The opinion of the Court was delivered by

This action was brought for five dollars and thirty cents, the value of one cheese with freight paid thereon, shipped by Leman Brothers from New York, and' consigned to the plaintiff at Walterboro, S. C., and the statutory penalty of fifty dollars. According to the plaintiff’s evidence, all the rest of the goods with which the cheese was shipped were safely delivered by the defendant, Atlantic Coast Line Railroad Company, and under the case of Bradley v. Ry. Co., 77 S. C., 317, this gave rise to the presumption that thecheesewas lost on the defendant’s railroad. The defendant’s freight agent at Charleston testified, however, *168 the cheese was short when 'the lot of goods came to the defendant railroad from the Clyde Riñe Steamship Company From this testimony the magistrate found that the cheese never came into the possession of the defendant from the connecting carrier; but he nevertheless held the defendant liable for the value of the cheese, freight and penalty, and gave judgment accordingly.

In appealing to the Circuit Court defendant alleged error in holding it liable for goods not lost on its own line when it had made proof of its inability to trace the loss after due diligence. But the appeal to this Court from the decision of the Circuit Court is on the sole ground that the penalty act of February, 1903 (24 Stat., 81), is unconstitutional. As that statute has been recently considered and' held to be constitutional in Charles v. R. R. Co., ante, 36, the appeal must fail.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.