previous statute of the state had fixed a 1 and the adaptation of rates to various groups of maximum passenger rate of three cents per services." mile. The statute in controversy required the issuing of mileage books for a thousand miles, good for two years, at a less rate. This court held that a maximum rate for passengers having been established, that rate was to be regarded as the reasonable compensation for the service, and that the fixing of the less rate to particular individuals was an arbitrary exercise of legislative power and an unconstitutional interference with the business of the carrier, the effect of which was to violate the provisions of the Fourteenth Amendment to the federal Constitution by depriving the railroad company of its property without due process of law and denying to it the equal protection of the law. [3] That the state may fix maximum rates governing one-way passenger travel is conceded. Having the general authority to fix rates of a reasonable nature, we can see no good reason for denying to the state the power to exercise this authority in such manner as to fix rates for special services different from those charged for the general service. In our opinion the rate for a single fare for passengers generally may be varied so as to fit the particular and different service which involves, as do commutation rates, the disposition of tickets to passengers who have a peculiar relation to the service. The service rendered in selling a ticket for one continuous trip is quite different from that involved in disposing of commutation tickets where a single ticket may cover 100 rides or more within a limited period. The labor and cost of making such tickets as well as the cost of selling them is less than is involved in* making and selling single tickets for single journeys to one-way passengers. The Lake Shore Case did not involve, as does the present one, the power of a state commission to fix intrastate rates for commutation tickets where such rates had already been put in force by the railroad company of its own volition, and we confine ourselves to the precise question presented in this case, The service rendered the commuter, carrywhich involves the supervision of commuta- ing little baggage and riding many times on a tion rates when rates of that character have single ticket for short distances, is of a spebeen voluntarily established by the carrier.cial character and differs from that given The rates here involved are wholly intrastate. the single-way passenger. The power of the states to fix reasonable intrastate rates is too well settled at this time to need further discussion or a citation of authority to support it. In Interstate Commerce Commission v. B. & O. R. R., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699, this court held that a “party rate ticket" for the transportation of ten or more persons at a less rate than that charged a single individual did not make a discrimination against an individual charged more for the same service or amount to an unjust or unreasonable discrimination within the meaning of the act to regulate commerce. In the course of the opinion the right to issue tickets at reduced rates good for limited pe riods upon the principle of commutation was fully recognized. See 145 U. S. 277, 278, 279, 280, 12 Sup. Ct. 844, 36 L. Ed. 699. [2] Having the conceded authority to regulate intrastate rates, we perceive no reason why such power may not be exercised through duly authorized commissions and rates fixed with reference to the particular character of the service to be rendered. In Norfolk & Western Ry. v. West Virginia, 236 U. S. 605, 608, 35 Sup. Ct. 437 (59 L. Ed. 745), after making reference to Northern Pacific Ry. v. North Dakota, 236 U. S. 585, 35 Sup. Ct. 429. 59 L. Ed. 735, Ann. Cas. 1916A, 1, this court said: It is well known that there have grown up near to all the large cities of this country suburban communities which require this peculiar service, and as to which the railroads have themselves, as in this instance, established commutation rates. After such recognition of the propriety and necessity of such service, we see no reason why a state may not regulate the matter, keeping within the limitation of reasonableness. On the strength of these commutation tariffs, it is a fact of public history that thousands of persons have acquired homes in city suburbs and nearby towns in reliance upon this action of the carriers in fixing special rates and furnishing particular accommodaThis fact has tions suitable to the traffic. been recognized by the courts of the country, by the Interstate Commerce Commission, and quite generally by the Railroad Com missions of the states.1 The question of the power of the Public Service Commission of the State of New 1 Forty-Fourth Annual Report of the Railroad Commission for the year 1912 (Massachusetts) pp. 67, 107, 113; Public Utilities Reports, 1915B (Massachusetts) p. 362; Public Utilities Reports, 1915E (Rhode Island) p. 269; Public Service Commission Reports, Second District of N. Y. (New York) vol. III, pp. 212, 461; Idem, vol. IV, p. 11; Public Utilities Reports, 1315B (New Jersey) p. 161; Public Utilities Commission Reports, 1914 (Illinois) vol. I, pp. 553, 590; Public Utilities Commission Reports, "It was recognized [in the North Dakota case] 1913-1914 (Colorado) p. 131; Public Utilities Rethat the state has a broad field for the exer- ports, 1915D) (Idaho) .p. 742; Opinions and Orders cise of its discretion in prescribing reasonable of the Railroad Commission (California) vol. I, rates for common carriers within its jurisdic- pp. 451, 855; Idem, vol. II, p. 910; Idem, vol. tion; that it is not necessary that there should be uniform rates or the same percentage of profit on every sort of business; and that there is abundant room for reasonable classification III, pp. 5, 30, 32, 749, 800, 807, 973; Idem, vol. V, p. 555; Idem, vol. VI, pp. 853, 1008; Idem, vol. VII, pp. 179, 894; The Commutation Rate Case, 21 Interst. Com. Com'n R. 428. compel the company to carry persons under the circumstances as provided for in this act, for less than the usual rates does not seem to be based upon any reason which has hitherto been regarded as sufficient to authorize an interference with the corporation, although a common carrier and a railroad.' prosperity, in part, to the commutation rates "Our flourishing cities owe their position and for suburban service; the health and welfare of the public are concerned that people doing business in the large cities may live in the country where the surroundings are pleasanter, more healthy and to the advantage of themselves and their families. It is a known fact that such York in this respect was before the Appellate Division of the Supreme Court of that state in People ex rel. New York, New Haven & Hartford Railroad Co. v. Public Service Commission, 159 App. Div. 546, 145 N. Y. Supp. 513. In that case it was said: "Subdivision 4 of section 33 of the Public Service Commissions Law (Consol. Laws, c. 48 [Laws of 1910. c. 480], as amended by Laws of 1911, c. 546) empowers the Commission to fix reasonable and just rates for such service. It is urged, however, that the statute is invalid under the rule of Lake Shore, etc., R. Co. v. Smith, 173 U. S. 684 [19 Sup. Ct. 565, 43 L. Ed. 858]. In that case the statute of Mich-rates exist upon all railways entering large igan had fixed a maximum passenger rate at three cents per mile. A subsequent enactment required the issuing of mileage books for 1,000 miles, good for two years, at a less rate. The court held that having fixed a uniform maximum rate as to all passengers, such rate was the reasonable compensation for the service, and that the fixing of a less rate to particular individuals was an unreasonable and arbitrary exercise of legislative power: that it was not for the convenience of the public and thus within the police power, but was for the convenience of certain individuals who were permitted to travel upon the railroads for less than the reasonable rate prescribed by law; that the law was, therefore, in violation of the Fourteenth Amendment of the federal Constitution in depriving the company of its property without due process of law and by depriving it of the equal protection of the laws. "In Beardsley v. N. Y., L. E. & W. R. R. Co., 162 N. Y. 230 [56 N. E. 488], the Court of Appeals felt constrained by the Smith Case to declare the Mileage Book Law of this state invalid as to companies in existence at the time of its passage, but in Purdy v. Erie R. R. Co., 162 N. Y. 43 [56 N. E. 508, 48 L. R. A. 669]. that law was held valid as to companies organized after the statute was passed. "In Louisville & Nashville R. R. Co. v. Kentucky. 183 U. S. 503 [22 Sup. Ct. 95, 46 L. Ed. 298]. after citing the Smith Case and like cases, the court says (at page 511): 'Nor, yet, are we ready to carry the doctrine of the cited cases beyond the limits therein established.' "In the Minnesota Rate Case (Simpson v. Shepard) 230 U. S. 352 [33 Sup. Ct. 729. 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 181, the legality of an order of the Commission of that state was recognized which fixed a maximum freight rate and passenger rate, the latter at two cents a mile as the maximum fare for passengers twelve years of age or over, and one cent a mile for those under twelve years of age. "In Interstate R. Co. v. Massachusetts, 207 U. S. 79 [28 Sup. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555]), the Massachusetts law prescribing special rates less than the maximum for school children was held valid. These cases indicate that the Smith Case is not to be extended beyond the facts upon which it rests. "The Smith Case distinguishes itself from this case where the court (at page 693 [of 173 U. S., at page 569 of 19 Sup. Ct., 43 L. Ed. 858]) says: This act is not like one establishing certain hours in the day during which trains shall be run for a less charge than during the other hours. In such case it is the establishing of maximum rates of fare for the whole public during those hours, and it is not a discrimination in favor of certain persons by which they can obtain lower rates by purchasing a certain number of tickets by reason of which the company is compelled to carry them at the reduced rate, and thus, in substance, to part with its property at a less sum than it would be otherwise entitled to charge. The power to cities, and have usually been established by the That decision was affirmed by the Court of Appeals of New York on the opinion of 215 N. Y. 689, 109 The subject was elaborately considered by the Interstate Commerce Commission in the Commutation Rate Case, 21 Interst. Com. Com'n R. 428, in which the authority of the Commission to fix reasonable rates was sustained. In the course of the opinion, Commissioner Harlan, speaking for a unanimous Commission, said: "Another case strongly relied upon by the defendants is L. S. & M. S. R. R. Co. v. Smith, 173 U. S. 699 [19 Sup. Ct. 565, 43 L. Ed. 858]. It there appeared that the Legislature of the state of Michigan had fixed the maximum passenger fare to be charged by railroad companies for local journeys within the state. By a subse quent enactment it required the carriers to sell 1,000-mile tickets for use within the lower peninsula at a price not exceeding $20 and in the upper peninsula at a price not exceeding $25. Various conditions affecting the use of the* tickets were also fixed by the act, and among others that they should be valid for two years after the date of purchase. It was held that in the exercise of its general police power a state may fix maximum fares. but that it may not fix a rate for 1.000-mile tickets that involves a discrimination in favor of those who buy them. The statute was held to be invalid. The case, however, involved mileage tickets which, we must repeat, differ very essentially in character from commutation tickets. "We have been referred to no other adjudication by the courts and are left to conclude that the precise point now before us has not been passed upon by the courts. "It will not be necessary to dwell here upon the importance of the question not only to the particular suburban communities involved on the record before us, but to many other such communities throughout the country, the prosperity and growth of which largely depend upon an efficient and reasonable commutation service. Many such communities have not only been en couraged by the carriers, but were, in fact, originally established largely on their initiative. Suburban property has been bought, homes have been established, business relations made, and the entire course of life of many families adjusted to the conditions created by a commutation service. This may not have been done on the theory that the fares in effect at any particular time would always be maintained as maximum fares, but countless homes have been established in suburban communities in the belief that there would be a reasonable continuity in the fares and that the carriers in any event would perform the service at all times for a reasonable compensation. "Nor need we stop to point out the distinction between commutation tickets on the one hand and excursion and mileage tickets on the other. view of this Commission, and is the view generally entertained, although there may be exceptional circumstances where a different conclusion would be required. It by no means follows, however, that a carrier under section 22 may exercise the same scope and freedom of action with respect to commutation tickets." The reasoning of these decisions is sound and involves no violation of the federal Constitution. True it is that it may not be possible to reconcile these views with all that is said in the opinion delivered for the majority of the court in the case of Lake Shore & Michigan Southern Ry. Co. v. Smith, supra. The views therein expressed which Compared with the normal one-way fare all are inconsistent with the right of the states such tickets may be said to be abnormal. But to fix reasonable commutation fares when the resemblance stops at that point. Although the carrier has itself established fares for they are mentioned together in section 22, the such service, must be regarded as overruled force and effect of that provision must neces- by the decision in this case. sarily differ with the differing character of the several kinds of tickets. It seems to be settled under that section that a carrier may enter upon the policy and practice of issuing mileage books and excursion tickets at less than its regular normal fare for the one-way journey, and, having adopted such a policy, may subsequently withdraw from it and refuse longer to issue such tickets. That has been the We find no error in the decree of the Court of Appeals of Maryland, and the same is Affirmed. The CHIEF JUSTICE, Mr. Justice McKENNA, and Mr. Justice McREYNOLDS dissent. (245 U. S. 18) BRUCE et al. v. TOBIN. (Submitted Oct. 1, 1917. Decided Oct. 22, 1917.) No. 645. 1. COURTS 393-REVIEW OF DECISIONS OF STATE COURTS - FINALITY OF DETERMINA TION. Under Act Sept. 6, 1916, c. 448, 39 Stat. 726, authorizing the Supreme Court by certiorari or otherwise to review causes wherein a final judgment or decree has been rendered by the highest court of a state, where the federal Constitution, laws, or treaties are drawn in question, the judgment of a state Supreme Court, reversing the judgment of the trial court and granting a new trial in an action to recover a share in the amount paid by a railroad company for the death of an employé while engaged in interstate commerce, is not reviewable by writ of certiorari, though the state Supreme Court determined the ultimate right of plaintiff to recover and the general principles by which that right was to be measured, as the right of review is still limited, as it was prior to the act of 1916, to final judgments, and the finality of the judgment is to be determined by the face of the record and the formal character of the judgment rendered. 2. STATUTES 225-ADOPTION OF PROVISIONS PREVIOUSLY CONSTRUED. The re-enactment of the requirement of finality, with respect to judgments of state courts reviewable by the federal Supreme Court, in Act Sept. 6, 1916, was an adoption of the construction on that subject which had long prevailed. On Petition for a Writ of Certiorari to the Supreme Court of the State of South Dakota. Action by William Tobin against W. L. Bruce, as administrator of John T. Tobin, deceased, and Catherine Tobin. Judgment for defendants was reversed by the Supreme Court of South Dakota (162 N. W. 933), and the defendants petition for a writ of certio Setting aside the action of the trial court rejecting the claim, but not specifically fixing the amount of the father's recovery, the Supreme Court of South Dakota directed a new trial to accomplish that result. Application for certiorari was then made by the petition er on the ground that such decision involved questions under the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]) reviewable by certiorari under the Act of Congress of September 6, 1916, c. 448, 39 Stat. 726. [1] The act in question, although it deprived of the right of review by writ of error which had hitherto obtained in certain cases and substituted as to such cases the right of petitioning for review by certiorari subjected this last right to the same limitation as to the finality of the judgment of the state court sought to be reviewed which had prevailed from the beginning under section 709, Rev. Stat. (section 237, Judicial Code [Comp. St. 1916, § 1214]). Finality, therefore, continues to be an essential for the purposes of the remedy by certiorari conferred by the act of 1916. [2] It may be indeed said that although the case was remanded by the court below for a new trial, the action of the court was in a sense final because it determined the ultimate right of the father to recover and the general principles by which that right was to be measured. But that contention is not open as it was settled under section 709, Rev. Stat. (sec tion 237, Judicial Code), that the finality con templated was to be determined by the face of the record and the formal character of the judgment rendered-a principle which excluded all conception of finality for the purpose of review in a judgment like that below rendered. Haseltine v. Bank, 183 U. S. 130, 22 Sup. Ct. 49, 46 L. Ed. 117; Schlosser v. Hemphill, 198 U. S. 173, 25 Sup. Ct. 654, 49 L. Ed. 1000; Louisiana Navigation Co. v. Oyster Commission of Louisiana, 226 U. S. Memorandum opinion by Mr. Chief Justice 99, 33 Sup. Ct. 78, 57 L. Ed. 138; Coe v. ArWHITE, by direction of the Court. rari. Petition denied. Messrs. E. A. Burgess and B. I. Salinger, both of Sioux City, Iowa, for petitioners. mour Fertilizer Works, 237 U. S. 413, 418, A railroad in whose service Tobin lost his 419, 35 Sup. Ct. 625, 59 L. Ed. 1027. The relife while actually engaged in carrying on in-enactment of the requirement of finality in terstate commerce, admitting liability under the act of Congress, paid the conceded loss to his administrator. A father and mother, but no widow or children, survived. The father, There being then no final judgment within the respondent, sued in a state court to re- the contemplation of the act of 1916, the pe cover half the amount as his share of the loss. I tition for a writ of certiorari is denied. the act of 1916 was in the nature of things an adoption of the construction on the subject which had prevailed for so long a time. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes MEMORANDUM DECISIONS No. 1. DETROIT UNITED RAILWAY, plaintiff in error, v. CITY OF DETROIT. Oct. 1, 1917. In error to the Supreme Court of the State of Michigan. Messrs. John C. Donnelly and Henry L. Lyster, both of Detroit, Mich., for Detroit United Ry. Messrs. Richard I. Lawson and Harry J. Dingeman, both of Detroit, Mich., for City of Detroit. Dismissed without costs to either party per stipulation. No. 21. KANSAS CITY STOCK YARDS COMPANY OF MISSOURI, plaintiff in error, V. STATE OF KANSAS ex rel. John S. DAWSON, Attorney General. Oct. 1, 1917. In error to the Supreme Court of the State of Kansas. Mr. L. W. Keplinger, of Kansas City, Kan., for Kansas City Stock Yards Co. Dismissed with costs, on motion of counsel for the plaintiff in error. No. 135. SHILL ROLLING CHAIR COMPANY, plaintiff in error, v. ATLANTIC CITY; No. 136. Hannah M. CLOWNEY, trading as Smith's Rolling Chairs, plaintiff in error, v. ATLANTIC CITY; and No. 137. Thomas E. LASSITER, plaintiff in error, v. ATLANTIC CITY. Oct. 1, 1917. In error to the Court of Errors and Appeals of the State of New Jersey. For opinion below, see 87 N. J. Law, 399, 94 Atl. 314, judgments affirmed 88 N. J. Law, 739, 96 Atl. 293; 88 N. J. Law, 703, 704, 723, 96 Atl. 1102. Messrs. George A. Bourgeois and Harry R. Coulomb, both of Atlantic City, N. J., for plaintiffs in error. Dismissed with costs, on motion of counsel for the plaintiffs in error, and mandates granted. No. 149. ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, plaintiff in error, v. STATE OF LOUISIANA ex rel. CITY OF LAKE CHARLES. Oct. 1, 1917. In error to the Supreme Court of the State of Louisiana. For opinion below, see 138 La. 714, 70 South. 621. Mr. Henry Bernstein, of Monroe, La., for plaintiff in error. Dismissed with costs, on motion of counsel for the plaintiff in error. No. 173. Ricardo ASCARATE, plaintiff in error, v. STATE OF NEW MEXICO. Oct. 8, 1917. In error to the Supreme Court of the State of New Mexico. For opinion below, see 21 N. M. 191, 153 Pac. 1036. Messrs. Edward C. Wade, Jr., of El Paso, Tex., and Edward C. Wade and W. H. H. Llewellyn, both of Las Cruces, N. M., for plaintiff in error. Mr. Frank W. Clancy, Atty. Gen., for State of New Mexico. PER CURIAM. Dismissed for want of jurisdiction upon the authority of Twining v New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97; Ensign v. Pennsylvania, 227 U. S. 592, 597, 598, 33 Sup. Ct. 321, 57 L. Ed. 658; Frank v. Mangum, 237 U. S. 309, 342, 35 Sup. Ct. 582, 59 L. Ed. 969. No. 385. MOBILE TOWING & WRECKING COMPANY, petitioner, v. THE Steamship SAN CRISTOBAL, etc. Oct. 8, 1917. No. 258. MIDLAND VALLEY RAILROAD For opinion below, see 230 Fed. 599, 144 C. C. COMPANY, plaintiff in error, v. Della OG-A. 653. Mr. Palmer Pillans, of Mobile, Ala., DEN, administratrix, etc. Oct. 1, 1917. In for petitioner. Mr. Gregory L. Smith, of Mobile, error to the Supreme Court of the State of Ala., for the San Cristobal. Petition for a writ Oklahoma. For opinion below, see 159 Pac. of certiorari to the United States Circuit Court 256. Mr. Norman R. Haskell, of Oklahoma of Appeals for the Fifth Circuit denied. City, Okl., for plaintiff in error. Dismissed with costs, on motion of counsel for the plaintiff in error. No. 487. Bob BRAZIEL, petitioner, v. The UNITED STATES. Oct. 8, 1917. For opinNo. 717. Martiniano M. VELOSO, appellant, ion below, see 237 Fed. 1015, 150 C. C. A. 664. v. Vicente Francisco AGEO et al. Oct. 1, 1917. Mr. Theodore Mack, of Ft. Worth, Tex., for peAppeal from the Supreme Court of the Philip-titioner. The Attorney General, for the Unitpine Islands. Mr. Evans Browne, of Washing- ed States. Petition for a writ of certiorari to ton, D. C., for appellees. Docketed and dismissed with costs, on motion of Mr. Evans the United States Circuit Court of Appeals for the Fifth Circuit denied. Browne for the appellees. No. 54. The UNITED STATES, appellant, No. 488. NORTHWESTERN CONSOLI7. The GREAT LAKES TOWING COMPA- DATED MILLING COMPANY, petitioner, v. |