datory or merely permissive. In Nebraska it is held that a street railway company cannot remove part of its lines and discontinue service thereon without first obtaining authority from the public service commission.94 So far as a gas company is concerned, its right, under a particular franchise, to withdraw from public service, was recognized in Ohio,95 and in Kansas it is held that an abutting owner cannot object to the removal of water mains from certain streets where public necessity no longer requires their continuance.96 But the continued operation of a water supply plant by a city may, in a proper case, be compelled.97

§ 4424. Requiring extensions of service. While companies furnishing gas, water, electricity or telephone service may be compelled to extend their service,98 as hereafter noticed in connection with regulations of particular companies,99 a different rule applies to railroad companies, so far as an extension of existing lines is concerned.1

§ 4425. Regulations imposing penalties-In general. The power to regulate includes the power to provide for the enforcement of the regulation by proper fines or other penalties. Thus, power to regulate railroad companies includes power to fix a penalty for the violation of such regulations, and statutes providing penalties for disobedience of orders of the public service commission are constitutional. Statutes imposing double liability upon railroad companies for damages from fire from operation of its trains, or for killing stock on the right of way due to failure to fence the track, are constitutional.5

94 Herpolsheimer Co. V. Lincoln Traction Co., 96 Neb. 154, 147 N. W. 206, 1114.

95 East Ohio Gas Co. v. Akron, 81 Ohio St. 33, 26 L. R. A. (N. S.) 92, 18 Ann. Cas. 332, 90 N. E. 40.

96 Asher V. Hutchinson Water, Light & Power Co., 66 Kan. 496, 500, 61 L. R. A. 52, 71 Pac. 813.

97 Fellows v. Los Angeles, 151 Cal. 52, 64, 90 Pac. 137.

98 Such companies must be prepared to extend their service to meet the reasonable demands of the growing country. 1 Wyman, Public Service Corporations, § 797.

99 See 88 4436-4463, infra.

1 See § 4437, infra.

2 Detroit v. Ft. Wayne & B. I. Ry. Co., 95 Mich. 456, 35 Am. St. Rep. 580, 20 L. R. A. 79, 54 N. W. 958.

3 State v. Kansas City, Ft. S. & G. R. Co., 32 Fed. 722; State v. Missouri Pac. Ry. Co., 149 Mo. 104, 50 S. W. 278; Parks v. Nashville, C. & St. L. Ry. Co., 13 Lea (Tenn.) 1, 49 Am. Rep. 655.

4 Wadley Southern R. Co. v. State, 137 Ga. 497, 73 S. E. 741.

5 Jensen v. South Dakota Cent. R. Co., 25 S. D. 506, 35 L. R. A. (N. S.) 1015 with note, Ann. Cas. 1912 C 700, 127 N. W. 650.

Statutes making railroad companies liable for attorney's fees have been held not a denial of the equal protection of the laws, and the same is true as to statutes directed only against common carriers or insurance companies.8

Statutes imposing upon railroad companies absolute liability, regardless of negligence, for fires set by their locomotives, are held constitutional, but statutes making railroad companies liable absolutely, without proof of negligence, for cattle killed, are held unconstitutional where there is no breach of any statutory duty to fence.10

A statute suspending the right of a turnpike company to collect tolls because of failure to keep its road in repair does not take property without due process.11 But a statute making railroad companies liable for all expenses of the coroner and his inquest, and the burial of all persons who may die on the cars, or who may be killed by collision, or other accident occurring to such cars, or otherwise, is unconstitutional so far as it attempts to make such companies liable in cases where they have violated no law, or have been guilty of no negligence on their part.12

§ 4426.

Regulations imposing penalty for failure of company to pay claim. Statutes imposing a penalty upon carriers for failure to pay claims against them, in regard to shipments, within a specified time, have generally been upheld as constitutional; 18 but they

6 Chicago, R. I. & P. R. Co. v. Davis, 114 Ark. 519, 170 S. W. 245; Peoria, D. & E. R. Co. v. Duggan, 109 Ill. 537, 50 Am. Rep. 619; Terre Haute & L. R. Co. v. Salmon, 161 Ind. 131, 67 N. E. 918; Hardwick Farmers' Elevator Co. v. Chicago, R. I. & P. R. Co., 110 Minn. 25, 19 Ann. Cas. 1088, 124 N. W. 819, rev'g on other grounds 226 U. S. 426, 46 L. R. A. (N. S.) 203, 57 L. Ed. 284. See also Texas statute as construed in Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412, 58 L. Ed. 1377, L. R. A. 1915 E 942 with note.

See also 4408, supra.

7 Chicago, B. & Q. R. Co. v. Feintuch, 191 Fed. 482; Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 20 Ann. Cas. 1047, 52 So. 377.

8 Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 124 S. W. 764, 123 S. W. 384.

13

9 Baltimore & O. R. Co. v. Kreagar, 61 Ohio St. 312, 56 N. E. 203; Mobile Ins. Co. v. Columbia & G. R. Co., 41 S. C. 408, 44 Am. St. Rep. 725, 19 S. E. 858; Jensen v. South Dakota Cent. R. Co., 25 S. D. 506, 35 L. R. A. (N. S.) 1015 with note, Ann. Cas. 1912 C 700, 127 N. W. 650.

10 Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662, 27 L. R. A. 263, 46 Am. St. Rep. 92, 13 So. 602; Denver & R. G. Ry. Co. v. Davidson, 2 Colo. App. 443, 31 Pac. 181. But see Jensen v. South Dakota Cent. R. Co., 25 S. D. 506, 35 L. R. A. (N. S.) 1015 with note, Ann. Cas. 1912 C 700, 127 N. W. 650.

11 Norfolk & S. Turnpike Co. v. Virginia, 225 U. S. 264, 56 L. Ed. 1082, Virginia statute.

12 Ohio & M. R. Co. v. Lackey, 78 Ill. 55, 20 Am. Rep. 259.

13 Yazoo & M. Val. R. Co. v. Jack

do not apply to interstate shipments since the passage of the Carmack Amendment of the Interstate Commerce Law in 1906,14 for the reason that the Carmack Amendment has superseded all state regulations in regard to claims as to interstate shipments.15

Statutes authorizing double damages and a recovery of attorney's fees, or merely the latter, against railroad companies for failure to pay for live stock killed within a certain time have been upheld as not denying the equal protection of the laws.16

On the other hand, the requiring the payment of double damages or an attorney's fee, or both, for failure to pay, within a certain number of days, a demand which turns out to be excessive, constitutes a taking of property without due process of law.17 So a statute imposing double liability in case of failure to offer a sum equal to what the jury afterwards finds the claimant entitled to, is invalid.18

§ 4427. Unreasonable penalties. A statute is unconstitutional as a denial of the equal protection of the laws and as a taking without

son Vinegar Co., 226 U. S. 217, 57 L. Ed. 193; Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 52 L. Ed. 108, aff'g 73 S. C. 71, 121 Am. St. Rep. 921, 52 S. E. 797; Southern R. Co. v. Lowe, 139 Ga. 362, 77 S. E. 44; Riskin v. Great Northern R. Co., 126 Minn. 138, Ann. Cas. 1915 D 823, 147 N. W. 960; Mobile & O. R. Co. v. Brandon, 98 Miss. 461, 42 L. R. A. (N. S.) 106 with note, 53 So. 957.

A statute imposing a penalty upon common carriers for failure to settle claims for lost or damaged freight in shipment within the state within a reasonable specified period is not repugnant to either the due process of law or the equal protection clause of the constitution. Yazoo & M. Val. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 57 L. Ed. 193, statute of Mississippi.

14 Farmers' Elevator Co. of Lansford, North Dakota v. Great Northern R. Co., 131 Minn. 152, 154 N. W. 954; Blalock Hardware Co. v. Seaboard Air Line R. Co., 170 N. C. 395, 86 S. E. 1025; Trakas v. Southern R. Co., 102 S. C. 211, 86 S. E. 492; J. S. Pink

ussohn Cigar Co. v. Clyde S. S. Co., 101 S. C. 429, 85 S. E. 1060. But see Mobile & O. R. Co. v. Greenwald & Champenois, 104 Miss. 417, L. R. A. 1917 B 924, 61 So. 426, holding such a statute not an interference with interstate commerce.

15 Charleston & W. C. R. Co. v. Varnville Furniture Co., 237 U. S. 597, 59 L. Ed. 1137, Ann. Cas. 1916 D 333, rev'g 98 S. C. 63, 79 S. E. 700.

16 Kansas City Southern R. Co. v. Anderson, 233 U. S. 325, 58 L. Ed. 983, aff'g 104 Ark. 500, 149 S. W. 58; St. Louis, I. M. & S. R. Co. v. Cone, 111 Ark. 309, 163 S. W. 1170; Atlantic Coast Line R. Co. v. Perry, 69 Fla. 133, 67 So. 639.

17 St. Louis, I. M. & S. R. Co. v. Wynne, 224 U. S. 354, 56 L. Ed. 799, 42 L. R. A. (N. S.) 102 with note, followed in Stupeck v. Union Pac. R. Co., 200 Fed. 192. But see Mobile & O. R. Co. v. Brandon, 98 Miss. 461, 42 L. R. A. (N. S.) 106 with note, 53 So. 957.

18 Chicago, M. & St. P. R. Co. v. Polt, 232 U. S. 165, 58 L. Ed. 554, rev'g 26 S. D. 378, 128 N. W. 472.

due process where it only allows a hearing in the courts upon a claim of the unconstitutionality of regulating orders at the risk, if mistaken, of being subjected to enormous penalties, resulting in the possible confiscation of the whole property of the corporation.19 So the imposing a liability of $500 for every charge by a railroad in excess of the rates fixed by statute, without regard to the actual damages, is a taking of property without due process.20 On the other hand, penalties which are so unreasonable and severe as to be an unconstitutional denial of due process of law will not render a rate statute unconstitutional, if they are separable.21

There is no doubt as to the power of the state to prescribe a penalty for violation of its regulations, heavy enough to secure obedience to the regulations (1) after they have been found to be lawful by the courts, or (2) after the corporation has had ample opportunity to test the validity of the regulations and has failed to do so.22 On the other hand, while the power to impose reasonable penalties is conceded, the imposition of a heavy penalty for violation of regulations, before their validity has been determined or opportunity has been accorded to review them, is unconstitutional, since "if a statute could constitutionally impose heavy penalties for violation of commands of such disputable and uncertain legality the result inevitably would be that the carrier [or other corporation] would yield to void orders, rather than risk the enormous cumulative or confiscatory punishment that might be imposed if they should thereafter be declared to be valid.'' 23

§ 4428. Regulations as to employees. Regulations of corporations in regard to its rights and liabilities as between it and its employees are in no way peculiar to corporation law, although such regulations are sometimes made applicable only to corporations or particular kinds of corporations, so as to involve the question whether they deny such corporations the equal protection of the laws.24 Suffice it to

19 Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Van Dyke v. Geary, 218 Fed. 111.

But a penalty of a fine of $100 or 30 days in jail is not so excessive or unreasonable as to come within the rule. Portland Railway, Light & Power Co. v. Portland, 210 Fed. 667, 670.

20 Missouri Pac. R. Co. v. Tucker, 230 U. S. 340, 348, 57 L. Ed. 1507.

21 Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 58 L. Ed. 229, aff'g 186 Fed. 176.

22 Wadley Southern Ry. v. Georgia, 235 U. S. 651, 667, 59 L. Ed. 405, aff'g 137 Ga. 497, 73 S. E. 741, where this question is discussed at length.

23 Wadley Southern R. Co. v. Georgia, 235 U. S. 651, 662, 59 L. Ed. 405. aff'g 137 Ga. 497, 73 S. E. 741. 24 See 88 4403-4415, supra.

merely say in this connection that it is now well settled that the police power extends, in a proper case, to the regulation of the number of hours of labor,25 especially in the case of women; 26 to the fixing the time (as by requiring weekly or semimonthly payment of wages) and medium (as by requiring payment in money and not in scrip) of payment of wages; 27 and to provisions as to payment of wages on the discharge of an employee or his abandonment of the work. So statutes making railroad companies liable to employees injured through the negligence of the company, and abolishing such defenses as the fellow-servant rule or the assumption of risk rule or the like are almost invariably held constitutional.28 On the other hand, a Texas statute prohibiting any person from acting as a conductor on a railroad train without having for two years prior thereto worked as a brakeman or conductor of a freight train and prescribing no other classifications, was held unconstitutional.29

§ 4429. Amount of wages. It has always been assumed that the police power does not extend to the regulations of wages of em. ployees,30 although the constitutionality of minimum wage laws as enacted in several of the states has been sustained. Furthermore, the Supreme Court of the United States has recently upheld the 1916 Act of Congress enacted to prevent a nation-wide strike of railroad employees. It will be remembered that President Wilson proposed arbitration which the employees rejected; that he then suggested the eight-hour standard of work and wages which the employers rejected; that thereafter, a general strike throughout the whole country was fixed for an early day; and that under these circumstances, Congress

25 See 8 Labatt, Master and Servant (2nd Ed.), § 2831; Freund, Police Power, 316, 317; 3 McQuillin, Municipal Corporations, §981.

Regulations of the hours of service of railroad employees are a valid exercise of the police power. United States v. Kansas City Southern Ry. Co., 189 Fed. 471.

However, a statute limiting work to nine hours a day for "baggagemen, laborers, crossing-tenders and the like" has been held unconstitutional in Massachusetts. Com. v. Boston & M. R. R., 222 Mass. 206, 110 N.E. 264.

26 Muller v. Oregon, 208 U. S. 412, 52 L. Ed. 551, 13 Ann. Cas. 957.

27 See Freund, Police Power, §§ 319321; 8 Labatt, Master and Servant (2nd Ed.), §§ 2820, 2824.

28 Missouri Pac. R. Co. v. Castle, 224 U. S. 541, 56 L. Ed. 875, and see 8 Labatt, Master and Servant (2nd Ed.), §§ 2841-2861.

29 Smith v. Texas, 233 U. S. 630, 58 L. Ed. 1129, L. R. A. 1915 D 677, Ann. Cas. 1915 D 420. And see 8 Labatt, Master and Servant (2nd Ed.), § 2875.

But an Arizona statute requiring all flagmen on railroad trains to have at least one year's experience as brakemen was upheld in Simpson v. Geary, 204 Fed. 507.

30 See Freund, Police Power, § 318.