A railroad company, in defense of an action for penalties
imposed for exceeding passenger rates prescribed by a state law,
has no ground to claim that the penalties are unconstitutional in
that, by their severity, they prevent resort to the courts to test
the adequacy of the rates when it did not avail itself of its
opportunity to have such a test in a suit against the state
railroad commission, pending which the penalty provision could have
been suspended by injunction, and when it did not question the
prescribed rates in the action to collect the penalties. P.
251 U. S.
A provision for the collection of such penalties in an action by
the aggrieved passenger and for his use irrespective of his private
damages is consistent with due process of law. P. 251 U. S.
In determining whether such penalties are so severe, oppressive,
and unreasonable as to violate the due process clause, they should
be tested not by comparison with the overcharges in particular
instances, but by the public interest in having the rates adhered
to uniformly and the relation of the penalties to that object.
131 Ark. 442 affirmed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
By a statute of Arkansas regulating rates for the transportation
of passengers between points within the state,
Page 251 U. S. 64
any railroad company that demands or collects a greater
compensation than the statute prescribes is subjected "for every
such offense" to a penalty of "not less than fifty dollars nor more
than three hundred dollars and costs of suit, including a
reasonable attorney's fee," and the aggrieved passenger is given a
right to recover the same in a civil action. Act April 4, 1887
(Laws 1887, p. 227; Kirby's Digest, 1904, § 6620); Act March 4,
1915 (Laws 1915, p. 365; Kirby & Castle's Digest, 1916, §
In June, 1915, a company operating a line of railroad within the
state demanded and collected sixty-six cents more than the
prescribed fare from each of two sisters carried over part of its
line when returning to their home from a school commencement
elsewhere in the state, and, in suits separately brought for the
purpose and afterwards consolidated, these passengers obtained
judgments against the company for the overcharge, a penalty of
seventy-five dollars, and costs of suit, including an attorney's
fee of twenty-five dollars. The company appealed, asserting that
the 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. 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 prescribed, and second, that the penalty
is "arbitrary and unreasonable, and not proportionate to the actual
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 proceeding, the validity
Page 251 U. S. 65
of the rate -- that is, whether it is confiscatory or otherwise
-- before 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
209 U. S. 147
Willcox v. Consolidated Gas Co., 212 U. S.
, 212 U. S. 53
Missouri Pacific Ry. Co. v. Nebraska, 217 U.
, 217 U. S.
-208; Missouri Pacific Ry. Co. v. Tucker,
230 U. S. 340
Wadley Southern Ry. Co. v. Georgia, 235 U.
, 235 U. S. 659
And it also is true that, where such an opportunity is afforded
and the rate is adjudged valid, or the carrier fails to avail
itself 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,
p. 235 U. S. 667
et seq.; Gulf, Colorado & Santa Fe Ry. Co. v. Texas,
246 U. S. 58
246 U. S.
Here, it does not appear that the carrier had not been afforded
an adequate opportunity for safely testing the validity of the
rate, or that its deviation therefrom proceeded from any belief
that the rate was invalid. On the contrary, it is practically
conceded -- and we judicially know -- that, if the carrier really
regarded the rate as confiscatory, the way was open to secure a
determination of that question by a suit in equity against the
Railroad Commission of the state, during the pendency of which the
operation of the penalty provision could have been suspended by
injunction. Wadley Southern Ry. Co. v. Georgia, supra.
See also Allen v. St. Louis, Iron Mountain & Southern Ry.
Co., 230 U. S. 553
Rowland v. St. Louis & San Francisco R. Co.,
244 U. S. 106
St. Louis, Iron Mountain & Southern Ry. Co. v.
McKnight, 244 U. S. 368
the record shows 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
recognized as controlling.
Page 251 U. S. 66
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; St.
Louis, Iron Mountain & Southern Ry. Co. v. Waldrop,
Ark. 42, 45. 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
115 U. S. 523
"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 penalty to the aggrieved passenger require
that it 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 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
199 U. S.
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
That this clause places a limitation upon 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
limitation only where the penalty
Page 251 U. S. 67
prescribed is so severe and oppressive as to be wholly
disproportioned to the offense, and obviously unreasonable.
Coffey v. Harlan County, 204 U. S. 659
204 U. S. 662
Seaboard Air Line Ry. v. Seegers, 207 U. S.
, 207 U. S. 78
Waters-pierce Oil Co. v. Texas, 212 U. S.
, 212 U. S. 111
Collins v. Johnston, 237 U. S. 502
237 U. S.
Of this penalty and the need for it, the supreme court of the
"It is commonly known that carriers are not prone to adhere
uniformly to rates lawfully prescribed, 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.
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
MR. JUSTICE McREYNOLDS dissents.