Statement of the Case.

Reports, contain no adjudication to the contrary. The point decided in each was that smoking by workmen in the mill did not avoid the policy, and the remark of the judge delivering the opinion, that in such a case the assured undertakes that he will not himself do the act, was obiter dictum. Ins. Co. of North America v. McDowell, 50 Illinois, 120, 131; Aurora Ins. Co. v. Eddy, 55 Illinois, 213, 219.

Judgment reversed, and case remanded to the Circuit Court, with directions to render judgment for the plaintiff's upon the special verdict.

HOSFORD v. HARTFORD FIRE INSURANCE
COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 264. Argued April 26, 27, 1888. - Decided May 14, 1888.

An application for fire insurance, warranted to be "a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value, ownership, title, incumbrances of all kinds, insurance and hazard of the property to be insured," contained these questions: "Is there a mortgage, deed of trust, lien, or incumbrance of any kind, on property? Amount, and in whose favor?" Held, that the questions related only to incumbrances created by the act or with the consent of the applicant, and that an omission to disclose an existing lien created by statute for unpaid taxes was no breach of the warranty.

THIS case was substantially like that of Hosford v. Germania Ins. Co., ante, except that no question arose as to smoking on the premises, that the policy itself contained no provision on the subject of incumbrances, and that so much of the application as related to that subject was in this form: "13. Incumbrance. Is there a mortgage, trust deed, lien, or incumbrance of any kind, on property? Yes. Amount, and in whose favor? $3000; I. May. What is the entire value of property incumbered? $21,000."

Opinion of the Court.

"And the said applicant hereby covenants and agrees to and with said company that the foregoing and diagram annexed hereto is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value, ownership, title, incumbrance of all kinds, insurance and hazard of the property to be insured; and the same is hereby made a condition of the insurance, a part of the contract, and a continuing warranty on the part of assured, for term of policy, or any renewal thereof of which this survey and application form a part."

Mr. T. M. Marquett and Mr. Isham Reavis for plaintiffs in error, cited Baley v. Homestead Ins. Co., 80 N. Y. 21; Nebraska Comp. Stat. c. 77, §§ 70, 74, 138.

No counsel appeared for defendant in error.

MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.

In this case, I am instructed by the majority of the court to announce its opinion that the warranty concerning incumbrances includes only incumbrances created by the act or with the consent of the assured, and not those created by the law; and therefore the policy was not avoided by the omission to disclose the fact that "delinquent taxes" on the premises for previous years were due and unpaid, although by the statutes of Nebraska taxes are made a lien on the real estate taxed. Judgment reversed, and case remanded to the Circuit Court, with directions to render judgment for the plaintiff's upon the special verdict.

Statement of the Case.

CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 238. Argued April 19, 1888. Decided May 14, 1888.

Section 5 of the act of March 3, 1879, 20 Stat. c. 180, 355, 358, did not operate to repeal § 3962 Rev. Stat.; and when it was itself repealed by the act of June 11, 1880, 21 Stat. c. 206, 177, 178, § 3962 of the Revised Statutes remained in force against railroad companies contracting to carry the mails.

When there are two provisions of law in the Statutes relating to the same subject, effect is to be given to both, if practicable.

A statute will not operate to repeal a prior statute merely because it repeats some of the provisions of the prior act, and omits others, or adds new provisions; but in such cases the later act operates as a repeal of the former one only when it plainly appears that it was intended as a substitute for the first act.

THE case was stated by the court as follows:

The petitioner, the Chicago, Milwaukee and St. Paul Railway Company, is a corporation formed under the laws of Wisconsin, and owns and operates several lines of railway in that State, and in the States of Illinois, Iowa and Minnesota, and in the Territory of Dakota. In 1879 it entered into sundry contracts with the Post-Office Department to transport the mails of the United States over its lines, on specially designated routes, at rates fixed under the acts of Congress of March 3, 1873, June 12, 1876, and June 17, 1878. The petitioner alleges that it transported the mails upon all the routes designated in accordance with the contracts, except when prevented by the elements or other unavoidable disasters; that between the autumn of 1880 and the spring of 1883, owing to snow-blockades, floods, and other unavoidable causes, which it was impossible for the petitioner to provide against, it was prevented at various times from running its trains of cars over the routes, and consequently the mails were delayed and accumulated until the cars could be got through; but the peti

Opinion of the Court.

tioner did finally carry all the mails over the routes, and as frequently as it was possible; that the Post-Office Department deducted from the pay of the petitioner at divers times, during the period mentioned, a large sum of money, claiming a right to do so because of the failure of the petitioner to transport the mails upon the ordinary schedule time for the departure and arrival of the mails, notwithstanding the failures were owing to no want of diligence or care in the petitioner, but were owing wholly to the causes mentioned; and that such deductions amounted to $31,251.86, which sum the petitioner alleges is unjustly and unlawfully held from it, and therefore asks judgment for the amount. A demurrer to this petition, that it did not allege facts sufficient to constitute a cause of action, was interposed by the United States and sustained by the court. Judgment was accordingly entered dismissing the petition, and the petitioner appealed to this court.

Mr. J. J. Farnsworth for appellant.

Mr. Assistant Attorney General Howard for appellee. Mr. Attorney General was also on the brief.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

The deductions from the compensation claimed by the railway company for its failure to make the trips required, that is, to render the service stipulated, of which it complains, were made by the Postmaster General under § 3962 of the Revised Statutes, which is as follows:

"The Postmaster General may make deductions from the pay of contractors, for failures to perform service according to contract, and impose fines upon them for other delinquencies. He may deduct the price of the trip in all cases where the trip is not performed; and not exceeding three times the price if the failure be occasioned by the fault of the contractor or carrier." This section in terms applies to all contractors, and, standing alone, there would not be any serious contention against the authority of the Postmaster General to make the

Opinion of the Court.

deductions complained of. It is not pretended that the amounts exceeded those mentioned in the section. It is. however, insisted that the section, so far as applicable to railroad companies, was repealed by § 5 of the act of March 3, 1879, making appropriations for the service of the Post-Office Department for the fiscal year ending June 30, 1880, which provides:

"SEC. 5. That the Postmaster General shall deduct from the pay of the railroad companies, for every failure to deliver a mail within its schedule time, not less than one-half of the price of the trip, and where the trip is not performed, not less than the price of one trip, and not exceeding, in either case, the price of three trips: Provided, however, That if the failure is caused by a connecting road, then only the connecting road shall be fined. And where such failure is caused by unavoidable casualty, the Postmaster General, in his discretion, may remit the fine. And he may make deductions and impose fines for other delinquencies." 20 Stat. c. 180, 355, 358.

This latter section was repealed on the 11th of June, 1880 (21 Stat. c. 206, 177, 178); and § 12 of the Revised Statutes provides that the repeal of a repealing statute shall not revive the original act. It is, therefore, contended that there was no statute in force which authorized the deductions at the time they were made between the autumn of 1880 and the spring of 1883, during which period the alleged failures in the mail transportation occurred.

There is a brief and conclusive answer to this contention. Section 3962 of the Revised Statutes is not repealed by § 5 of the act of 1879. Section 3962 authorizes a deduction from the pay of contractors, whether they be natural persons or corporations, the price of the trip in all cases where the trip is not performed, and not exceeding three times the price if the failure be caused by the fault of the contractor or carrier. Section 5 of the act of 1879 applies only to railroad companies, and has special reference to failures of delivery within schedule time, and makes a difference between them and failures to make the trips, leaving the provision for the latter substan