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 *30 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 destroyeu 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 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. 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 accordIn the third place, as the act expressly proingly limited the recovery. The appeal which vided that the telegraph, telephone or cable took the case to the court below, however, messages to which it related may be "classiwas there heard after the decision in the fied into day, night, repeated, unrepeated, Dickerson Case. In view of that situation letter, commercial, press, government and the court below in disposing of the case ex- such other classes as are just and reasonpressly declared that the only issue which able and different rates may be charged for was open was the correctness of the ruling the different classes of messages," it would 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 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.) alties attaches. 2. CONSTITUTIONAL LAW 303 · ENFORCE MENT OF RATE FOR CARRIER BY PENALTIES Where a common carrier is afforded opportunity to test the validity of a prescribed rate in an appropriate judicial proceeding before any liability for penalties attaches, and the rate is adjudged valid, or the carrier fails ble for the state, so far as due process is conto avail itself of the opportunity, it is permissicerned, to enforce adherence to the rate by imposing substantial penalties for deviation. EVIDENCE 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 penEighth Circuit dealing with the same subject (Gardiner v. Western Union Telegraph Company, 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- 3. 20(2)—JUDICIAL NOTICE OF 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 BATE 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 CONTRARY TO DUE PROCESS. 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 vate injury. (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 FOR VIOLATION OF STATE STATUTE CONSTITUT- 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 scribe penalties for violations of their laws, the 8. CARRIERS 2-CONSTITUTIONAL LAW provision for the penalty was repugnant to the due process of law clause of the Fourteenth Amendment; but the Supreme Court of the state sustained the provision and affirmed the judgments. 131 Ark. 442, 199 S. W. 376. To obtain a review of that decision the company prosecutes this writ of error. The grounds upon which the provision is said to contravene due process of law are, first, that the penalty is "so severe as to deprive the carrier of the right to resort to the courts to test the validity" of the rate "arbitrary and unreasonable, and not proportionate to the actual damages sustained." Laws Ark. 1887, p. 227 (Kirby's Dig. 1904, § 6620), and Laws 1915, p. 365 (Kirby & Castle's Dig. 1916, § 8094), subjecting any railroad company, for every offense of demanding or collecting a greater compensation than pre-prescribed, and, second, that the penalty is scribed for the transportation of passengers, to a penalty of not less than $50 nor more than $300 and costs of suit, recoverable by the aggrieved passenger, held not violative of the due process clause of the Fourteenth Amendment to the federal Constitution; the penalty not being so severe and oppressive as to be unreasonable. Mr. Justice McReynolds dissents. [1] It is true that the imposition of severe penalties as a means of enforcing a rate, such as was prescribed in this instance, is in contravention of due process of law, where no adequate opportunity is afforded the carrier for safely testing, in an appropriate judicial *65 In Error to the Supreme Court of the State whether it is confiscatory or otherwise-beproceeding, the validity of the rate-that is, of Arkansas. Consolidated actions by Dicksey Williams and Lucy Williams against the St. Louis, Iron Mountain & Southern Railway Company. From judgments for plaintiffs, defendant appealed to the Supreme Court of Arkansas, which affirmed (131 Ark. 442, 199 S. W. 376), and defendant brings error. Affirmed. Messrs. Robert E. Wiley and Edgar B. Kinsworthy, both of Little Rock, Ark., for plaintiff in error. Mr. Justice VAN DEVANTER delivered the opinion of the Court. By a statute of Arkansas, regulating rates for the transportation of passengers between 64 fore any liability for the penalties attaches. The reasons why this is so are set forth fully and plainly in several recent decisions and need not be repeated now. Ex parte Young, 209 U. S. 123, 147, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Willcox v. Consolidated Gas Co., 212 U. S. 19, 53, 29 Sup. Ct. 192, 53 L. Ed. 382, 48 L. R. A. (N. S.) 1134, 15 Ann. Cas. 1034; Missouri Pacific Ry. Co. v. Nebraska, 217 U. S. 196, 207, 208, 30 Sup. Ct. 461, 54 L. Ed. 727, 18 Ann. Cas. 989; Missouri Pacific Ry. Co. v. Tucker, 230 U. S. 340, 33 Sup. Ct. 961, 57 L. Ed. 1507: Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 659, et seq., 35 Sup. Ct. 214, 59 L. Ed. 405. [2] And it also is true that where such an opportunity is afforded and the rate is adjudged valid, or the carrier fails to avail it self of the opportunity, it then is admissible, so far as due process of law is concerned, for the state to enforce adherence to the rate by imposing substantial penalties for deviations from it. Wadley Southern Ry. Co. v. Georgia, supra, 235 U. S. p. 667 et seq., 35 Sup. Ct. 214, 59 L. Ed. 405; Gulf, Colorado & Santa Fé Ry. Co. v. Texas, 246 U. S. 58, 62, 38 Sup. Ct. points within the state, any railroad compa- [3] Here it does not appear that the carrier In June, 1915, a company operating a line had not been afforded an adequate opportuniof railroad within the state demanded and ty for safely testing the validity of the rate, collected 66 cents more than the prescribed or that its deviation therefrom proceeded fare from each of two sisters carried over from any belief that the rate was invalid. part of its line when returning to their home On the contrary, it is practically concededfrom a school commencement elsewhere in and we judicially know-that if the carrier the state; and in suits separately brought for really regarded the rate as confiscatory, the the purpose, and afterwards consolidated, way was open to secure a determination of these passengers obtained judgments against that question by a suit in equity against the the company for the overcharge, a penalty of Railroad Commission of the state, during the seventy-five dollars and costs of suit, includ- pendency of which the operation of the penaling an attorney's fee of twenty-five dollars. ty provision could have been suspended by inThe company appealed, asserting that the junction. Wadley Southern Ry. Co. v. Geor For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) gia, supra. See, also, Allen v. St. Louis, Iron, reasonable. Coffey v. Harlan County, 204 U. Mountain & Southern Ry. Co., 230 U. S. 553, S. 659, 662, 27 Sup. Ct. 305, 51 L. Ed. 666; 33 Sup. Ct. 1030, 57 L. Ed. 1625; Rowland v. Seaboard Air Line Ry. v. Seegers, 207 U. S. St. Louis & San Francisco R. R. Co., 244 U. 73, 78, 28 Sup. Ct. 28, 52 L. Ed. 108; WatersS. 106, 37 Sup. Ct. 577, 61 L. Ed. 1022; St. Pierce Oil Co. v. Texas, 212 U. S. 86, 111, 29 Louis, Iron Mountain & Southern Ry. Co. Sup. Ct. 220, 53 L. Ed. 417; Collins v. Johnv. McKnight, 244 U. S. 368, 37 Sup. Ct. ston, 237 U. S. 502, 510, 35 Sup. Ct. 649, 59 L. 611, 61 L. Ed. 1200. And the record shows Ed. 1071. that at the trial the carrier not only did not raise any question about the correct fare, but proposed and secured an instruction to the jury wherein the prescribed rate was recog-prone to adhere uniformly to rates lawfully prenized as controlling. #66 *[4-6] It therefore is plain that the first branch of the company's contention cannot prevail. The second branch is more strongly urged, and we now turn to it. The provision assailed is essentially penal, because primarily intended to punish the carrier for taking more than the prescribed rate. Railway Co. v. Gill, 54 Ark. 101, 106, 15 S. W. 18, 11 L. R. A. 452; St. Louis, Iron Mountain & Southern Ry. Co. v. Waldrop, 93 Ark. 42, 45, 123 S. W. 778. True, the penalty goes to the aggrieved passenger and not the state, and is to be enforced by a private and not a public suit. But this is not contrary to due process of law; for, as is said in Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512, 523, 6 Sup. Ct. 110, 114 (29 L. Ed. 463), "the power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party, or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion." Nor does giving the pen Of this penalty and the need for it the Supreme Court of the State says: "It is commonly known that carriers are not scribed and it is necessary that deviation from such rates be discouraged and prohibited by adequate liabilities and penalties, and we regard the penalties prescribed as no more than reasonable and adequate to accomplish the purpose of the law and remedy the evil intended to be reached." Chicago, Rock Island & Pacific Ry. Co. v. Davis, 114 Ark. 519, 525, 170 S. W. 245, 246. [8] When the penalty is contrasted with the overcharge possible in any instance it of course seems large, but, as we have said, its validity is not to be tested in that way. When it is considered with due regard for the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to established passenger rates, we think it properly cannot be said to be so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable. Judgment affirmed. Mr. Justice McREYNOLDS dissents. ING CO. et al. (251 U. S. 104) alty to the aggrieved passenger require that OKLAHOMA RY. CO. v. SEVERNS PAVit be confined or proportioned to his loss or damages; for, as it is imposed as a punishment for the violation of a public law, the (Argued Nov. 19 and 20, 1919. Decided Dec. 8, Legislature may adjust its amount to the public wrong rather than the private injury, just as if it were going to the state. See Marvin v. Trout, 199 U. S. 212, 225, 26 Sup. Ct. 31, 50 L. Ed. 157. The ultimate question is whether a penalty of not less than fifty dollars and not more than three hundred dollars for the offense in question can be said to bring the provision prescribing it into conflict with the due process of law clause of the Fourteenth Amend a 1919.) No. 106. 1. MUNICIPAL CORPORATIONS 514(12) PRESERVATION OF STREET RAILWAY'S RIGHT TO HEARING ON ASSESSMENT OF PROPERTY. Where a strip of land along the center of boulevard was dedicated to a street railway by the owners, and an assessment for its proportionate part of the cost of paving was erroneously made against the railway, instead of the property, judgment in proceedings by the city and paving contractor to procure reassess[7] That this clause places a limitation up-ment, directing a reassessment against the land on the power of the states to prescribe penalties for violations of their laws has been fully recognized, but always with the express or tacit qualification that the states still possess a wide latitude of discretion in the matter, and that their enactments transcend the lim*67 ment. itself, will be modified and corrected to preserve CORPORATIONS 434(6) FRANCHISE PROVISIONS OF STREET RAILWAY NOT APPLICABLE TO DEFEAT ASSESSMENT FOR PAVING COST. itation only where the penalty *prescribed is Terms in original franchise granted by Oklaso severe and oppressive as to be wholly dis-homa City to a street railway, requiring it, unproportioned to the offense and obviously un- der given conditions, to pave or pay for paving For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes certain portions of occupied streets, held not applicable, where a strip of land through the center of a boulevard has been dedicated by the owners to the railway's use, and so has become its property, to defeat assessment of a fair share of the cost of the improvement to the land itself owned by the railway. In Error to the Supreme Court of the State of Oklahoma. Action by the Severns Paving Company and the City of Oklahoma City against the Oklahoma Railway Company. To review a judgment for the Paving Company, defendant Railway Company brought error to the Supreme Court of Oklahoma, which affirmed (170 Pac. 216), and the Railway Company brings error. Modified and affirmed. company. Thereafter, the city and the Severns Company, which had put down the paving, procured from the district court of Oklahoma county a mandamus directing a reassessment against the land itself, but a hearing upon objections thereto was not specifically provided for. [1] The Supreme Court of the state (170 Pac. 216) declared: *107 "The fee title to the strip of land in question *here appears to be in the railway company. * ** Its right is not merely an intangible privilege or an easement, but under the terms of the dedication is a fee simple title. * * The dominion and control of the strip of land in question here is not in the city authorities. If the street should be vacated by the city authorities, this private right-of-way would not revert to the abutting owners, but would continue to be the property of the railway company. The company took the fee from the original Mr. D. A. Richardson, of Oklahoma City, grantors by the dedication before the abutting Okl., for defendants in error. Messrs. John B. Dudley, Henry G. Snyder, and Henry E. Asp, all of Oklahoma City, Okl., for plaintiff in error. *106 owners acquired their titles." It then held the land was subject to as*Mr. Justice McREYNOLDS delivered the sessment according to benefits resulting from opinion of the Court. the paving, and— "that when the commissioners proceed in obediproperty of the railway company an opportunity will be given to the company to be heard and to complain or object to the amount of the assessment." ence to the decree of the court to reassess the In 1909 the owners platted Linwood Place, adjacent to Oklahoma City, for building lots, streets, etc. To procure extension of a street car line therein, they dedicated a strip forty feet in width, lying along the center of what is now known as Linwood Boulevard, to plaintiff in error's predecessor, "its successors and assigns, with a like effect as though Nevertheless, it ordered an affirmance of deeded and conveyed to said company in fee the judgment of the trial court, without simple by separate deed," on condition, how-more, and by so doing left in serious doubt ever, that the property should be subject to reasonable police regulations, that the grantee should construct crossings over the tracks and also put down curbing and pave the crossings whenever the boulevard itself should be paved. Subordinate to above grant the streets as shown on the plat were dedicated to the public for ordinary purposes of travel. Afterwards car tracks were laid in the center of the forty-foot strip and the corporate limits of Oklahoma City were extend-given conditions, to pave or pay for paving ed to include Linwood Place. In order to provide funds for paving the public roadways along Linwood Boulevard, the city undertook in 1910 to lay a tax upon the adjacent property, and directed that it be apportioned according to benefits. The board of commissioners apportioned to the central strip as its proper share of the expenses, $12,046.16. Instead of assessing this amount directly against the property, the city council erroneously assessed it against the street car the right of plaintiff in error to a new and adequate hearing in respect of the assessment. We think, therefore, that the judgment below should be modified and corrected so as definitely to preserve such right. So modified, it is affirmed. The costs here will be equally divided. [2] The terms and conditions in the original franchise granted by Oklahoma City to the plaintiff in error, which require it, under certain portions of occupied streets, are not applicable in the circumstances here presented and cannot be relied upon to defeat the assessment now in question. The land supposed to be benefited belongs to the company; the city has made no contract which prevents imposition upon it of a fair share of the cost of beneficial improvements. L. & N. R. R. Co. v. Barber, 197 U. S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819. Modified and affirmed. |