231 U.S.

Opinion of the Court.

The evidence established that it is not the custom of railroads to use an automatic coupler between the engine and tender. Some roads, however, use two additional or supplemental draw-bars, called radial bars, one on each side of the main bar, while on other roads it is almost the standard practice, instead of the supplemental bars, to use chains secured to the back heads of the locomotive and hooked to the tender on each side of the center. The record does not disclose whether there were either such bars or chains connecting the engine and tender. But even if their absence may be inferred, it is not relied on as a ground of negligence.

It is further contended by plaintiff that the necessity of an automatic coupler between engine and tender is determined by the amendment of the act of March 2, 1893, c. 196, 27 Stat. 531, enacted March 2, 1903, c. 976, 32 Stat. 943. It may be necessary, it is said, under the statute of 1893, to "bring the word 'tender' within the definition of the word 'car,"" but that this "is totally unnecessary when we come to consider and apply the subsequent statutes, because here we find the word 'tender' specifically used, and used, too, in evident contradistinction to the words 'locomotives' and 'cars."" The amendment repeats the title of the prior acts, provides that their provisions "shall apply in all cases, whether or not the couplers brought together are of the same kind, make or type," and that their provisions and requirements, including automatic couplers, "shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce." But this act does not destroy the integrity of the locomotive and tender. It is entirely satisfied by requiring the automatic coupler between the tender and the cars constituting the train, that is, to the rear end of the tender. And this requirement fulfills the purpose of the statute, which, we have seen, does not regard the

strength of the connections between the cars, even if it may be supposed that an automatic coupler is the stronger, but does regard safety in making and unmaking the connections. This being kept in mind, the construction of the statute is not difficult. And the construction of the statute is the main concern. If it is not mandatory, as we think it is not, of an automatic coupler between the engine and the tender, the contentions of plaintiff are without foundation. We need not refer to them with further detail except to say that the custom of the railroads could not, of course, justify a violation of the statute, but that custom, having the acquiescence of the Interstate Commerce Commission, is persuasive of the meaning of the statute.

Under the various safety appliance acts the Commission is charged with the duty of prosecuting violations of them which come to its knowledge, and by the Sundry Civil Appropriation Act of June 28, 1902, c. 1301, 32 Stat. 419, 444, the Commission was authorized to employ inspectors to execute and enforce the requirements of the acts. It is of special significance, therefore, that in its order under the act of April 14, 1910, c. 160, 36 Stat. 298, which was supplemental of the other acts, designating the number, dimensions, location and manner of application of certain appliances, it provided as follows: "Couplers: Locomotives shall be equipped with automatic couplers at rear of tender and front of locomotive." That is, couplers were required where danger might be incurred by the employés.

The state decisions cited by plaintiff to sustain her definition of a car, we do not think it is necessary to review. They are all cited in Johnson v. Southern Pacific Co., supra. They applied the principle which we have applied and construed the statutes passed on according to the objects which the statutes were intended to secure. Judgment affirmed.

No. 13. Submitted October 30, 1913.-Decided January 5, 1914.

Under the provision in the Indian Appropriation Act of June 21, 1906, c. 3504, 34 Stat. 325, 366, making it unlawful for traders on the Osage Indian Reservation to give credit to any individual Indian head of a family for any amount exceeding seventy-five per centum of his next quarterly annuity, the burden of proof is on the person taking and attempting to enforce a note to bring his claim within the permission of the statute.

The order of pleading does not always determine the burden of proof. While generally the payee of a note need not allege consideration in declaring upon it, if there is conflicting evidence he has the burden of proof.

Quare, whether the fact that a note is very largely in excess of the amount permitted to be given by statute does not constitute a prima facie case against the holder even if the burden were not upon him.

25 Oklahoma, 160, reversed.

THE facts, which involve the construction and application of the act of June 21, 1906, making it unlawful for traders on the Osage Reservation to give credit beyond a certain amount to Indians, are stated in the opinion.

Mr. Charles H. Merillat for plaintiff in error.

No appearance for defendant in error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action on a promissory note for $922.50 dated September 1, 1906, against an Osage Indian residing on

the Osage Reservation. By the Indian Appropriation Act of June 21, 1906, c. 3504, 34 Stat. 325, 366, it was made "unlawful hereafter for the traders upon the Osage Indian Reservation to give credit to any individual Indian, head of a family, to an amount greater than seventyfive per centum of the next quarterly annuity to which such Indian will be entitled." This amended the previous act of March 3, 1901, c. 832, 31 Stat. 1058, 1065, by which the limit was sixty per centum. The defendant demurred and the demurrer having been overruled answered that the note was given for a debt in excess of seventy-five per cent. of the next quarterly annuity due to him after the credit was extended and that the note exceeded that amount. It appeared in evidence that the plaintiff, the defendant in error, was a licensed trader with the Indians and the defendant testified that he received as his quarterly payment forty-six dollars for each of the seven members of his family, which would be $322-in any event much less than $922.50. It was not shown when the credits were given. The plaintiff demurred to the evidence and the demurrer was sustained by both courts below. 25 Oklahoma, 160.

The Supreme Court of the State put its decision on the burden of proof, following the analogy of illegal consideration. We hardly need consider whether proof that the note was so largely in excess of the percentage then allowable, especially when coupled with the improbability that the defendant ever had received in the past an annuity so much larger as to warrant such a credit, did not constitute at least a prima facie case. The court is of opinion that, in view of the policy of the statute, the relative position of the parties and the protection necessarily extended to Indians, the burden was on the plaintiff not only to bring his' claim within the permission of the statute in fact, as he was warned by its letter that he must, but also to prove that he had done so, in case of dispute. He occu

pied the position of advantage and that rather than formal logic determines the burden of proof. It may be that it lay on the defendant to plead the defense. That is a question of convenience. Burnet v. Desmornes, 226 U. S. 145, 147. But the order of pleading does not always determine the burden of proof. Generally it is not considered necessary for the payee of a promissory note to allege a consideration in declaring upon it, but if there is conflicting evidence he has the burden of proof. Delano v. Bartlett, 6 Cush. 364; Burnham v. Allen, 1 Gray, 496. Judgment reversed.

TRIMBLE v. CITY OF SEATTLE.

ERROR TO THE SUPREME COURT OF THE STATE OF

WASHINGTON.

No. 108. Argued December 9, 1913.-Decided January 5, 1914.

The state court having declared the policy of the State as excluding a constructive obligation to indemnify against the exercise of the sovereign power of taxation from leases given by the State, this court will not overthrow it.

In ordinary cases of leased property, whether the lessor or lessee shall bear the burden of taxation is not a matter of public concern, but an obligation not to tax property leased by the State is a restriction of public import not lightly to be imposed.

In this case held, that the imposing of assessments for benefits on property in Seattle leased by the State of Washington is not an unconstitutional impairment of an implied covenant in the lease that the lessor will pay assessments.

Whether landlords or tenants shall pay taxes and assessments on leased property is a matter of private arrangement, and compelling tenants of the State to pay them does not deny them equal protection of the law because there may be a practice the other way in private leases. Quare, whether exemption from taxation would not create a favored class and thus deny equal protection to other property owners.