sire to give our shipowners a chance to compete with those of Eurppe, there was in some sense as intent to limit liability to the venture, but such a statement gives little help in deciding where the line of limitation should be drawn. No one, we presume, would contend that other unattached vessels, belonging if you like to the same owner, and co-operating to the same result with the one in fault, would have to be surrendered. Thompson Towing & Wrecking Association v. McGregor, 207 Fed. 209, 212-214, 124 C. C. A. 479; The Sunbeam, 195 Fed. 468, 470, 115 C. C. A. 370; The W. G. Mason, 142 Fed. 913, 919, 74 C. C. A. 83. The notion as applicable to a collision case seems to us to be that if you surrender the offending vessel you are free, just as it was said by a judge in the time of Edward III, "If my dog kills your sheep and I freshly after the fact tender you the dog you are without recourse against me." Fitz. Abr., Barre, 290. The (40 Sup.Ct.) *54 words of the *statute are: "The liability of the owner of any vessel for any injury by collision shall in no case exceed the value of the interest of such owner in such vessel." Prior to Act July 28, 1916, with the exception of certain roads aided by land grants, railroads were not required by law to carry the mails, and a road which voluntarily accepted and performed the service with knowledge of what the United States intended to pay under Rev. St. § 4002 (Comp. St. § 7483), as amended, cannot later claim an implied contract for a greater sum; the possibility that by failing to carry the road would incur the hostility of those along its lines not amounting to compulsion by the United States, forming the basis of a justiciable claim against them for taking property. Mr. Justice Brandeis dissenting. Appeal from the Court of Claims. Suit by the New York, New Haven & Hartford Company against the United States. From a judgment dismissing the petition on demurrer (53 Ct. Cl. 222), petitioner appeals. Affirmed. Messrs. Edward G. Buckland, of New Haven, Conn., and S. S. Ashbaugh, of Washington, D. C., for appellant. Mr. Assistant Attorney General Brown, for the United States. The literal meaning of the sentence is reinforced by the words “in no case." For clearly the liability would be made to exceed the interest of the owner "in such vessel" if you said frankly, In some cases we propose to count other vessels in although they are not "such vessel"; and it comes to the same thing when you profess a formal compliance with the words but reach the result by artifically construing "such vessel" to include other vessels if only they are tied to it. Earlier cases in the Second Circuit had disposed of the question there, and those in other circuits for the most part if not wholly are reconcilable with them. We are of opinion that the decision was right. The Transfer No. 21, 248 Fed. 459, 160 C. C. A. 469; The W. G. Mason, 142 Fed. 913, 74 C. C. A. 83; The Erie Light-mails in reliance upon section 4002, Revised Appellant sued the United States to recover the difference between amounts received through the Post Office Department and what it claims should have been paid for its services in carrying the mails during a series of years, ending June 30, 1914. The demand is based upon implied contracts alleged to arise from the following circumstances: First. Acceptance and transportation of the er 108 (D. C.) 250 Fed. 490, 497, 498; Van Eyken v. Erie R. Co. (D. C.) 117 Fed. 712, 717. Decree affirmed. Statutes (Comp. St. § 7483), as amended. This directs payment of specified sums per mile per annum according to weights; and the claim is that because the Post Office Department improperly construed and applied it, appellant received much less than it should have. Second. Acceptance and trans 126 *Mr. Justice McKEYNOLDS delivered the opinion of the Court. (251 U. S. 123) NEW YORK, N. H. & H. R. CO. v. UNITED portation of the mails under orders and coercion of the Post Office Department, followed by failure to allow reasonable compensa STATES. (Argued May 2, 1919. Decided Dec. 8, 1919.) tion therefor. Appellant claims its property was taken for public use and adequate compensation must be paid. No. 74. 1. POST OFFICE 21(4)-TIME FOR WEIGHING MAIL ΤΟ DETERMINE COMPENSATION DUE RAILROAD. [1] Concerning the challenged interpretation and application of section 4002, Revised Statutes, resulting in payments during each four-year term upon the basis of weights 127 Payments by the United States to a mailcarrying railroad pursuant to Rev. St. § 4002 (Comp. St. § 7483), during each four-year term, on the basis of weight taken immediately prior taken *immediately prior to the beginning of the same, instead of annually, it suffices to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes say that the action taken accords with prior [ 3. CONSTITUTIONAL LAW 305-CONSTITU TIONALITY OF PROVISION MAKING NEGLI- practice followed for many years, the letter The Court of Claims (53 Ct. Cl. 222) dismissed the petition upon demurrer, and its judgment is Affirmed. Mr. Justice BRANDEIS dissents. (251 U. S. 54) CHICAGO, R. I. & P. R. CO. v. COLE. Const. Okl. art. 23, § 6, providing that the defense of contributory negligence or assumption of risk shall in all cases be a question of fact, and at all times left to the jury, held not violative of Const. U. S. Amend. 14, in its application to a railroad whose train killed plaintiff's decedent when he stepped on its track as a train was approaching in full view; the railroad not being entitled to complain that its chance to prevail on a certain ground was diminished, when the ground might have been altogether removed. 2. JURY 11(5)-FEDERAL CONSTITUTION NO LIMITATION ON STATE AS TO RIGHTS TO JURY TRIAL. A state is not compelled by the federal Constitution or its amendments to maintain the familiar line between the functions of the jury and those of the court, but may do away with the jury altogether, modify its Constitution or the requirements of a verdict, or the procedure before the jury, and may confer larger powers on the jury than those generally prevailing. In Error to the Supreme Court of the State of Oklahoma. Action by Eva Roberts Cole, as administratrix of the estate of A. W. Roberts, deceased, for herself and others, against the Chicago, Rock Island & Pacific Railway Company. To review a judgment for plaintiff, defendant brought error to the Supreme Court of Oklahoma, which affirmed, and defendant brings error. Judgment affirmed. *55 *Mr. Justice HOLMES delivered the opinion of the Court. This is an action brought by the defendant in error for knocking down and killing her intestate, Roberts. He stepped upon the railroad track when a train was approaching in full view and was killed. It may be assumed, as the State court assumed, that, if (Submitted on Motion to Dismiss or Affirm the question were open for a ruling of law, Nov. 17, 1919. Decided Dec. 8, 1919.) it would be ruled that the plaintiff could not recover. But the Oklahoma Constitution provides that "the defense of contributory negligence or of assumption of risk shall, in No. 290. RIGHT TO DEFENSE OF CONTRIBUTORY NEGLI- A railroad company, which ran over and killed plaintiff's intestate standing on its track, had no vested right to the defense of contributory negligence. 1. CONSTITUTIONAL LAW 105-No VESTED all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." Article 23, § 6. The case was left to the jury and they found a verdict for the plaintiff. Judgment was entered for her and was affirmed on error by the Supreme Court of the State, which held that the provision applied to the case and that when so applied it did not contravene the Fourteenth Amendment of the Constitution of the United States. Messrs. R. J. Roberts, of El Reno, Okl., and Thomas P. Littlepage and Sidney F. Taliaferro, both of Washington, D. C., for plaintiff in error. Messrs. W. A. Ledbetter, of Oklahoma City, Okl., and H. L. Stuart, of Gainesville, Tex., for defendant in error. [1-3] The State Constitution was in force when the death occurred and therefore the defendant had only such right to the defense of contributory negligence as that Constitution allowed. The argument that the Railroad Company had a vested right to that defense is disposed of by the decisions that it may be taken away altogether. Arizona EmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes . (40 Sup.Ct.) ployers' Liability Cases, 250 U. S. 400, 39 | pation of the field by Congress, which excluded Sup. Ct. 553, 63 L. Ed. 1058; Bowersock v. state action and rendered valid a telegraph Smith, 243 U. S. 29, 34, 37 Sup. Ct. 371, 61 L. company's contract limiting to a refund of the Ed. 572. It is said that legislation cannot price for transmission any liability on account of an unrepeated message, despite the state's prohibition of a contract against liability for negligence. *56 change the standard of conduct, which is · matter of law in its nature into matter of fact, and this may be conceded; but the material element in the constitutional enact ment is not that it called contributory negligence fact but that it left it wholly to the jury. There is nothing, however, in the Constitution of the United States or its Amendments that requires a State to maintain the line with which we are familiar between the functions of the jury and those of the Court. It may do away with the jury altogether, Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678; modify its constitution, Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597; the requirements of a verdict, Minne Messrs. Ellis B. Cooper and J. N. Flowers, apolis & St. Louis R. R. Co. v. Bombolis, 241 both of Jackson, Miss., for petitioner. Mr. Wm. D. Anderson, of Tupelo, Miss., for respondent. U. S. 211, 36 Sup. Ct. 595, 60 L. Ed. 961, L. On Writ of Certiorari to the Supreme Court of the State of Mississippi. Action by the Warren-Godwin Lumber Company against the Postal Telegraph-Cable Company. From a judgment for defendant, plaintiff appealed to the Supreme Court of Mississippi, which reversed, and entered judgment for plaintiff (116 Miss. 660, 77 South. 601), and defendant brings certiorari. Judgment of the Supreme Court of Mississippi reversed, and cause remanded for further proceedings. Mr. Chief Justice WHITE delivered the opinion of the Court. In Primrose v. Western Union Telegraph Company, 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883, the court passed upon the validity of a contract made by a telegraph company with the sender of a message by which, in case the message was missent, the liability of the company was limited to a refunding of the price paid for sending it, unless, as a means of guarding against mistake, the repeating of the message from the office to which it was directed to the office of origin Was secured by the payment of an additional sum. It was held that such a contract was 28 not one exempting the company from *liability for its negligence, but was merely a reasonable condition appropriately adjusting the charge for the service rendered to the duty and responsibility exacted for its performance. Such a contract was therefore decided to be valid and the right to recover for error in transmitting a message which was sent subject to it was accordingly limited. In Western Union Telegraph Company v. Showers, 112 Miss. 411, 73 South. 276, the Supreme Court of that state was called upon to consider the validity of a contract by a telegraph company limiting its responsibility for missending an unrepeated message essentially like the contract which was considered and upheld in the Primrose Case. The court decided that as the Act of Congress of June 18, 1910, c. 309, 36 Stat. 539, 545, had operated to exert the power of Congress over telegraph companies as to their interstate business and contracts, Congress had taken possession of the field and thus excluded state legislation and hence such a contract was valid and enforcible in accord For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *30 ance with the rule laid down in the Primrose U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 Case. In holding this, however, the court L. R. A. (N. S.) 257; Western Union Telepointed out that but for the act of Congress graph Company v. Brown, 234 U. S. 542, 34 a different rule would apply, as under the state law such a contract was invalid because it was a stipulation by a carrier limiting its liability for its negligence. In Dickerson v. Western Union Telegraph Company, 114 Miss. 115, 74 South. 779, the validity of a like contract by a telegraph company for the sending of an unrepeated message once again arose for consideration. In passing upon it the court declared that the ruling previously made in the Showers Case, as to the operation of the act of Congress of 1910, was erroneous. Coming therefore anew to reconsider that subject, it was held that the act of Congress of 1910 had not extended the power of Congress over the rates of telegraph companies for interstate business and the contracts made by them as to such Sup. Ct. 955, 58 L. Ed. 1457), but content *ourselves with saying that we are of opinion that the effect which was given to them was a mistaken one. We come at once therefore to state briefly the reasons why we conclude that the court below mistakenly limited the act of Congress of 1910 and why therefore its judgment was erroneous. In the first place, as it is apparent on the face of the act of 1910 that it was intended to control telegraph companies by the act to regulate commerce, we think it clear that the act of 1910 was designed to and did subject such companies as to their interstate business to the rule of equality and uniformity of rates which it was manifestly the dominant purpose of the act to regulate commerce to establish, a purpose which would be wholly destroyed if, as held by the court below, the subject, and hence the *Showers Case, in so validity of contracts made by telegraph comfar as it held to the contrary, was overruled. panies as to their interstate commerce busiThus removing the contract from the opera-ness continued to be subjected to the control tion of the national law and bringing it of divergent and it may be conflicting local under the state law, the court held that the contract was void and not susceptible of being enforced because it was a mere contract exempting the telegraph company from the consequences of its negligence. ⭑29 The case before us involving the extent of the liability of the Telegraph Company for an unrepeated interstate message governed by a contract like those considered in the previous cases, was decided by a state circuit court after the decision in the Showers Case and before the overruling of that case by the Dickerson Case. Presumably therefore the court, because of the Showers decision upheld the validity of the contract and accordingly limited the recovery. The appeal which took the case to the court below, however, was there heard after the decision in the Dickerson Case. In view of that situation the court below in disposing of the case expressly declared that the only issue which was open was the correctness of the ruling in the Dickerson Case, limiting the operation and effect of the act of Congress of June 18, 1910. Disposing of that issue, the ruling in the Dickerson Case was reiterated and the contract, although it concerned the transmission of an interstate message, was declared not affected by the act of Congress and to be solely controlled by the state law and to be therefore void. That subject, presents then, the only federal question, and indeed the only question in the case. For the sake of brevity, we do not stop to review the cases which perturbed the mind of the court below in the Dickerson Case as to the correctness of its ruling in the Showers Case (Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268; Western Union Telegraph Company v. Crovo, 220 U. S. 346, 31 Sup. Ct. 399, 55 L. Ed. 498; Adams Express Company v. Croninger, 226 laws. In the second place, as in terms the act empowered telegraph companies to establish reasonable rates, subject to the control which the act to regulate commerce exerted, it follows that the power thus given, limited of course by such control, carried with it the primary authority to provide a rate for unrepeated telegrams and the right to fix a reasonable limitation of responsibility where such rate was charged, since as pointed out in the Primrose Case the right to contract on such subject was embraced within the grant of the primary rate-making power. In the third place, as the act expressly provided that the telegraph, telephone or cable messages to which it related may be "classified into day, night, repeated, unrepeated, letter, commercial, press, government and such other classes as are just and reasonable and different rates may be charged for the different classes of messages," it would seem unmistakably to draw under the federal *31 control the very power which the construction given below to the act necessarily excluded from such control. Indeed, the conclusive force of this view is made additionally cogent when it is considered that as pointed out by the Interstate Commerce Commission (Clay County Produce Company v. Western Union Telegraph Company, 44 Interst. Com. R. 670), from the very inception of the telegraph business, or at least for a period of 40 years before 1910, the unrepeated message was one sent under a limited rate and subject to a limited responsibility of the character of the one here in contest. But we need pursue the subject no further, since, if not technically authoritatively controlled, it is in reason persuasively settled by the decision of the Interstate Commerce Com (40 Sup.Ct.) CONSTITUTIONAL LAW 303 - ENFORCE MENT OF RATE FOR CARRIER BY PENALTIES Where a common carrier is afforded op- mission in dealing in the case above cited | of law, where no adequate opportunity is affordwith the very question here under considera- ed the carrier to test safely, in an appropriate tion as the result of the power conferred by judicial proceeding, the validity of the ratethe act of Congress of 1910; by the careful that is, to determine whether it is confiscatory opinion of the Circuit Court of Appeals of the or otherwise before any liability for the penalties attaches. Eighth Circuit dealing with the same subject (Gardiner v. Western Union Telegraph Com-2. pany, 231 Fed. 405, 145 C. C. A. 399); and by the numerous and conclusive opinions of state courts of last resort which in considering the act of 1910 from various points of view reached the conclusion that that act was an exertion by Congress of its authority to bring under federal control the interstate business of telegraph companies and therefor was an occupation of the field by Congress which excluded state action (Western Union Tel. Co. v. Bank of Spencer, 53 Okl. 398, 156 Pac. 1175; Haskell Implement Co. v. Postal Tel.-Cable Co., 114 Me. 277, 96 Atl. 219; Western Union Tel. Co. v. Bilisoly, 116 Va. 562, 82 S. E. 91; Bailey v. Western Union Tel. Co., 97 Kan. 619, 156 Pac. 716; Durre v. Western Tel. Co., 165 Wis. 190, 161 N. W. 755; Western Union Tel. Co. v. Schade, 137 Tenn. 214, 192 S. W. 924; Meadows v. Postal Tel.-Cable Co., 173 N. C. 240, 91 S. E. 1009; Norris v. Western Union Tel. Co., 174 N. C. 92, 93 S. E. 465; Bateman v. Western Union Tel. Co., 174 N. C. 97, 93 S. E. 467, L. R. A. 1918A, 803; Western Union Tel. Co. v. Lee, *32 174 *Ky. 210, 192 S. W. 70, Ann. Cas. 1918C, 1026; Western Union Tel. Co. v. Foster, 224 Mass. 365, 113 N. E. 192; Western Union Tel. Co. v. Hawkins, 14 Ala. App. 295, 70 South. 12). It is indeed true that several state courts of last resort have expressed conclusions concerning the act of Congress applied by the court below in this case. But we do not stop to review or refer to them as we are of opinion that the error in the reasoning upon which they proceed is pointed out by what we have said and by the authorities to which we have just referred. It follows that the judgment below was erroneous, and it must be reversed, and the cause remanded for further proceedings, not inconsistent with this opinion. And it is so ordered. Mr. Justice PITNEY dissents. (251 U. S. 63) ST. LOUIS, I. M. & S. RY. CO. v. WIL- METHOD FOR CARRIER TO SECURE RELIEF FROM that, if a common carrier really regarded as 4. CARRIERS 20(4)-PENAL CHARACTER OF RATE ENFORCEMENT STATUTE. A state statute subjecting a common carrier, for every offense of demanding or collecting a greater rate than prescribed, to a penalty of not less than $50 nor more than $300 and costs, is essentially penal in such provision, though the penalty goes to the aggrieved passenger, and is to be enforced by private suit, being intended primarily to punish the carrier for taking more than the prescribed rate. 5. CONSTITUTIONAL LAW 303-RECOVERY OF PENALTY BY PASSENGER FROM RATE BREAKING CARRIER. It is not contrary to due process of law that a state statute, intended to enforce adherence to prescribed rates by common carriers, provides that a penalty recoverable by private suit shall go to the aggrieved passenger, and not the state. 6. CONSTITUTIONAL LAW 303 PENALTY FOR RATE BREAKING BY CARRIER NOT CON- To avoid violation of the constitutional requirement of due process, it is not necessary that a state statute, giving an aggrieved passenger the right to recover by private suit a penalty from a carrier which has not adhered to a prescribed rate, should confine or proportion the penalty to the passenger's loss or damages. It being imposed as punishment for a violation of public law, the Legislature may adjust its (Argued Nov. 11, 1919. Decided Dec. 8, 1919.) amount to the public wrong rather than the pri No. 66. 1. CONSTITUTIONAL LAW 303-IMPOSITION OF PENALTY ON CARRIER TO ENFORCE RATE AS VIOLATIVE OF DUE PROCESS. The imposition of severe penalties upon a common carrier as a means of enforcing a prescribed rate is in contravention of due process vate injury. 7. CONSTITUTIONAL LAW 303-PENALTY FOR VIOLATION OF STATE STATUTE CONSTITUTING DENIAL OF DUE PROCESS. Though the Fourteenth Amendment of the federal Constitution in its due process of law clause limits the power of the states to pre For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |