recover all actual damages followed. Of course, this socalled "inherent right" to annul a contract with the consequent right to recover all actual damages as for a complete breach, are rights supposed to arise not out of any express agreement but out of the common law. But the assumption that aside from clause A an agreement to begin such a work on a particular day would be such a vital term of the contract as to justify the other party in an immediate annulment if the work was not so begun is seriously challenged. The vital character of time to the contract would depend upon its nature and particular circumstances. These might be such that time would not be of the essence of the contract at all. Any resort to the contract here involved as making time the essence of the agreement must include clause A, which expressly determines the consequences. Such an appeal to the contract would naturally result detrimentally to the argument here made, since the contract while making time vital provides also for the consequence of a breach in that respect. The benefit and the burden of clause A must hang together.

But we need not deal with the consequences as if clause A had been omitted. The right might have been inherent or not so vital as to justify the rigor of annulment. Both parties elected to deal with the matter by express stipulation and that should be and is the end of it. In such a situation there would be no justice in straining the contract for a construction which would limit its application to cases where the right of annulment would not exist without it. This contract was prepared in advance of the bidding by the United States. The bidder was required to dig with strict reference to its terms. One term was that the work should begin with a plant and force of definite capacity on or before a particular day. Another was that if this term was not complied with the United States might annul the contract and that as a consequence

of such annulment all money earned under it should be forfeited. This forfeiture is not made dependent upon the existence of any actual damage. Thus damages were by stipulation liquidated. That such damages may be in this instance inadequate may be true, but the fact affords no ground for frittering away the agreement by fanciful distinctions which never entered the head of either party to it.

The plain purpose was to obtain for the United States the right to take the contract from a bidder who should break his agreement at its threshold and let the work to another, possibly for a better price. At any rate the right to annul for a breach in respect of the time of beginning was a valuable right, and for it the Government stipulated and liquidated the damages in the event of its exercise. The contractor would not only lose his contract, but also would forfeit everything due him. The agreement settled the right and all the consequences of its exercise.

There is nothing in the case of United States v. O'Brien, supra, which would justify the limitation that the United States would now have us place upon this plain provision of the contract. The contract in that case was a dredging contract. The work was to begin on a day named and be completed on another. The contract was according to form 19 and included the two clauses, A and B, above set out. The work was begun on time. The first member of clause A was therefore eliminated from any consideration. The dredging did not progress to the satisfaction of the engineer in charge who elected to stop the contractor from going on, when, confessedly, time enough remained to complete the work within contract time. The United States, under these circumstances, sought to recover the excess cost of completing the work, but this court held that such excess cost could only be recovered under clause B for a failure to complete according to the terms of the agreement. There had been no breach of the agreement,

as time remained to finish the work had the contractor not been prohibited from going on because the engineer in charge was not satisfied with the progress of the job. But the right to annul for the latter reason was a right conferred by clause A, with the damages limited as therein provided. The United States was precluded from the rule of damages prescribed by clause B, and being forced to justify under clause A was held bound by the limitation of that clause.

The right to annul is expressly conferred by clause A for a failure to begin on the stipulated day. The United States resorted to that clause for its authority and pursued the procedure therein pointed out. It is plainly bound by the limitation of damages therein prescribed.

For the error in not so confining the recovery, the judgment is reversed and a new trial awarded.

ATLANTIC COAST LINE RAILROAD COMPANY v. STATE OF GEORGIA.

ERROR TO THE COURT OF APPEALS OF THE STATE
OF GEORGIA.

No. 24. Argued April 17, 1913.-Decided June 8, 1914.

The existence of difference of opinion as to which is the best form of necessary safety device does not preclude the exercise of legislative discretion; and so far as the question is simply one of expediency the legislature is competent to decide it. The criticism that a police statute requires a carrier to comply with conditions beyond its control and, therefore, deprives it of its property without due process of law, is not open in this court if the state court has construed the statute as not so requiring the carrier. The state court having held that the term "railroad company" as used

234 U. S.

Argument for Plaintiff in Error.

in a state police statute is inclusive of natural persons operating a railroad and that the statute is not unconstitutional as denying equal protection of the law to railroad corporations because it does not include natural persons, this court concurs in that view.

A state police statute requiring railroad companies to use a specified safety device is not unconstitutional as denying equal protection of the laws because it does not affect receivers operating railroads; in view of the temporary and special character of a receiver's management, the classification is reasonable and proper.

In the absence of legislation by Congress, the States may exercise their powers to secure safety in the physical operation of railroad trains within their territory, even though such trains are used in interstate

commerce.

In regulating interstate trains as to matters in regard to which Congress has not acted, a State may not make arbitrary requirements as to safety devices; but its requirements are not invalid as interfering with interstate commerce because another State, in the exercise of the same power, has imposed, or may impose, a different requirement. Congress may, whenever it pleases, make the rule and establish the standard to be observed on interstate highways.

None of the safety appliance statutes enacted by Congress relate to or regulate locomotive headlights.

The intent of Congress to supersede the exercise of the police power of the States in respect to a subject on which it has not acted cannot be inferred merely from the fact that such subject has been investigated under its authority.

The statute of Georgia of 1908, Civil Code, §§ 2697, 2698, requiring railroad companies to use locomotive headlights of specified form and power, is not unconstitutional either as a denial of equal protection of the law, as deprivation of property without due process of law, or as an interference with interstate commerce.

135 Georgia, 545, affirmed.

THE facts, which involve the constitutionality of the Locomotive Headlight Law of Georgia, are stated in the opinion.

Mr. Henry L. Stone, with whom Mr. Alfred P. Thom, Mr. Alexander Hamilton and Mr. Robert C. Alston were on the brief, for plaintiff in error:

The act known as the Georgia Headlight Law is viola

Argument for Plaintiff in Error.

234 U. S.

tive of the due process clause of the Fourteenth Amendment. Addyston Pipe Co. v. United States, 175 U. S. 211; Allgeyer v. Louisiana, 165 U. S. 578, 589; Baxendale v. Railway Co., 5 C. R. (N. S.) 336; Bement v. National Harrow Co., 186 U. S. 70; Bonnett v. Vallier, 17 L. R. A. (N. S.) 492; Bracewell Coal Co. v. People, 147 Illinois, 66; C. H. & D. R. Co. v. Bowling Green, 41 L. R. A. (Ohio) 422; Cleveland, C., C. & St. L. Ry. Co. v. Connersville, 37 L. R. A. (Ind.) 175; Cleveland v. Clements Bros. Co., 59 L. R. A. (Ohio) 775; Dobbins v. Los Angeles, 195 U. S. 223; Elliott on Railroads, 2d ed., § 668; Id., Vol. 2, Note, p. 24; Harbison v. Knoxville Iron Co., 103 Tennessee, 421; Health Department v. Trinity Church, 145 N. Y. 32, 41; Houston & Tex. Cent. R. R. Co. v. Mayes, 201 U. S. 321, 329; Hollister v. Benedict Mfg. Co., 113 U. S. 59; Int. Com. Comm. v. Balt. & Ohio R. R. Co., 43 Fed. Rep. 52; Int. Com. Comm. v. Chicago G. West. Ry., 209 U. S. 108; Lawton v. Steele, 152 U. S. 133; McLean v. Arkansas, 211 U. S. 547; Mo. Pac. R. Co. v. Humes, 115 U. S. 512; Nat. Phonograph Co. v. Sehlegel, 128 Fed. Rep. 733; Ritchie v. People, 154 Illinois, 98, 29 L. R. A. 79; Shelbyville v. C., C., C. & St. L. Ry. Co., 146 Indiana, 66; United States v. Palmer, 128 U. S. 262, 271; Welch v. Swasey, 214 U. S. 105; Wisconsin v. Kreutzberg, 58 L. R. A. 748, 751.

The act violates the equal protection clause of the Fourteenth Amendment. Cotting v. Kansas City Stock Yards, 183 U. S. 79; Dobbins v. Los Angeles, 195 U. S. 223; Gulf Col. & S. Fe R'y Co. v. Ellis, 165 U. S. 150; Harding v. People, 43 N. E. Rep. 624; Henderson v. New York, 92 U. S. 259; Lochner v. New York, 198 U. S. 45; Los Angeles v. Hollywood Cemetery, 57 Pac. Rep. 153; Yick Wo v. Hopkins, 118 U. S. 356.

The act is unenforcible and void under the commerce clause of the Federal Constitution and because Congress by its legislation has preëmpted and occupied the field of regulation of the same subject-matter.