The legislature of a state, when so authorized by its
constitution, has power to impose a limitation of the time for
transportation of livestock.
The legislature of a state, when so authorized by its
constitution, has power to provide a definite measure of such
damages as may be difficult to estimate or prove for culpable
violations of a statute limiting the time for transportation of
livestock.
A contention that a statute is unconstitutional under a
particular provision of the Constitution cannot be made in this
Court if not made in the court below.
Contracts made after the enactment of a statute are subject to
and do not impair it.
The Cattle Train Speed Act of Nebraska, establishing a rate of
speed on branch lines within the state and imposing a penalty of
$10 per car per hour, is not unconstitutional under the Fourteenth
Amendment as depriving the railroad company of its property without
due process of law because it fixes an arbitrary amount as
liquidated damages.
84 Neb. 607 affirmed.
Page 228 U. S. 71
The State of Nebraska enacted a law requiring railroads
conveying livestock to convey the same at a rate of speed so that
the time consumed in a journey from the initial point of receiving
the stock to the point of feeding or destination should not exceed
one hour for each eighteen miles' travel, including the time of
stops at stations or other points. It is provided that, where the
initial point is not a division station, and on all branch lines
not exceeding 125 miles in length, the rate of speed shall be such
that not more than one hour shall be consumed in traversing each
twelve miles of the distance, including stops at stations or other
points, from the initial point to the first division station or
over said branches. The time consumed in picking up and setting
out, loading, or unloading stock at stations shall not be included
in the time required.
It is further provided that, upon branch lines not exceeding 125
miles in length, livestock of less than six cars in one
consignment, the railroad company may designate three days in each
week as stock-shipping days, and publish and make public the days
so designated. After notice of ten days of the days selected and
designated, the schedule provided in the act shall only apply to
such stock-shipping days. It is provided that a carrier
"violating any provisions of the act shall pay to the owner of
such livestock the sum of ten dollars for each hour for each car it
extends or prolongs the time of transportation beyond the period
here limited as liquidated damages, to be recovered in an ordinary
action, as other debts are recovered."
The act was approved March 30, 1905. Nebraska Session Laws 1905,
p. 506, Chapter 107.
Defendant in error brought an action against plaintiff in error
in the District Court of Garfield County for the sum of $1,770,
being the aggregate of twenty-five violations of the act for stock
delivered to the railroad July 14,
Page 228 U. S. 72
1905, and subsequent dates, for transportation in full carloads,
each violation being made a cause of action, the amount of each
varying with the time of prolongation of the transportation of the
stock.
There was alleged in the cause of action no ground of recovery
other than the statute and the delay in the transportation of the
stock. In other words, the time consumed in the transportation of
the stock, such time being given and alleged to be "longer than
permitted by the statutes of Nebraska, to the damage of the
plaintiff . . . as provided for by statutes."
A demurrer was filed to the petition charging that the statute
violated the due process and equality clauses of the Fourteenth
Amendment of the Constitution of the United States; that the
plaintiff (defendant in error) sought
"to recover property or money from the defendant without its
consent and for the private use of the plaintiff, without
compensation, and which recovery, if had, would amount to
confiscation of the property of the defendant, in violation of the
provisions of Article Fourteen of the Amendments of the
Constitution of the United States; that the recovery, if permitted,
would be the recovery of a penalty under an act of the legislature
which is penal in its character, and was not such a right as the
plaintiff could have or enforce, in violation of sec. 5, Art. 8, of
the Constitution of Nebraska."
The demurrer was overruled, and the defendant answered, alleging
the following: the shipments were duly and properly made without
unnecessary delay, and the consignments carried were each and all
duly delivered to the consignee in accordance with the contracts
made for the shipment of the stock, and without any fault or
negligence on the part of the defendant company.
A written contract for each shipment was duly made and entered
into by plaintiff and defendant, by which it was contracted and
agreed that the shipments would
Page 228 U. S. 73
not be carried within any specified time, nor to arrive at
destination for any particular market.
The damages sought to be recovered are in reality a penalty or
forfeiture, and that a recovery by plaintiff would be in violation
of the due process and equal protection clauses of the Fourteenth
Amendment of the Constitution of the United States.
The plaintiff's cause of action is for the recovery of a penalty
sought to be imposed upon the defendant contrary to the provisions
of article 8, § 5, of the Constitution of Nebraska, and plaintiff
had no right or authority under the law to prosecute the action, or
to recovery therein.
An amended answer was filed which repeated the above, and
alleged that the stock was accepted and carried according to the
laws, rules, and usages that regulated and governed common
carriers, and in accordance with the schedules for the movement of
trains, as established and in force at the times the shipments were
made. The line of the defendant's railroad was alleged, the manner
of conducting its business, the times of receiving the various
shipments, their arrival at particular stations and at
destination.
A replication was filed to the answer, denying its
allegations.
The case was tried by the court without a jury, and judgment was
rendered for plaintiff in the sum of $1,640 and costs.
The supreme court decided that the judgment was excessive in the
amounts of $250 and $170, and those sums, in accordance with the
order of the court, were remitted by the plaintiff, and, with those
reductions, the judgment was affirmed. 84 Neb. 607.
Page 228 U. S. 81
MR. JUSTICE McKENNA delivered the opinion of the Court, after
stating the case as above:
The case is here in a simple aspect. There was no attempt made
to explain or justify the delays in the shipments, and any attack
on the statute on the ground that it includes delays resulting from
the Act of God, or cause over which the carriers have no control,
is precluded by the construction put upon the act by the supreme
court of the state.
The only proposition, then, which is presented is whether the
statute is beyond the power of government, and therefore offends
the Fourteenth Amendment of the Constitution of the United States
by depriving plaintiff in error of its property without due process
of law.
This is contended upon two grounds: 1. that statute, as
considered by the supreme court of the state, is a legislative
determination of the quantum of damages arising from a breach of a
private contract for the shipment of livestock, and a legislative
determination of damages wholly distinct and apart from the
exercise of police power, and not a punitive measure to enforce
compliance with the commands of the statute; 2. the statute, being
declared of such character, is "a usurpation of functions which are
exclusively judicial, contrary to the law of the land," and
repugnant to the provisions of the Fourteenth Amendment.
It is the concession of the contentions that, had the statute
been considered by the supreme court a police regulation, the
objection made to it would be without
Page 228 U. S. 82
foundation. But, meeting the effect of the concession, plaintiff
in error asserts that, if the court had so ruled, defendant in
error would have had no right of action, because, under § 5,
article 8, of the constitution of the state, all penalties must be
appropriated to the use and support of the common schools.
The court found no conflict between the law and the constitution
of the state. Section 5, article 8, however, was not discussed in
any of the opinions. Other provisions of the constitution were
considered, and the contentions based on them decided to be
untenable. The omission is not important to our inquiry, and we
shall assume, as plaintiff in error contends, that the court
regarded the statute as giving compensation for damages for
injuries suffered, rather than penalties for omission of duties
prescribed. It does not follow, however, that the court decided
that the statute was not passed in exercise of the power of the
state to regulate the conduct of the carriers in the performance of
their duties to the public. The opinion of the court makes the
contrary manifest. The court said:
"In the instant case, the enforcement of the law, as we view the
record, will not deprive defendant of any constitutional guaranty,
state or national. Defendant's property is affected by a public
interest; having devoted that property to a use in which the public
have an interest, it must, to the limit of the interest thus
acquired by the public, submit to the control of such property for
the public good. . . . The public is interested not only in being
permitted to have its property transported for a reasonable
compensation, but also in having that property, especially if
subject to rapid depreciation, transported with reasonable
promptness and care. . . . It is a matter of common knowledge that
livestock confined in a freight car deteriorates in condition, and
that, if the animals are to be placed on market within a short time
of the termination of the transportation, the depreciation is not
confined to a
Page 228 U. S. 83
shrinkage in weight, but to many other factors difficult to
prove, but actually existing and seriously affecting the market
value of said property. As the damage accruing from the protracted
confinement of stock is difficult to prove with reasonable
exactitude, and yet always exists, the legislature has the power to
provide for liquidated damages. Such legislation is not unsound in
principle, and has been upheld in many courts."
The court, in illustration of its views and the quality of the
statute, compared it to § 4966 of the Revised Statutes of the
United States, which provides for a liability of $100 for the first
infringing performance of a copyrighted dramatic piece, and $50 for
the second performance, as, the court said, "a reasonable
liquidation of damages which the proprietor had suffered from the
wrongful acts of the defendant."
The court also adduced two examples from statutes of the state,
sustained by decisions, in both of which $50 was given as
liquidated damages -- in one, against an officer for collecting a
fee greater than allowed by law; in the other, against a mortgagee
for failing to release a chattel mortgage, and $500 against an
officer for rearresting a person after his discharge on habeas
corpus.
Answering the objection that the legislature might subject an
occupant of a public office to damages for particular unlawful
acts, and not have such power over others, the court said that the
reason applied as well to "like provisions in statutes passed to
regulate public carriers in the transaction of their business."
It is clear from the excerpts from the opinion of the court that
it considered the statute as passed to regulate public carriers,
and to give damages against them for the omission of the duties
prescribed by it, which, though existing, could not be exactly
estimated or proved. The
Page 228 U. S. 84
court therefore only announced and applied the principle of
liquidated damages. It would seem, too, by the examples it adduced
from other statutes of the state, to reject the view asserted by
plaintiff in error that, even if the statute be regarded as
imposing penalties upon the carriers, it was thereby made to
conflict with § 5, article 8, of the state constitution, and could
not be made payable to the party injured. This was declared in
Clearwater Bank v. Kurkonski, 45 Neb. 1, and sums provided
to be recovered by other statutes were decided in other cases to be
in the nature of penalties.
Graham v. Kibble, 9 Neb. 184;
Phoenix Ins. Co. v. Bohman, 28 Neb. 251;
Phoenix Ins.
Co. v. McEvony, 52 Neb. 566;
Deering v. Miller, 33
Neb. 655. These cases are distinguishable from those cited by
plaintiff in error in which the court disapproved a statute which
purported to give double damages, and the court, in the case at
bar, explicitly distinguished them from cases in which liquidated
damages were provided for. In other words, the court decided that
the statute imposed only compensatory damages, fixing them at a sum
certain because of the difficulty "of the ascertainment of the
actual damages suffered by the aggrieved person."
We need not extend the discussion. We repeat -- the case is here
in a simple aspect. Two propositions only are involved: (1) the
power of the legislature to impose a limitation of the time for the
transportation of livestock; (2) to provide a definite measure of
damages which may be difficult to estimate or prove. It is too late
in the day to deny the possession of the first power, and we think
the other is as fully established, and that the statute was enacted
to meet conditions which had arisen from the conduct of carriers,
and which, in the judgment of the legislature, demanded a remedy.
And the court confined the act strictly to culpable violation of
its requirements. To the plea of extra expense which might be
incurred by
Page 228 U. S. 85
obedience to the statute, the court said it could be compensated
by extra charge.
The contention is made that the statute impairs the obligation
of the contracts which existed between plaintiff in error and
defendant in error, but that contention was not made in the court
below, and cannot therefore be made here. Besides, there is no
evidence of the contracts in the record. Contracts were pleaded,
and there appears to have been some attempt to introduce them in
evidence, but unsuccessfully, and they were stricken from the bill
of exceptions. But, assuming the contracts may be considered on
this record, a complete answer to the contention that the statute
impairs their obligation is they were made subsequently to the
statute, and therefore are subject to it.
Judgment affirmed.
