town, 131 Iowa, 128, 104 N. W. 1121; Goodrich v. Mitchell, 68 Kan. 765, 104 Am. St. Rep. 429, 75 Pac. 1034, 64 L. R. A. 945.

The present New York constitution prescribes that appointments and promotions in the civil service of the state, and of the civil divisions thereof, shall be made according to merit and fitness to be ascertained as far as practicable by examinations, which so far as practicable shall be competitive, with the provision that honorably discharged soldiers and sailors of the late Civil War shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made, and it has been decided that such constitutional provision gives no undue preference to such veterans over other citizens of the state in such examinations, whether competitive or noncompetitive, but its meaning is that when, as a result of such examinations, a list is made up, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preferance without regard to his standing on the list, and as thus understood such constitutional provision will be upheld: Matter of Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447. But a statute providing in effect that as to such veterans competitive examinations for appointment in the civil service shall not be deemed practicable or necessary in cases where the compensation or other emolument of the office does not exceed four dollars per day, is in conflict with such constitutional provision and consequently void: Matter of Sweeley, 12 Misc. Rep. 174, 33 N. Y. Supp. 369, affirmed without opinion, 146 N. Y. 401, 42 N. E. 543; Matter of Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447.

While such constitution provides for a preference of veterans in appointment and promotion in the civil service within the state and does not, in terms or otherwise, provide that they shall be continued in the public service in preference to other employés, the legislature, while it cannot enact laws repugnant to such provision of the constitution, may legislate further in that direction, if, in its judgment, it shall seem wise so to do; and as it created the civil service system in that state substantially as it is now, and before any constitutional provision existed on the subject, it is within its power to place a limit upon the removal of veterans employed in the public service, and a statute providing that no person holding a position by appointment or employment who is an honorably discharged soldier or sailor of the late Civil War "shall be removed from such position or employment except for incompetency or misconduct shown after a hearing upon due notice upon stated charges and with a right to such employé or appointee to a review by writ of certiorari'' is constitutional and valid, and does not extend the preferences of veterans beyond that accorded them by the constitution: Stutzbach v. Coler, 168 N. Y. 416, 61 N. E. 697.

GRIFFIN v. GRIFFIN.

[75 S. C. 249, 55 S. E. 317.]

VENDOR AND PURCHASER-Void Sale Under Mortgage Power-Subrogation.-If a grantee in good faith takes a deed from a purchaser under a power of sale contained in a mortgage believing his title to be good, and such deed proves ineffectual, such grantee is entitled to be subrogated to the rights of the mortgagee to the amount of the purchase money paid to him, and the mortgagor, or one claiming under him, is entitled to have the mortgage debt credited with the amount bid at the sale under the power. (p. 900.),

Wilson & Du Rant, for the appellants.

J. F. Rhame and W. C. Davis, for the appellee.

250 WOODS, J. This appeal is from an order overruling a demurrer to the complaint. The complaint alleged in substance that on February 4, 1884, Moses Levi undertook to sell at public auction six-elevenths of the land therein described under the power contained in a mortgage given to him by the defendant, Joseph D. Griffin, and under this attempted sale subsequently executed to Ferdinand Levi, who was the highest bidder at the sale, what purported to be a deed of conveyance, for the consideration of six hundred and fifty dollars; but that no title really passed, for the reason that the deed was executed by Moses Levi in his own name instead of in the name of the mortgagor; that on February 14, 1891, Ferdinand Levi undertook to convey the same interest in the land to Moses Levi, for the consideration of six hundred and fifty dollars, and that thereafter, on July 16, 1891, Moses Levi conveyed by deed to the plaintiff, for the consideration of one thousand dollars, all his right, title, interest in the land, embracing not only the six shares covered by the attempted sale under the mortgage but other shares subsequently acquired; that plaintiff "purchased the said premises from the said Moses Levi under the honest belief that by the sale thereof to him he would be vested with a perfect, legal title thereto"; that Moses Levi died on the twenty-sixth day of January, 1899, and David Levi and Abe Levi are executors of his will; and that there is due and unpaid on the mortgage the sum of two thousand five hundred and eighty-five dollars, with interest from January 16, 1883, at the rate of ten per cent per annum. Under these allegations, the plaintiff asks to be subrogated to the rights of Moses Levi and Ferdinand Levi to the extent of

the 251

sum of one thousand dollars paid by him for the land, and interest thereon, and that he have judgment of foreclosure for that amount.

A demurrer to the original complaint in the cause was sustained by this court (70 S. C. 220, 49 S. E. 561), but as a result of the views expressed in the former opinion the plaintiff amended in two important particulars: the personal representatives of the deceased mortagee have been made parties defendant, and the allegation has been made that the plaintiff bought from Moses Levi under the belief that he was obtaining a good title. The executors of Moses Levi have made no objection to the sufficiency of the complaint, and in making them parties the plaintiff has brought before the court all who can possibly have any interest in the mortgage. The interest in the cause of the mortgagor, Joseph M. Griffin, and those who claim under him, is necessarily confined to the validity and amount of the mortgage as a present lien on the land; they are not concerned with the question whether the plaintiff is entitled to be subrogated to the rights of Moses Levi, mortgagee, for any defense they may have against the original mortgagee would be effectual against his assignee or one subrogated to his rights. The executors of the mortgage being before the court, any judgment rendered with respect to the interest in the mortgage claimed by the plaintiff must forever preclude them from further demands against the defendants based on the mortgage to the extent of the amount thereof that may be adjudged to belong to the plaintiff.

But, waiving this, the allegations of the complaint, if true, entitle the plaintiff to subrogation in any view that can be taken. It is not necessary to the plaintiff's right of subroga tion to allege and prove that either Ferdinand Levi or Moses Levi honestly believed the sale to be valid and the title made under it good, for the deeds being actually ineffectual to convey the title, the mortgage was not discharged by it, and when the plaintiff paid his money and took the deed from the mortgagee, not as a speculative volunteer, but in good faith believ ing his title to be good, he was entitled 252 to have from the mortgagee the benefit of the mortgage to the extent of the purchase money paid by him. On this point the case of Sims v. Steadman, 62 S. C. 300, 40 S. E. 677, is conclusive. The correlative equity of the mortgagor and those holding under him is to have credit on the mortgage debt for at least six hundred and fifty dollars, the amount of the original bid, as the pro

ceeds of the sale of the land, even if at the resale now demanded the land should bring less than that sum, for the reason that the mortgagor was in no way responsible for the failure to pass a good title by the deeds made under the former auction sale.

It is the judgment of this court that the judgment of the circuit court be affirmed.

The Right to Subrogation is the subject of an extended note to American Bonding Co. v. National etc. Bank, 99 Am. St. Rep. 474.

SKIPPER v. SEABOARD AIR LINE RAILWAY. [75 S. C. 276, 55 S. E. 454.]

CONSTITUTIONAL LAW-Carriers-Interstate Commerce.Statutes requiring carriers by rail to trace freight or express shipped over their lines and the line of the connecting carrier, and making the initial carrier liable for shipment over its own and connecting lines unless a receipt from the connecting carrier is produced, and making the bill of lading issued by the initial carrier prima facie evidence of liability for the loss of or damage to goods in course of transportation, do not unlawfully regulate interstate com(p. 908.)

merce.

Glenn & McFadden and T. Y. Williams, for the appellant. E. Moore, and D. R. Williams, for the appellee.

276 POPE, C. J. The action here was brought against the defendant for three hundred and eighty-two dollars and twenty cents, as damages for the loss 277 of certain contents from a trunk which was delivered to the defendant for transportation beginning at Chester, South Carolina, and ending at Anglewood, Illinois; said trunk containing the baggage belonging to three persons traveling on tickets issued by the defendant from said Chester, South Carolina, to Anglewood, Illinois.

The answer of the defendant admitted that on the 28th of July, 1904, the tickets were bought and paid for by the plaintiff over the defendant's line of railway from Chester, South Carolina, to Atlanta, Georgia, and thence over other connecting lines of railway to Anglewood, Illinois. The defendant also admitted receiving the plaintiff's trunk and the delivery

to her of a check therefor, and that the contract was that the defendant would transport said trunk from Chester, South Carolina, to Atlanta, Georgia, and deliver the same to its connecting lines over which the plaintiff was traveling. It further admits that said trunk was in apparent good order. As to what condition it was in when received by the plaintiff at Anglewood, Illinois, the defendant had no knowledge or information sufficient to form a belief. The defendant further alleges that said trunk was in good order when delivered by it to the Western and Atlantic Railway Company.

The case came on for tritl before special Judge O. W. Buchanan, at Lancaster, South Carolina. Both sides introduced testimony.

The plaintiff's witnesses testified as to the number and value of the articles abstracted from the trunk, and that the trunk when delivered at Anglewood, Illinois, had the lock broken and as to the damages which resulted from the loss of such articles.

The defendant's witnesses testified to the condition of the contracts evidenced by the tickets issued to the plaintiff by the defendant, and also to correspondence between the attorneys for plaintiff and railway authorities. After the charge of his honor, the jury returned the verdict of three hundred and sixty-three dollars and eighty-five cents in favor of the plaintiff.

278 After entry of judgment on said verdict, the defendant appealed on ten grounds, but the appellant confines its ar ment to certain constitutional questions of law. The point. raised by the defendant resolve themselves into an attack upon the constitutionality of sections 1710 and 2176, volume 1, Code of Laws of 1902, and Act No. 1 of the Laws of 1903 of this state. The contention of defendant is that each of said sections of the code and said act of 1903 is unconstitutional, null and void, because when applied to interstate carriers or carriage of baggage such as this, each and all of them impose a burden on interstate commerce, and thus violate the commerce clause of the federal constitution. The following are copies of the sections and act referred to:

Section 1710: "When under contract for shipment of freight or express over two or more common carriers, the re sponsibility of each or any of them shall cease upon delivery to the connecting line 'in good order,' and if such freight or express has been lost, damaged, or destroyed, it shall be the