818
DDBBAL BBPORTBD.
it with care and diligence is the ordinary one. It follows that the matter demurred to neither constitutes a defense to the action,nor a mitigation of the damages sought to be recovered thereby, and therefore the demurrer must be sustained; and it is so ordered. In addition to the authorities above cited, the following cases have been examined, and are referred to as bearing on the question involved in this cause from various stand-points: Ra,il'road Co. v. Lockwood, 17 Wall. 357; Jones v. Voorhees, 10 Ohio, 145; True v. International Tel. 00. 60 Me. 9; Bartlett v. W. U. Tel. 00. 62 Me. 209; Redpath v. Same, 112 Mass. 71; Grinnell v. Sume, 113 Mass. 299; New York x W. P. Tel. 00. v. Dryburg, 35 Pa. St. 298; Passmore v. W. U. Tel. Co. 78 Pa. St. 238; Telegraph Co. v. Griswold, 37 Ohio St. 301; Breese v. U. S. Tel. 00.48 N. Y. 132; Wunn v. W. U. Tel. Co. 37 Mo. 472; W. U. Tel. 00. v. Fenton, 52 Ind. 1; White v. W. U. Tel. 00. 14 FED. REP. 710, and note, 718.
the measure of damages for a breach of the nndertaking to transmit
LOGWOOD and Wife v. MEMPHIS & C. R. Co. (Ui"cuit Oourt, W. D. Tennessee. March 18, 1885.) COMMON OAURIERS-DISCRIMINATION-RACE AND COLOR OF PASSENGERS-EQUAL ACCOMMODATIONS.
Equality of accommodation does not mean identity of accommodation, and it is not unreasonaLle, under certain circumstances, to separate white and colored passengers on a railway train, if attention is given to the requirement that all paying the same price shall have substantillily the same comforts, privileges, and pleasures furnished to either class.
Action for the Wrongful Exclusion of a Passenger from a railroad car. Logwood and wife are colored people living at Huntsville, Alabama. She bought a first-class ticket over the defendant's railroad to Courtland,but when she went on the platform of the ladies' car a brakeman, who had allowed several white ladies to enter, closed the door on Mrs. Logwood, and told her she must apply to the conductor of the train for permission to ride in that car, and that she could take a seat in the front car. According to her testimony and that of her witnesses, the conductor told her she must ride in the front car; that she told him she had always been allowed to ride in the ladies' car and thought she should be permitted to do so again, as she was sick and did not wish to ride in the front car, where there was swearing and smoking and whisky drinking, but that the conductor insisted upon her riding in the front car, and told her he would see that there was no swearing, smoking, or drinking. According to the testimony of the conductor and the defendant's other witnesses, he told her he was busy then, but had always allowed her to ride in the ladies' car, and if she would be seated in the front car until he got through he would put her into the ladies' car. She
LOGWOOD 11. IIBIIPBIS .. O. B. 00.
819
t
ordered her trunk off the baggage car, refused to take that train, and underinstructions from her husband kept her ticket, bought another, and went to her destination on the next train in the ladies' car. Both Mrs. Logwood and the conductor testified that she had often traveled with him, and always rode in the ladies' car. The car in the rear was reserved for ladies, and such other passengers as were admitted to it. The front car was a general one, in which smoking was permitted, but on this particular occasion, according to the testimony of defendant, was newer and brighter, and in all respects equal to the rear one in appearance and comfort. Colored people were generally required to ride in the front car, unless objection was made by them, in which case proper persons were allowed to ride in the ladies' car, the plaintiffs always having been permitted to do so. W. M. Randolph, for plaintiffs. Poston J; Poston and L. W. Humes, for defendant. HAMMOND, J., (charging thejnry oraUy.) Common carriers are required by law not to make any unjust discrimination, and must treat all passengers paying the same price alike. Equal accommodations do not mean identical accommodations. Races and nationalities, under some circumstances, to be determined on the facts of each case, may be reasonably separated; but in all cases the carrier must furnish substantially the same accommodations to all, by providing equal comforts, privileges, and pleasures to every class. Colored people and white people may be so separated, if carriers proceed according to this rule. If a railroad company furnishes for white ladies a car with special privileges of seclusion and other comforts, the same must be substantially furnished for colored ladies. All travelers have to submit to some discomforts and inconveniences, and should not be too exacting, but are entitled to polite treatment, free from any kind of indignity. . The brakeman on the train having referred Mrs. Logwood to the conductor, who was the proper officer to decide upon her right to ride in the ladies' car, and she having gone to him, the question in this case must be determined by what occurred between them; and if you believe from the proof that the conductor ratified the act of the brakeman by telling her she must ride in the front car, and would not be permitted to go into the ladies' car, the company is undoubtedly liable for damages, unless you conclude from the evidence that the front car was, under the rule already announced, equal to the ladies' car. But if you believe that the conductor told her that at his convenience he would admit her to the ladies' car, and there was no unreasonable delay or discomfort in so doing, the plaintiffs cannot recover in this case. The court announced that it adopted the opinion of Judge MORRIS in the case of The Sue, 22 FED. REP. 843. as a proper statement of the law of this case, and it was read in argument before the jurY.-1 REP.
320
EEDERAL REPORTER.
NEWBY and others v, BROWNLEE. (GirCitit Court, D. Kan8a8. March 9,1885.)
1.
TAXATION-LAND SOLD UKDER CONFISCATION ACT.
Where land has been sold under the confiscation act of July 17,1862, tlle life· estate of the owner is sold and transferred to the purchaser, and no title reo mains in the United States to exempt such land from taxation by a state. Ordinarily, a tenant for life must pay the taxes assessed on land, if there ill any income to pay them with.
2.
SAME-Du'I'Y OF LIFE-TENANT.
3.
SAME-KANSAS S'I'ATUTE.
In Kansas the land itself is taxed, and it matters not what may be the condition of the title, or who may be the owner; and unless it comes under one of the exemptions named in the statutes it is subject to its burden of the public revenue; following Blue·Jacket v. Commi88ioner8,3 Ran. 347, and Miami Co. v. Brackenridge, 12 Ran. 114. SAME-TAX DEED-SUBSEQ.UENT TAXES UNPAID.
4.
A tax deed is not invalid because the subsequent taxes had not been paid at the date of making it. Where the land bid off at a tax sale is described in the tax deed as .. the north-east eighty acres" of a quarter section, without saying that it is in a squar", this will not invalidate the deed.
5. SAMR-DESCHIPTION OF LAND.
Action in Ejectment. The opinion states the facts. John Doniphan, for plaintiffs. D. S. for defendant. FOSTER, J. The plaintiffs, who are the heirs at law of Nathan Newby, bring this action in ejectment to recover the S. E. t of section 7, township 8, of range 20 E., being 160 acres of land lying in Jefferson county, Kapsas. The defendant, Brownlee, sets up a superior title to the plaintiffs', derived from a series of tax sales, and deeds made on such sales. The plaintiffs attack the defendant's title as illegal, for the reason that the land was not taxable at the time the taxes were levied, and that the tax proceedings and the tax deeds were irregular and illegal, and are null and void. The facts in reference to the title of this land are as follows: In August, 1864, this real estate was seized by the United States marshal of the district of Kansas, in pursuance of a writ issued out of the United States district court of said district, under and by virtue of the act of congress of July 17,1862, known as the "Confiscation Act." In September following the United States attorney for said district filed in said court his libel against the property, averring that Nathan Newby, the owner thereof, was giving aid and comfort to the rebels, and was in armed rebellion against the United States, etc. After admonition duly given, on the twenty-ninth day of November, 1864, said court entered a decree of condemnation and forfeiture of said real estate to the United States. In December following a writ of venditioni exponas was issued to the United States marshal, and in January, 1865, he sold the said real estate under said writ to one James McCormick,
