power of regulation extended to and em- | Neither does the regulation impose an unbraced contracts in restraint of trade between the states. It is obvious, from the many decisions of this court, that there is no such thing as absolute freedom of contract. Contracts which contravene public policy cannot be lawfully made at all; and the power to make contracts may in all cases be regulated as to form, evidence, and validity as to third persons. The power of government extends to the denial of liberty of contract to the extent of forbidding or regulating every contract which is reasonably calculated to injuriously affect the public interests. Undoubtedly the United States is a government of limited and delegated powers, but in respect of those powers which have been expressly delegated, the power to regulate commerce between the states being one of them, the power is absolute, except as limited by other provisions of the Constitution itself. Having the express power to make rules for the conduct of commerce among the states, the range of congressional discretion as to the regulation best adapted to remedy a practice found inefficient or hurtful is a wide one. If the regulating act be one directly applicable to such commerce, not obnoxious to any other provision of the Constitution, and reasonably adapted to the purpose by reason of legitimate relation between such commerce and the rule provided, the question of power is foreclosed. "The test of power," said Mr. Justice White, speaking for this court in the Employers' Liability Cases, cited above, "is not merely the matter regulated, but whether the regulation is directly one of interstate commerce, or is embraced within the grant [of power] conferred on Congress to use all lawful means necessary and appropriate to the execution of the power to regulate commerce." That a situation had come about which demanded regulation in the public interest was the judgment of Congress. The requirement that carriers who undertook to engage in interstate transportation, and as a part of that business held themselves out as receiving packages destined to places beyond their own terminal, should be required, as a condition of continuing in that traffic, to obligate themselves to carry to the point of destination, using the lines of connecting carriers as their own agencies, was not beyond the scope of the power of regulation. The rule is adapted to secure the rights of the shipper by securing unity of transportation with unity of responsibility. The regulation is one which also facilitates the remedy of one who sustains a loss, by localizing the responsible carrier. reasonable burden upon the receiving carrier. The methods in vogue, as the court may judicially know, embrace not only the voluntary arrangement of through routes and rates, but the collection of the single charge made by the carrier at one or the other end of the route. This involves frequent and prompt settlement of traffic *balances. The routing in a measure depends upon the certainty and promptness of such traffic balance settlements, and such balances have been regarded as debts of a preferred character when there is a receivership. Again, the business association of such carriers affords to each facilities for locating primary responsibility as between themselves which the shipper cannot have. These well-known conditions afford a reasonable security to the receiving carrier for a reimbursement of a carrier liability which should fall upon one of the connecting carriers as between themselves. But it is said that any security resulting from a voluntary agreement constituting a through route and rate is destroyed if the receiving carrier is not at liberty to select his own agencies for a continuance of the transportation beyond his own line. This is an objection which has no application to the present case. This action was for loss and damage arising from several distinct shipments to different places beyond the line of the plaintiff in error, who was the initial or receiving carrier. The presumption, from the absence of anything to the contrary in the record, is that the routing was over connecting lines with whom the plaintiff in error had theretofore made its own arrangements and rate. This record presents no question as to the right of the initial carrier to refuse a shipment designated for a point beyond its own line, nor its right to refuse to make a through route or joint rate when such route and rate would involve the continuance of a transportation over independent lines. We therefore refrain from any consideration of the large question thus suggested. The shipments involved in the present case were voluntarily received by an initial carrier who undertook to escape carrier's liability beyond its own line by a provision limiting liability to loss upon its own line. This was forbidden by the Carmack amendment, and any stipulation and condition in the *special receipt which contravenes the rule in question is invalid. Reduced to the final results, the Congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it receives property in one state, to be transported to a point in another, involving the use of a *205 20 *206 But it is said that the act violates the 5th Amendment by taking the property of the initial carrier to pay the debt of an independent connecting carrier whose negligence may have been the sole cause of the loss. But this contention results from a surface reading of the act, and misses the true basis upon which it rests. The liability of the receiving carrier which results in such a case is that of a principal for the negligence of his own agents. connecting carrier for some part of the way, | country essential to the safety, health, to have adopted such other carrier as its peace, good order, and morals of the commuagent, and to incur carrier liability nity."" throughout the entire route, with the right to reimbursement for a loss not due to his own negligence. The conditions which justified this extension of carrier liability we have already adverted to. The rule of the common law which treated a common carrier as an insurer grew out of a situation which required that kind of security for the protection of the public. To quote the quaint but expressive words of Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 909, when defending and applying the doct rine of absolute liability against loss not due to the act of God or the public enemy, "This rule," said he, "is a politick establishment contrived by the policy of the law for the safety of all persons the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing." If it is to be assumed that the ultimate power exerted by Congress is that of compelling co-operation by connecting lines of independent carriers for purposes of interstate transportation, the power is still not beyond the regulating power of Congress, since, without merging identity of separate lines or operation, it stops with the requirement of oneness of charge, continuity of transportation, and primary liability of the receiving carrier to the shipper, with the right of reimbursement from the guilty agency in the route. That there is some chance that this right of recoupment may not be always effective may be conceded without invalidating the regulation. If the power existed and the regulation is adapted to the purpose in view, the public advantage justifies the discretion exercised, and upholds the legislation as within the limit of the grant conferred upon Congress. Touching the range of legislative discretion of the states in respect to occupations or trades which are affected by a public use, this court, in Gundling v. Chicago, 177 U. S. 183, 188, 44 L. ed. 725, 728, 20 Sup. Ct. Rep. 633, 635, said: In substance Congress has said to such carriers: "If you receive articles for transportation from a point in one state to a place in another, beyond your own terminal, you must do so under a contract to transport to the place designated. If you are obliged to use the services of independent carriers in the continuance of the transit, you must use them as your own agents, and not as agents of the shipper." It is therefore not the case of making one pay the debt of another. The receiving* carrier is, as principal, liable not only for its own negligence, but for that of any agency it may use, although, as between themselves, the company actually causing the loss may be primarily liable. In Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 78, 52 L. ed. 108, 110, 28 Sup. Ct. Rep. 28, 30, legislation by the state of Georgia imposing a penalty on common carriers for failure to adjust damage claims within forty days was held to neither deny due process nor the equal protection of the law. Speaking by Mr. Justice Brewer, the court said of the reasonableness of the requirement and classification, that "the matter to be adjusted is one peculiarly within the knowledge of the carrier. It receives the goods and has them in its custody until the carriage is completed. It knows what it received and what it delivered. It knows what injury was done during the shipment, and how it was done. The consignee may not know what was in fact delivered at the time of the shipment, and "Unless the regulations are so utterly un- the shipper may not know what was dereasonable and extravagant in their nature livered to the consignee at the close of the and purpose that the property and personal transportation. The carrier can determine rights of the citizen are unnecessarily, and the amount of the loss more accurately and in a manner wholly arbitrary, interfered promptly and with less delay and expense with or destroyed without due process of than anyone else, and for the adjustment law, they do not extend beyond the power of loss or damage to shipments within the of the state to pass, and they form no sub-state forty days cannot be said to be an ject for Federal interference. As stated in Crowley v. Christensen, 137 U. S. 86, 34 L. The conclusion we reach in respect to the ed. 620, 11 Sup. Ct. Rep. 13: The posses- validity of the amendment has the support sion and enjoyment of all rights are subject of some well-considered cases. Among them to such reasonable conditions as may be we cite: Smeltzer v. St. Louis & S. F. R. deemed by the governing authority of the Co. 158 Fed. 649; Pittsburg, C. C. & St. L. unreasonably short length of time." *207 60%. R. Co. v. Mitchell (Ind.) 91 N. E. 735; | Atlantic Coast Line R. Co. v. RiversideLouisville & N. R. Co. v. Scott, 133 Ky. Mills, ante, 164. 724, 118 S. W. 992. The judgment included an attorneys' fee, taxed as part of the costs. The authority I [No. 286.] ary 3, 1911. N ERROR to the Court of Appeals of the Commonwealth of Kentucky to review a judgment which affirmed a judgment of the Henry Circuit Court in that commonwealth, in favor of the shipper, in an action against an interstate carrier for a loss on the line of a connecting carrier. Affirmed. for this is supposed to be found in the 8th Argued October 19, 20, 1910. Decided Janu section of the act to regulate commerce of February 4, 1887 (24 Stat. at L. pp. 379, 382, chap. 104, U. S. Comp. Stat. 1901, pp. 3154, 3159). The section reads as follows: "That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorneys' fee, to be fixed by the court in every case of recovery, which attorneys' fees shall be taxed and collected as part of the costs in the case." But that section applies to cases where the cause of action is the doing of something made unlawful by some provision of the act, or the omission to do something required by the act, and there is a recovery "of damages sustained in consequence of any such violation of this act," etc. The cause of action in the present case is not for damages resulting from "any violation of the provisions of this act." True, the plaintiff in error attempted by contract to stipulate for a limitation of liability to a loss on its own line, and in this action has defensively denied liability for a loss not occurring on its own line. But the cause of action was the loss of the plaintiff's property which had been intrusted to it as a common carrier, and that loss is in no way traceable to the violation of any provision of the act to regulate commerce. Having sustained no damage which was a consequence of the violation of the act, the section has no application to this case. The judgment was erroneous to this extent, and the provision for an attorneys' fee is stricken out, and the judgment thus modified is affirmed. (219 U. S. 209.) LOUISVILLE & NASHVILLE RAILROAD V. N. P. SCOTT. See same case below, 133 Ky. 724, 118 Si W. 990. Messrs. Charles H. Moorman, Joseph R. Lamar, Benjamin D. Warfield, and Henry L. Stone for plaintiff in error. Assistant to the Attorney General Kenyon as amicus curiæ. No counsel for defendant in error. * Mr. Justice Lurton delivered the opinion of the court: CONSTITUTIONAL LAW (§ 199*)-Ex POST FACTO LAWS-FORFEITING LAND TITLES. 1. The objection that the retrospective features of Ky. act of March 15, 1906, art. 3, forfeiting land titles for failure to This case is governed by the decision in list and pay taxes, make the law an ex For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 802. post facto one, is not valid, where such leg- 2. Due process of law in forfeiting lands to the state for failure to list and pay taxes for certain specified years is afforded by Ky. act of March 15, 1906, art. 3, under which a judicial proceeding is provided by which the owner of the title may have the taxes assessed, and, upon payment thereof, the forfeiture avoided, and such forfeiture is declared only after a judicial proceeding in which the owner of the title is sum moned and heard. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 893-896; Dec. Dig. § 284.*] CONSTITUTIONAL LAW (§ 308*)-DUE PROCESS OF LAW-FORFEITURE FOR NONPAYMENT OF TAXES-CUTTING DOWN STATUTE OF LIMITATIONS. 3. The forfeiture to the state for the benefit of actual occupants in adverse possession, which is provided for by Ky. act of March 15, 1906, art. 3, in case of the failure of the owner or claimant to list the lands and pay taxes thereon for certain specified years, is not lacking in due process of law because the effect is to cut down the period of limitation in which actions may be brought by the holders of the title to recover against adverse claimants. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 925; Dec. Dig. § 308.*] CONSTITUTIONAL LAW (§ 284*)-DUF PROCESS OF LAW-TAXATION FORFEITURE FOR BENEFIT OF ADVERSE OCCUPANT. 4. There is no denial of due process of law in the provisions of Ky. act of March 15, 1906, art. 3, under which the forfeiture of land titles to the state, as the result of proper proceedings and after due notice to the owner of the title, who is in default for payment of taxes, is to inure to the benefit of adverse claimants occupying and paying taxes upon the land, and not in default. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 833-896; Dec. Dig. § 284.*] COURTS (§ 396*) FEDERAL QUESTION WHEN RAISED IN TIME. 5. A Federal question first raised by a petition for rehearing in the highest state court is open for review in the Federal Supreme Court on writ of error to the state court, if that court considered such question in denying the petition. [Ed. Note.-For other cases, see Courts, Cent. Dig. 1080; Dec. Dig. § 396.*] CONSTITUTIONAL LAW (§ 284*)-DUE PROCESS OF LAW-FORFEITURE FOR NONPAYMENT OF TAXES JUDICIAL SALE. ants to whose benefit the forfeiture will accrue, where it is open to the defendant to show what parts of the tract are subject to sale, if less than the whole is to be sold. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. $$ 893-896; Dec. Dig. § 284.*] COURTS (§ 394*)-Scope of Review—QUESTION OF LOCAL LAW. 7. The dismissal of the petition of the owner, brought under Ky. act of March 15, 1906, art. 3, for the assessment and taxation of his lands to escape the forfeiture provided by that statute, because such petition did not contain a description of the land sufficient to identify it, involves no Federal question which can be reviewed by the Federal Supreme Court on writ of error to a state court, unless the ruling was so arbitrary and baseless as to amount to a deprivation of due process of law. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 394.*] CONSTITUTIONAL LAW (§ 229*) — EQUAL PROTECTION OF THE LAWS-FORFEITURE FOR NONPAYMENT OF TAXES. 8. The provisions for the forfeiture of land titles to the state for failure to list and pay taxes thereon for certain specified years, made by Ky. act of March 15, 1906, art. 3, do not deny the equal protection of the laws because, in the application of such statute, it can only meet conditions such as are embraced within the law in a part of the counties of the state. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 685; Dec. Dig. § 229.*] CONSTITUTIONAL LAW ($ 229*) PROTECTION OF THE LAWS-FORFEITURE FOR NONPAYMENT OF TAXES. EQUAL 9. Landowners who did not acquire their title until after the delinquencies had occurred cannot claim to have been denied the equal protection of the laws by the application to them of the provisions of Ky. act of March 15, 1906, art. 3, for the forfeiture of such lands to the state, because of the failure of the owners to list lands for taxation and pay the taxes thereon for certain specified years. [Ed. Note.-For other cases, see Constitutional 10. Requiring upon notice and hearing [Nos. 22, 47, 48.] 6. A judicial sale under Ky. act of March 15, 1906, art. 3, of lands forfeited to the state for failure to list and pay taxes for certain specified years, is not lacking in due process of law because, under such statute, it is not necessary that the petition for forfeiture shall point out and describe the Argued October 28 and 31, 1910. Decided parts of the tract held by adverse claim January 3, 1911. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes IN N ERROR to the Court of Appeals of | 15th day of September, 1901, 1902, 1903, the State of Kentucky to review a judg- the 1st day of September, 1904, and the 1st ment which affirmed a judgment of the day of September, 1905, and provides that Leslie Circuit Court, in that state, forfeit- if the owner or claimant, or those under ing certain land titles to the state for fail-whom he claims, have failed to list the land, ure to list and pay taxes thereon for certain specified years. Affirmed. Also or any part thereof, for taxation, as of said dates, or any of them, it shall be his duty N ERROR to the Court of Appeals of the to have the same assessed and listed for I state of to tucky to f fudge taxation as is provided in the act, as for ment which affirmed a judgment of the Letcher Circuit Court, in that state, dismissing the petition of a landowner for the assessment and taxation of his lands for certain specified years, to escape forfeiture to the state. Affirmed. Also each of said dates for which the assessment has been omitted, and to pay the taxes, interest, and penalties thereon. It is provided that the fact that the land has been listed for taxation, or the taxes paid thereon by another claimant, shall not relieve N ERROR to the Court of Appeals of the against the duty imposed by the act; and I state of Kentucky u review judgment if any tiny which affirmed a judgment of the Pike Circuit Court, in that state, forfeiting certain lands to the state for failure to list and pay taxes for certain specified years. Affirmed. See same case below, No. 22, 128 Ky. 610, 108 S. W. 931, 110 S. W. 398; No. 47, 127 Ky. 667, 106 S. W. 260, 108 S. W. 1138; No. 48, 33 Ky. L. Rep. 857, 111 S. W. 362. The facts are stated in the opinion. Messrs. Louis B. Wehle and William B. Dixon for plaintiff in error in No. 22. Messrs. J. W. M. Stewart, Z. T. Vinson, James Breathitt, James H. Jeffries, David W. Baird, John F. Hager, John H. | Holt and Aaron Kohn for defendant in error. Messrs. John G. Johnson, William Jackson Hendrick, Eugene M. Berard, James H. Hazelrigg, Samuel Howland Hoppin, and Hannis Taylor for plaintiff in error in Nos. 47 and 48. Messrs. David W. Baird, John F. Hager, J. W. M. Stewart, James Breathitt, Z. T. Vinson, John H. Holt, J. H. Jeffries, and Aaron Kohn for defendant in error. or claimant, or those under whom he claims, has failed to list the land for assessment and taxation, as of any three of said dates, or has failed to pay the taxes charged, or which should have been charged against him, or those under whom he claims, as the owner or claimant thereof upon said dates, for any three of the years for which said assessments were or should have been made, said owner and claimant and those under whom he claims are declared delinquent; and such failures, or either of them, shall be cause for forfeiture and transfer to the commonwealth of his said claim and title thereto, in a proceeding to be instituted for that purpose, as required in the act. But it is provided that the cause for forfeiture shall be extinguished if the owner or claimant, his heirs, representatives, or assigns, shall, within the time and in the manner provided in the article, cause the land to be assessed for taxation, and, on or before March 1, 1907, pay the taxes charged and which should have been charged against him, or against those under whom he claims, as the owner or claimant thereof, for each and all of said five years for which he or those under whom he claims * Mr. Justice Day delivered the opinion are delinquent, together with the interest of the court: These are writs of error to the court of appeals of the state of Kentucky, and involve the constitutionality of an act of the legislature of the state, passed March 15, 1906, entitled, "An Act Relating to Revenue and Taxation." Acts of 1906, pp. 88-248. Article 3 is brought in question in these cases. It is set forth in full in the opinion of the court of appeals of Kentucky in case No. 47. 127 Ky. 667, 106 S. W. 260, 108 S. W. 1138. Its salient features are: Section 1 of the article makes it the duty of every owner or claimant of land to pay the taxes which have been assessed, and which should have been assessed, against him, and those under whom he claims, as the owner or claimant* thereof, as of the and penalties provided by law in the case of the redemption of land sold for the nonpayment of taxes. *Section 2 provides for the ascertainment of the amount of taxes unpaid and the assessment required by the preceding section by a proceeding in the county court where the land lies, upon the application of the owner or claimant, by a petition filed in the court on or before January 1, 1907, in which the land sought to be charged shall be described, so as to be identified, and the years for which it was listed and the years for which the taxes were not paid shall be stated; in which petition shall also be stated the grant under which petitioner claims, if he derives title from a grant, and the instrument through or the manner in 143 *144 |