(41 Sup.Ct.) Interstate Commerce Commission, while a rail- [ for transmitting the message represented the road rate can only be established by filing the sum of the local rates on the several contariff with the Commission, which is merely a necting lines. The Western Union's share matter of procedure, does not show any inten- was $4.65, and of this $3.75 was apportioned tion to make a distinction between the reto the cable system and 90 cents to the land quirement of uniformity of rates and service lines. This Western Union rate was estabin the transmission of telegrams from the relished by its tariff of telegraph and cable quirement in the carriage of freight. rates, in force since some time prior to June 18, 1910. Under the act of that date (chapter 309, 36 Stat. 544 [Comp. St. § 8563]), mak 4. Telegraphs and telephones 54 (5)-Limitation of liability on repeated message does not invalidate stricter limitation on unrepeat-ing telegraph and cable companies subject ed message. Even if the limitation of liability of a telegraph company for error in the transmission of a repeated message is invalid, because there is no rate on file at which a message can be transmitted without limitation of liability, that fact does not invalidate the limitation of the telegraph company's liability for the transmission of an unrepeated message to the amount of the toll received by it. Mr. Justice Pitney and Mr. Justice Clarke dissenting. On Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit. Action by Esteve Bros. & Co. against the Western Union Telegraph Company. A judgment for plaintiff was affirmed by the Circuit Court of Appeals (268 Fed. 22), and defendant brings certiorari. Reversed. to the Act to Regulate Commerce, this tariff had been filed with the Interstate Commerce Commission in May, 1916, by its permission and pursuant to an appropriate resolution of the company. The tariff so filed embodied the long used classification of messages, rules and regulations, including the provision 569 that the company "shall not be liable for of any unrepeated message, beyond the amount of that portion of the tolls which shall accrue to it." The plaintiffs did not in in fact assent to this limitation of liability. They did not, in sending the message at Barcelona, use a blank containing the provisions so limiting liability. They did not have actual knowledge of the resolution of the company or of the filing of the tariffs with the Interstate Commerce Commission. The plaintiffs contended at the trial that *Messrs. Rush Taggart and John G. Mil-in view of the above facts they were entiburn, both of New York City, W. B. Spen- tled to a verdict for the full amount of their cer, of New Orleans, La., and Francis R. The company contended that, since Stark and Joseph L. Egan, both of New York the message had not been repeated, the verdict should be limited to $4.65, the amount City, for petitioner. received by it as tolls. A verdict was directed for $31,095, with interest; judgment thereon was affirmed by the United States Circuit Court of Appeals for the Fifth Cir 567 Mr. Monte M. Lemann, of New Orleans, La., for respondent. 568 loss. *Mr. Justice BRANDEIS delivered the cuit (268 Fed. 22), and a petition for writ opinion of the Court. of certiorari was granted (254 U. S. 624, 41 Sup. Ct. 13, 65 L. Ed.). The sole question presented for our decision is the amount of damages recoverable. In September, 1917, the Western Union Telegraph Company delivered to Esteve Bros. & Co., at New Orleans, La., an unrepeated cable message from the latter's main [1] For more than 50 years prior to the office at Barcelona, Spain, directing a sale transaction here in suit the Western Union for future delivery of 2,000 bales of cotton. had maintained these two classes of rates The message actually sent had directed the for general cable and telegraph service. The sale of 200 bales. The error in transmis- usual or basic rate was for service pracsion resulted in a loss to Esteve Bros. &tically at the sender's risk; liability being Co. of $31,095. To recover compensation limited to the amount of the toll collected. for this loss they sued the Western Union in a state court of Louisiana. The case was removed to the federal District Court, and there was tried by jury upon these additional stipulated facts: The message was sent over lines of the Spanish Government Telegraph from Barcelona to Paris and thence over lines of the French government to Havre. There it was delivered to the Western Union, transmitted by its cable to New York City, and thence over its land lines to New Orleans. The error in transmission occurred on these land lines. The charge of $6.60, paid at Barcelona Another special rate entitled the sender to have the message repeated back to the point of origin and rendered the company liable in case of mistake or nondelivery up to fifty times the amount of the extra charge. The extra charge for this additional service was for telegrams one-half and for cables one-quarter of the basic rate. In Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883, decided in 1894, this classification of rates and the limitations upon the company's liability were declared by this court to be reasonable and valid, in the absence of willful misconduct For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *570 or gross negligence. The limitation upon the company's common-law liability was held to be in the nature of contract, and this liability, unlike that of a common carrier, was not an insurer's. It was merely for the damage flowing from failure to use due care in transmission. Primrose v. Western Union Telegraph Co., supra, 154 U. S. 14, 14 Sup. Ct. 1098, 38 L. Ed. 883. Since the limitation of liability was in the nature of contract, the provision had to be brought home to the sender of a message in order to be legally binding upon him. Assent by the sender was ordinarily established, if the message was written upon one of the company's blanks which set forth the limitation of liability. Primrose v. Western Union Telegraph Co., supra, 154 U. S. 25, 14 Sup. Ct. 1098, 38 L. Ed. 883. Compare Cau v. Texas & Pacific Ry. Co., 194 U. S. 427, 431, 24 Sup. Ct. 663, 48 L. Ed. 1053. Whether, in view of long-established practice, the mere sending of a message, although not written on such a blank, imported assent to the usual terms of the rate, involved, then, an issue of fact. See New Jersey Navigation Co. v. Merchant's Bank, 6 How. 344, 383, 12 L. Ed. 465. The question presented for our decision is whether, since the amendment of June 18, 1910, to the Act to Regulate Commerce, the sender is, without assent in fact, bound as matter of law by the provision limiting liability, because it is a part of the lawfully established rate. The lawful rate having been established, the company was by the provisions of section 3 of the Act to Regulate Commerce prohibited from granting to any one an undue preference or advantage over the public generally. For, as stated in Postal Tel.-Cable Co. v. Warren-Godwin Co., supra, 251 U. S. 30, 40 Sup. Ct. 70, 64 L. Ed. 118, 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." If the general public upon paying the rate for an unrepeated message accepted substantially the risk of error involved in transmitting the message, the company could not, without granting an undue preference or advantage extend different treatment to the plaintiff here. The limitation of liability was an inherent part of the rate. The com. pany could no more depart from it than it could depart from the amount charged for the service rendered. The act of 1910 introduced a new principle into the legal relations of the telegraph *572 [2] The Act of June 18, 1910, c. 309, § 7, companies with their patrons which domi36 Stat. 539, 544 (Comp. St. § 8563), broad-nated and modified the principles previously ened the scope of the Act to Regulate Com- governing them. Before the act the compamerce to include "telegraph, telephone and nies had a common law liability from which cable companies (whether wire or wireless) they might or might not extricate themselves engaged in sending messages from [a] state according to views of policy prevailing in the several states. Thereafter, for all messages sent in interstate or foreign commerce, the outstanding consideration became that of uniformity and equality of rates. Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. 65 L. Ed. *571 * to any foreign country." And whatever may have been the legal incidents of transmitting the message from Barcelona to Havre under Spanish and French law, the Western Union, in sending the message over its own lines from Havre to New Orleans, was governed by the provisions of that act. Galveston, H. & S. A. Ry. Co. v. Woodbury, 254 U. S. 357, 41 Sup. Ct. 114, In the third paragraph of section 1 of the amended act Congress provided that messages might be "classified *into day, night, repeated, unrepeated, letter, commercial, press, government and such other classes as are just and reasonable, and different rate [might] be charged for the different classes of messages." Acting, in May, 1916, under the authority of that provision, the Western Union by appropriate action approved the tariff involved in the present case, and by permission of the Interstate Commerce Commission filed with it the tariff, including the provisions here in question. The company was not required so to do by the terms of the act or by any order of the Commission. Compare 25th Annual Report I. C. C. (1911) pp. 5, 6. But the rate, The rate became, not as before a matter of modified, but a matter of law by which a contract by which a legal liability could be uniform liability was imposed. Assent to the terms of the rate was rendered immaterial, because when the rate is used, dissent is without effect. This principle was established in cases involving the limitation upon a carrier's liability for baggage by Boston & Maine Railroad v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915B, 593, and Galveston, H. & S. A. Ry. Co. v. Woodbury, 254 U. S. 357, 41 Sup. Ct. 114, 65 L. Ed. decided by this court December 13, 1920. In the former case it was said: "If the charges filed were unreasonable, the only attack which could be made upon such regulation [limiting liability] would be by pro (41 Sup.Ct.) *574 ceedings contesting their reasonableness before the Interstate Commerce Commission. While *reasonable rate, the principle of equality they were in force they were equally binding and uniformity laid down in section 3 reupon the railroad company and all passengers quired that it should have exactly the same whose baggage was transported by carriers in force and effect as the rate initiated by a interstate commerce." rail carrier and filed according to the provisions of section 6. So here the limitation of liability attached to the unrepeated cable rate is binding upon all who send messages to or from foreign countries until it is set aside as unreasonable by the Commission. [3] It is strongly argued that the rule is not applicable to the situation before us, because of the difference in the provisions of law which govern the establishment of railroad and of telegraph rates. The railroad rate is established, and can only be es *573 [4] It was suggested that the attempted limitation of liability must fail under the rule recently applied in Union Pacific Railroad Co. v. Burke, 255 U. S. 317, 41 Sup. Ct. 283, 65 L. Ed. 656, decided February 28, 1921, because both the alternative rates offered in the Western Union tariff for cable messages were for limited liability, and because, therefore, no offer was made to the sender of a rate under which the company would assume full liability for all losses suffered through its negligence. It is by no means tablished by filing the tariff with the Com- clear that the rule of the Burke Case-esmission. Telegraph companies may initiate tablished for common carriers of goodsrates without filing tariffs with the Com-should be applied to telegraph and cable mission. Clay County Produce Co. v. West-companies. See the Primrose Case, supra, ern Union Telegraph Co., supra. Plaintiffs 154 U. S. 14, 14 Sup. Ct. 1098, 38 L. Ed. 883. insist that it is the filing and subsequent In any event, it is not applicable here. The publication of the railroad rate which gives Western Union did not, as in the case of it the force of law and requires the shipper telegrams, offer to send cable messages upon to take notice of it. But the contention, a special valuation to be made by the sender by dwelling unduly upon the procedural and paid for by an extra charge "based upon features of the act, would defeat the end such value equal to one-tenth of 1 per cent. which Congress had in view. Both railroad thereof." But it offered alternative rates for and telegraph-cable rates are initiated by the repeated and for unrepeated cable messages. carrier. It is true that a railroad rate does This long-established classification was exnot have the force of law, unless it is filed pressly recognized as just and reasonable for with the Commission. But it is not true cable as well as for telegraph messages in that out of the filing of the rate grows the the amendment made by the Act of June 18, rule of law by which the terms of this law- 1910, to section 1 of the Act to Regulate ful rate conclude the passenger. The rule Commerce. The provision in the terms ofdoes not rest upon the fiction of constructive fered by the company is: notice. It flows from the requirement of equality and uniformity of rates laid down in section 3 of the Act to Regulate Commerce (Comp. St. § 8565). Since any deviation from the lawful rate would involve either an undue preference or an unjust discrimination, a rate lawfully established must apply equally to all, whether there is knowl edge of it or not. Congress apparently concluded, in the light of discrimination there-livery tofore practiced by railroads among shippers and localities, that in transportation by rail equality could be secured only by provisions involving the utmost definiteness and constant official supervision. Accordingly by section 6 (Comp. St. § 8569) it forbade a carrier of goods from engaging in transportation unless its rates had been filed with the Commission; and it prohibited, under heavy penalties, departure in any way from the terms of those rates when filed. In the case of telegraph and cable companies Congress appears to have considered that such stringent provisions were not required to secure the end in view. It did not make filing with the Commission a condition precedent to the existence of a lawful telegraph and cable rate. When, therefore, the Western Union initiated and established this "To guard against mistakes or delays the sender of a cable message should order it repeated, that is, telegraphed back to the originating office for comparison. For this one quarter of the unrepeated message rate is charged in addition. Unless indicated on its face this is an unrepeated message and paid for as such. This company shall not be liable for mistakes or delays in transmission or de*575 66 * * of any un*repeated message, beyond the amount of that portion of the tolls which shall accrue to this company, [nor] of an repeated message, beyond fifty times the extra sum received by this company from the sender for repeating such message over its own lines. " The repeated rate, offering greater accuracy and greater liability in case of error, was open to anyone who wished to pay the extra amount for extra security. Whether the limitation of liability prescribed for the repeated message would be valid as against a sender who had endeavored, by having the message repeated, to secure the greatest care on the part of the company, we have no occasion to decide, because it is not raised by the facts before us. It is enough to sustain the limitation of liability attached to the unre peated rate that another special rate was state superintendent of public works for damages caused by navigation of tug by him is a suit against the state. offered for messages of value and importance, 5. States 191 (2)-Suit in admiralty against and not availed of. The fact that the alternative rate had tied to it a provision which, if tested, might be found to be void, is not material in a case where no effort was made to take advantage of it. Reversed. A monition issued by an admiralty court against a state superintendent of public works under the fifty-ninth (now fifty-sixth) admiralty rule, as the charterer of the tugs Mr. Justice PITNEY and Mr. Justice against which a libel had been filed to recover CLARKE dissent. (256 U. S. 490) In re STATE OF NEW YORK et al. Petition of WALSH et al. (Argued Dec. 13 and 14, 1920. Decided June 1, 1921.) No. 25. 1. Prohibition 3(2) Remedy by appeal does not always prevent writ against proceedings without jurisdiction. The fact that the objection to the jurisdiction of a court of admiralty might be raised by appeal from the final decree is not in all cases a valid objection to the issuance of a prohibition at the outset, under the authority conferred on the Supreme Court by Judicial Code, § 234 (Comp. St. § 1211), in cases of admiralty and maritime jurisdiction, where a court of admiralty assumes to take cognizance of matters over which it has no lawful jurisdic tion. 2. States 191(1) State cannot be sued without its consent. The entire judicial power granted by the United States Constitution does not embrace authority to entertain a suit by private parties against the state without the consent of the state, whether it is brought by citizens of another state or by subjects of a foreign state, in which case it is contrary to the Eleventh Amendment, or is brought by its own citizens, contrary to the fundamental rule that a state may not be sued without its consent. 3. States 191(2)-Rule against suit with. out consent applies to admiralty suits in per sonam. The rule that a state may not be sued with out its consent applies to an admiralty suit in personam, though the Eleventh Amendment in terms refers only to actions at law and suits in equity. damages resulting from a collision between their tows, is equivalent to a libel in personam against the state, over which the District Court is so clearly without jurisdiction that a writ of prohibition will issue without permitting the suits to run their course to final decree, which would be necessarily invalid. 6. States 191(2) Exemption of states from libels in personam does not destroy harmony of law. The contention that exemption of states from libels in admiralty without their consent would destroy the harmony and symmetry of admiralty law is without substance, since the symmetry and harmony to be maintained consists in the uniform operation of the principles and rules of the maritime law on all who are subject to the jurisdiction of admiralty. On Petition for Writs of Prohibition and Mandamus. Petition by the State of New York and Edward S. Walsh, as its superintendent of Public Works, for writs of prohibition and mandamus, directed to the United States District Writ of prohibition Court (268 Fed. 561). issued. See, also, 256 U. S. 503, 41 Sup. Ct. 592, 65 L. Ed. -; 41 Sup. Ct. 622. 491 *Mr. Edward G. Griffin, of Albany, N. Y., for petitioners. Mr. Ellis H. Gidley, of Buffalo, N. Y., for respondent. *494 *Mr. Justice PITNEY delivered the opinion of the Court. $495 Three separate libels in rem were filed in the United States District Court for the Western District of New York-two against the steam tug Charlotte, her engines, boilers, machinery, etc., by one Dolloff and one Wagner, respectively, both residents and presumably citizens of the state of New York, to severally recover for damages alleged to have been caused to certain canal boats owned by 4. States 191(2)-Suit against officers for them while navigated upon the Erie Canal in official acts is suit against state. tow of the Charlotte; the other against the A suit brought against the state officers steam tug Henry Koerber, Jr., her boilers, as representing the state's action and liability, engines, tackle, etc., by Murray Transportathus making it the real party in interest, is a tion Company, a corporation of the state of suit against the state, which cannot be maintained without its consent, though the state is New York, bailee of a certain coal barge, to not a party to the record, and though the ob-recover damages alleged to have been receivject of the suit is not to compel the state specifically to perform its contract, but is to require it to make pecuniary satisfaction for liability. ed by the barge while navigated upon the Erie Canal in tow of the Koerber. In each case the tug was claimed by Frank F. Fix and Charles Fix, partners in business under For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (41 Sup.Ct.) *497 [1] The power to issue writs of prohibition to the District Courts when proceeding as courts of admiralty and maritime jurisdiction is specifically conferred upon this court by section 234, Judicial Code (Act March 3, 1911, c. 231, 36 *Stat. 1087, 1156 [Comp. St. § 1211]). And the fact that the objection to the jurisdiction of the court below might be raised by an appeal from the final decree is not in all cases a valid objection to the issuance of a prohibition at the outset, where a court of admiralty assumes to take cognizance of matters over which it has no lawful jurisdiction. In re Cooper, 143 U. S. 472, 495, 12 Sup. Ct. 453, 36 L. Ed. 232. the name of Fix Bros., of Buffalo, N. Y., and trict Court. Nor is any relief asked against released from arrest on the filing of satis- Mr. Walsh individually; the proceedings factory stipulations. Claimants filed answers against him being strictly in his capacity as to the several libels, and at the same time a public officer. filed petitions under admiralty rule 59, 29 Sup. Ct. xxii (new rule 56, 40 Sup. Ct. xxi), setting up in each case that at the time of the respective disasters and damage complained of the tugs were under charter by claimants to Edward S. Walsh, superintendent of public works of the state of New York, who had entered into such charter parties under authority reposed in him by an act of the Legislature of the state of New York, being chapter 264 of the Laws of 1919, and had the tugs under his operation, control, and management; that if decrees should be ordered in the respective causes against the tugs the claimants, because of their ownership of the vessels, would be called upon for payment, and thus would be mulcted in damages for the disasters, to which they were total strangers; and that by reason of these facts Edward S. Walsh, superintendent of public works of the state of New York, ought to be proceeded against in the same suits for such damages in accordance with the rule. The District Court, pursuant to the prayer of these petitions, caused monitions to be #496 issued in all three cases against Edward S. Walsh, superintendent of public works, citing him to appear and answer, and in case he could not be found that "the goods and chattels of the state of New York used and controlled by him" should be attached. The monitions were served upon Walsh within the jurisdiction of the court. The Attorney General of the state appeared in all three cases specially in behalf of the state and the people thereof, and of Walsh, and filed a suggestion that the court was without jurisdiction to proceed against Walsh, as superintendent of public works, for the reason that, as appeared upon the face of the proceedings, they were suits against the state of New York in which the state had not consented to be sued. The Dis [2] That a state may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a state without consent given; not one brought by citizens of another state, or by citizens or subjects of a foreign state, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the amendment is but an exemplification. Beers V. Arkansas, 20 How. 527, 529, 15 L. Ed. 991; Railroad Co. v. Tennessee, 101 U. S. 337, 339. 25 L. Ed. 960; Hans v. Louisiana, 134 U. S. 1, 10-17, 10 Sup. Ct. 504, 33 L. Ed. 842; North Carolina v. Temple, 134 U. S. 22, 30, 10 Sup. Ct. 509, 33 L. Ed. 849; Fitts v. McGhee, 172 U. S. 516, 524, 19 Sup. Ct. 269, 43 L. Ed. 535; Palmer v. Ohio, 248 U. S. 32, 34, 39 Sup. Ct. 16, 63 L. Ed. 108; Duhne v. New Jersey, 251 U. S. 311, 313, 40 Sup. Ct. 154, 64 L. Ed. 280. [3] Nor is the admiralty and maritime trict Court denied motions to dismiss the the rule. It is true the amendment speaks jurisdiction exempt from the operation of monitions (The Henry Koerber, Jr. [D. C. N. only of suits in law or equity; but this is beY.] 268 Fed. 561), whereupon the Attorney cause, as was pointed out in Hans v. LouisiGeneral, on behalf of the state and the peo-ana, supra, the amendment was the outcome ple thereof, and of Walsh, as superintendent of a purpose to set aside the effect of the deand individually, under leave granted, filed cision of this court in Chisholm v. Georgia, in this court a petition for writs of prohibi- 2 Dall. 419, 1 L. Ed. 440, which happened to tion and mandamus. An order to show cause was issued, to which the District Judge made a return, and upon this and the proceedings in the District Court the matter has been argued. The record shows that the charters had expired according to their terms, and the tugs were in possession of the claimants, neither the state nor Walsh having any claim upon or interest in them. At no time has any res belonging to the state or to Walsh, or in which they claim any interest, been attached or brought under the jurisdiction of the Dis be a suit at law brought against the state by a citizen of another state, the decision turning upon the construction of that clause of section 2 of article 3 of the Constitution establishing the judicial power in cases in 498 law and equity between a state *and citizens of another state, from which it naturally came to pass that the language of the amendment was particularly phrased so as to reverse the construction adopted in that case. In Hans v. Louisiana, supra, 134 U. S. 15, 10 Sup. Ct. 504, 33 L. Ed. 812, the court dem |