. That was short of construing them or interpreting their meaning. The court in the first case seemed to be concerned with the rule of comity and the State's policy declared by the constitution and statute, and whether under that rule and policy a foreign corporation was entitled to sue in the State court. There would have been no occasion to consider the questions of comity and public policy if the court were of opinion constitution and statute rendered the contract void. It quoted from Seamans v. Temple Co., 105 Mich. 400,

660 •

63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457: "The doctrine of state comity will not be applied in behalf of a foreign corporation seeking to recover upon a claim or contract expressly prohibited by law, or one which is clearly at variance with the settled policy of the state;" and again from Rough v. Breitung, 117 Mich. 48, 75 N. W. 147, to the effect that there is no remedy equally effective to compel obedience to conditions of admission as to hold such contracts to be unenforceable. Finally the court stated the ground of its holding to be this: "Upon the record we are forced to the conclusion that the contract, damages for breach of which are sought, was a corporation contract nonenforceable as against the second defense under the law and the decisions above cited." The later case follows the prior one. It was said, in reference to the prior case: "The court held that the constitutional and statutory provisions above mentioned are mandatory and make unlawful, voidable, and unenforceable all contracts entered into in this state in violation thereof." In conclusion the court in the later case said: "It must be clear, from what we have said, that we must hold the claim of the appellant unenforceable unless we overrule the Gould Case, supra."

We think it clear that the court, in both of these cases, held, and only held, that a claim arising out of business transacted in the State by a foreign corporation which had not complied with the State statute and constitution was nonenforceable in the courts of the State. What was said by the court in the later case, about the transaction being unlawful and voidable, was said by way of argument and as reasons for the conclusion that such a contract was not enforceable. The transactions were, of course, unlawful in the sense that a failure to comply with the requirement of the constitution and statute was unlawful; and they were voidable in the sense that the obligation could not be enforced there against a defendant who plead noncompliance with the requirements. And thus it seems clear that neither the constitution nor the statute, in their terms, nor by the construction put upon them by the State supreme court, declares or attempts to render the contractual obligations absolutely void. Plainly, there was no such purpose in the minds of the framers of the constitution, or of the legislature. Neither declares or attempts to declare how the contract will be affected. They are both directed to the prevention of the transaction of business by such a corporation, without any intimation or

suggestion as to the effect thereof on the validity of the contract under which the business was transacted. The opinion in each of those cases was written with that fact in mind, and hence the conclusion in each went no further than to hold that the obligation under which the business was transacted was nonenforceable in the courts of the State that adopted the constitution and enacted the statute. In David Lupton's Sons v. Auto Club, 225 U. S. 489, 32 S. Ct. 711, 56 L. Ed. 1177, Ann. Cas. 1914a, 699, the plaintiff's claim was based on transactions pursuant to contract performed in the State of New York. It was a foreign corporation and had not complied with the State's statute, which denied it the right to maintain an action in the State because of its noncompliance. It was held that the plaintiff could maintain its action in the Federal court, that the statute not having struck down the obligation itself and declared it absolutely void, the State was without power to declare when a right of action was or was not maintainable in any other court. Cases maintaining the rule in this and other circuits are, Blodgett v. Lanyon Zinc Co., 120 F. 893; Boatmen's Bank v. Fritzlen, 221 F. 154; Ockenfels v. Boyd, 297 F. 614; Johnson v. New York Breweries Co., 178 F. 513; Bradford v. Ind. Harbor Belt R. Co., 16 F. (2d) 836. We have taken the point as counsel put it-liability upon an express contract of shipment made with a foreign corporation, though a bill of lading is not a requisite to the liability of the carrier as an insurer, which the law raises; but in that case the plaintiff must show actual delivery and loss.

Plaintiff in error complains of the action of the court in overruling its motion to strike that part of the answer which plead receipt by defendant for shipment of only 9059 lbs. of pelts and that it was relieved from liability for any more because of the letters "S. L. C. & W." on the bill of lading. The alle gations in the answer in that respect are in part these:

"The defendant alleges that the plaintiff was the consignor as well as the consignee of said pelts, and that as plaintiff well knew at the time said shipment was delivered to the defendant only 9059 lbs. of pelts were delivered to the defendant for shipment, and that the agent of this defendant before executing the bill of lading covering said shipment and before said shipment was delivered to this defendant placed on said bill of lading in a prominent and conspicuous manner and place the letters 'S. L. C. & W.'

and that said letters were to the shipping

public and to all persons familiar with shipping goods and merchandise by freight and to this defendant and its agent and to the plaintiff and to each and all of its agents known to be an abbreviation for the words 'Shipper's load, count and weight,' and known to indicate and affirm and mean that this defendant had not inspected nor counted, nor weighed the said shipment nor any part thereof, and that said shipment was received with and upon the specific understanding expressed in writing upon said bill of lading that no reliance was to be placed by any one on any statement in the bill of lading concerning the character or the weight or the amount or the quantity or the value of said shipment, or either or any of them, or the number of articles included in said shipment, and that the defendant had no knowledge concerning the character, weight, amount, value or quantity of said shipment or either or any of them, or concerning the number of articles included in said shipment, and that said shipment was loaded, counted and weighed by the shipper alone and that no one except the shipper had any knowledge concerning said shipment. The defendant alleges that the bill of lading so conspicuously marked with the letters aforesaid was without objection or protest accepted and received by the shipper prior to the delivery of said shipment to this defendant."

Counsel for plaintiff in error bases his argument that these allegations constituted no defense and that the court erred in overruling its motion to strike, on sections 4366 and 4367 Wyoming Compiled Statutes 1920. These sections declare it to be unlawful and a criminal offense for any carrier, or any officer, agent or servant of a carrier to issue a bill of lading "until the whole of the property as described therein shall have been actually received and is at the time under the actual control of such carrier, to be transported." They further provide that if a bill of lading be issued in violation of the requirements of the statute the carrier "shall be estopped, as against all and every person or persons injured thereby who shall acquire any such false or duplicate bill of lading in good faith and for value, to deny the receipt of the property as described therein; and such issuing carrier shall be liable to any and every such person for all damages, immediate or consequential, which he or they may have sustained because of reliance upon such bill whether the person or persons guilty of issuing or negotiating such bill shall have been convicted under this section or not." Taking the allegations of the an

23 F.(2d) 69

swer to be true, as the lower court was required to do on considering the motion to strike, we think there was no error in denying the motion. If, as alleged, the plaintiff was both consignor and consignee of the shipment, knew that only 9059 lbs. of pelts were delivered, knew the bill of lading when delivered contained the four letters and the meaning attributed to them in the answer, then we do not think the plaintiff is in a position to take advantage of the estoppel which the statute raises against the carrier. It cannot say, if the facts alleged be true, that it acquired the bill of lading in good faith and for value and that the damages which it claims to have suffered accrued be

cause of its reliance on that part of the bill of lading which stated that the shipment contained 23,423 lbs. of pelts. A litigant must bring himself within the terms of a statute before he can claim its protection.

In view of what has been said it seems the question whether the shipment was interor intrastate is an immaterial one.

The order sustaining defendant's motion for judgment is reversed and the cause remanded for further procedure.

Suit by George McD. White and another against John C. Veatch and others. Decree for plaintiffs, and defendants appeal. Affirmed.

I. H. Van Winkle, Atty. Gen., of Oregon, and Willis S. Moore, Asst. Atty. Gen., of Oregon, for appellants.

J. M. Scudder and John K. Kollock, both of Portland, Or., for appellees.

E. W. Anderson, Asst. Atty. Gen., of Washington, amicus curiæ.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge. Appellees, plaintiffs below, under licenses issued by the state of Washington, operate fish traps in the Columbia river, and contend that the locations of the traps are within the territorial jurisdiction of that state. Defendants appellants deny that the traps are located within the jurisdiction of Washington, and allege that they are within the state of Oregon. The District Court held that the traps were located within the jurisdiction of Washington, and issued injunction against interference. Defendants, who are fish commissioners of

SCOTT, District Judge, concurs in the the state of Oregon, appealed. result.

VEATCH et al. v. WHITE et al. Circuit Court of Appeals, Ninth Circuit. November 28, 1927.

1. States

No. 5205.

12(2)-Creation of slough channel in Columbia river by avulsion did not affect boundary of states designated as middle channel of river (Act Feb. 14, 1859, § 1 [11 Stat. 383]; Const. Wash. art. 24, § 1).

Creation of slough channel in Columbia river by avulsion, and not by erosion, held not to affect boundary of states fixed by Act Feb. 14, 1859, § 1 (11 Stat. 383), and Const. Wash. art. 24. § 1, as middle channel of river, where it was divided by islands, and at the middle of the widest channel thereof, and demarking line remained center of channel before avulsion.

2. States 12 (2)-Shoaling and elevation of river bottom held not to affect question of state boundary, designated as river channel.

Shoaling and elevation of bottom of river held not to affect question of state boundary, designated as middle channel of river affected thereby, since center line of channel does not mean deepest channel, nor the boundaries defined by widest navigable channel.

Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.

Reduced to a short statement, appellants' position is that about the points of location of the traps the middle of the channel of the Columbia has shifted northward until it is now between Puget Island and the fish traps; that such change has resulted from erosion of the shore of Puget Island, and the formation of shoals or sand bars on the Oregon side; and that the boundary between Washington and Oregon has correspondingly changed.

In the act of Congress admitting Oregon into the Union (Act Feb. 14, 1859, 11 Stat. 383), the boundary was fixed as follows: "Beginning one marine league at sea due west from the point where the forty-second parallel of north latitude intersects the the same; thence northerly, at the same distance from the line of the coast, lying west and opposite the state, including all islands within the jurisdiction of the United States, to a point due west and opposite the middle of the north ship channel of the Columbia river; thence easterly, to and up the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof, to a point near Fort Walla Walla." Section 1.

The boundary of the state of Washington was fixed by article 24, § 1, Constitution of Washington (2 Hill's Ann. St. & Codes,

p. 851), as follows: "Beginning at a point in the Pacific Ocean one marine league due west of and opposite the middle of the mouth of the north ship channel of the Columbia river: thence running easterly to and up the middle channel of said river and where it is divided by islands up the middle of the widest channel thereof to where the forty-sixth parallel of north latitude crosses said river near the mouth of the Walla Walla river." We gather from the evidence that the traps are located in a part of the Columbia river where it is divided into two channels by Puget Island which belongs to the State of Washington, the channel south of the island being the wider of the two. The locations are at points which were formerly in the exposed area of Puget Island on the Washington side. After 1887 the southern shore of Puget Island slowly eroded and the shore line moved northward approximately 1,000 feet or more, with the result that the river was widened and the center of the channel moved north to some extent. For a long time prior to 1894 the middle of the channel of the Columbia was at a considerable distance south of the point where the fish traps are located, and certainly until about 1894 the only navigable channel in the immediate vicinity of the traps was south of the points where the traps are located.

Years ago, between 1859 and 1874, in the southern shore of Puget Island there was a slough running in a north westerly direction from the Columbia river. The slough, although only used by fishing boats, had a channel that was shallow and more or less filled with snags. So much of the area of Puget Island as was separated from the mainland by this slough was called Coffee Island, which gradually became submerged. Some time before 1894 the water of the river began to bore out and enlarged the slough, and when freshet waters of 1894 came the slough was so enlarged that a channel formed, which after 1894 was used for navigation. After this new channel was created, shoals formed to some extent on the south, or Oregon, side of Coffee Island, and navigation on that side became unsafe for deep draft ships, but there is no evidence of any erosion of the Oregon shore. In 1893 government engineers endeavored to deepen the channel between Coffee Island and Puget Island, but in 1925 they abandoned their efforts and dredged a new channel close to the Oregon shore.

[1] Our opinion is that the creation of the slough channel was not by erosion, but was avulsion, and therefore did not affect the

boundary of the states. This view is strengthened by the opinion of the court in Nebraska v. Iowa, 143 U. S. 359, 12 S. Ct. 396, 36 L. Ed. 186, where it was said to be well settled that, "where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary, and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion. In Gould on Waters, § 159, it is said: 'But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates."" In re Buffalo, 206 N. Y. 319, 99 N. E. 851.

[2] Nor does the fact of the shoaling and elevation of the bottom of the river affect the question, for it is laid down in Washington v. Oregon, 211 U. S. 127, 29 S. Ct. 47, 53 L. Ed. 118, that the center line does not mean the deepest channel; nor that the boundary is defined by the widest navigable channel. In that case the court said:

"Concede that to-day, owing to the gradual changes through accretion, the north channel has become much less important, and seldom, if ever, used by vessels of the largest size, yet when did the condition of the two channels change so far as to justify transferring the boundary to the south channel, on the ground that it had become the main channel? When and upon what conditions could it be said that grants of land or of fishery rights made by the one state ceased to be valid, because they had passed within the jurisdiction of the other? Has the United States lost title to Sand Island by reason of the change in the main channel? And, if by accretion the north should again become the main channel, would the boundary revert to the center of that channel? In other words, does the boundary move from one chanrel to the other, according to which is, for the time being, the most important, the one most generally used? These considerations lead to the conclusion that when, in a great river like the Columbia, there are two substantial channels, and the proper authorities have named the center of one channel as the boundary between the states bordering on that river, the boundary, as thus prescribed, remains the boundary, subject to the changes in it which come by accretion, and is not moved to the other channel, although the latter in the course of years

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