219 U. S.

Argument for Plaintiff in Error.

were rendered prior to the passage of the Hepburn Bill of June 29, 1906, and, of course, apply with still greater force since that act took effect. The power of Congress to regulate commerce is paramount and is unrestrained, except by the limitations in the Constitution upon its authority. Gibbons v. Ogden, 9 Wheat. 1; Addyston Pipe & Steel Co. v. United States, 175 U. S. 228; Scranton v. Wheeler, 179 U. S. 162. The only limitation prescribed by the Constitution is that the laws enacted by Congress to carry into execution this power shall be necessary and proper. That is a question wholly and exclusively within the province of Congress to determine. Kentucky Bridge Co. v. L. & N. R. R. Co., 34 Am. & Eng. R. Cas. 630; S. C., 37 Fed. Rep. 567. As to what is a vested right in the constitutional sense, see Cooley, Const. Lim., 7th ed., 509; Bradford v. Jenkins, 41 Mississippi, 328, 335. Due process of law as used in the Fifth Amendment includes not only the established mode of procedure in the courts, but also legislative acts within constitutional powers. Cooley, Const. Lim., 7th ed., 502; 3 Words and Phrases, 2228. Where no exception is made in terms, none will be made by mere implication or construction. Rhode Island v. Massachusetts, 12 Pet. 892; Dartmouth College v. Woodward, 4 Wheat. 494. For the court to go beyond that limitation is not to construe, but to legislate. See Armour Packing Co. v. United States, 209 U. S. 56; Endlich.on Statutes, §§ 4-8; Mottley v. L. & N. R. R. Co., 150 Fed. Rep. 406; United States v. Dickson, 15 Pet. 141-163; United States v. Wells-Fargo Express Co., 161 Fed. Rep. 606.

Interstate passenger transportation must be paid for in money. Decisions of Interstate Commerce Commission relative to Railroad Passes and Free Transportation, Sen. Doc., No. 226, 60th Cong., 1st Sess., February 6, 1908, p. 18; Conference Rulings of Interstate Commerce Commission, December 28, 1909, p. 57; C., B. & Q. Ry.

Argument for Defendants in Error.

219 U.S.

Co. v. United States, 209 U. S. 90; Un. Pac. Ry. Co. v. Goodridge, 149 U. S. 690, 691; Gulf, Colo. &c. Ry. Co. v. Hefley, 158 U. S. 98; Int. Comm. Comm. v. Chesapeake & Ohio Ry. Co., 200 U. S. 361; Texas & Pac. Ry. Co. v. Mugg, 202 U. S. 242; Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 439; Poor Grain Co. v. C., B. & Q. Ry. Co., 12 I. C. C. Rep. 418, 469; United States v. Chicago, I. & L. Ry. Co., 163 Fed. Rep. 114; United States v. Atchison, T. & S. F. Ry. Co., 163 Fed. Rep. 111; Atchison, T. & S. F. Ry. Co. v. United States, 170 Fed. Rep. 250; State v. Martyn, 117 N. W. Rep. 719; S. C., 23 L. R. A. (N. S.) 217; McNeill v. Durham & C. Ry. Co., 132 No. Car. 510.

Mr. Lewis McQuown and Mr. Clarence U. McElroy for defendants in error:

The act of June 29, 1906, does not cover this case and Congress did not intend it to. The sole purpose of the act in this respect was to forbid, under penalty, all carriers from giving free passes, and to forbid, under like penalty, every person not in the excepted class, from using such free passes. The only argument needed is to show that this provision does not touch the facts of this case. Section 6 of the act of 1906 does not cover this case. It was not the legislative intent to fine a carrier from $1,000 to $20,000 for issuing a ticket that had been paid for. If Congress had intended the act to embrace a case like "this, it would have said so, and should have said so, and the fact that it did not say so, is evidence conclusive that it had no such purpose. The act of 1906 was never intended to reach a case like the one at bar, and this construction is not only consonant with sound principle, with common sense, and with justice, but it is believed to be fully justified by the facts. See United States v. Kirby, 7 Wall. 486. All general terms in the statutes should be limited in their application so as not to lead to injustice, oppression or unconstitutional operation, if that be possi

ble. It will be presumed that the exceptions were intended which would avoid results of that character. Carlisle v. United States, 16 Wall. 153; Chew Heong v. United States, 112 U. S. 555; Holy Trinity Church v. United States, 143 U. S. 457; Bate Refrigerator Co. v. Sulzberger, 157 U. S. 37; Market Co. v. Hoffman, 101 U. S. 116; Brewer's Lessee v. Bloucher, 14 Pet. 78; Auffm'ordt v. Rasin, 102 U. S. 620; Cook v. United States, 138 U. S. 181.

The act of June 29, 1906, would not be constitutional if applied to a case like the one at bar and this court could not enforce such a law. Congress has vast power. It is a potent arm of the Government, but it is not omnipotent. When a private citizen has made a lawful contract, has executed that contract fully so far as his obligation is concerned, and has parted with his money or property on the faith of the inviolability of his contract, that contract cannot be confiscated, simply because Congress has power to regulate commerce between the States. Wilkerson v. Leland, 2 Pet. 657; Osborne v. Nicholson, 13 Wall. 654; Railroad Co. v. Richmond, 19 Wall. 584.

MR. JUSTICE HARLAN delivered the opinion of the court.

As the result of a collision in Kentucky of railroad trains belonging to the Louisville and Nashville Railroad Company, which operated various lines extending through that Commonwealth as well as into Tennessee and other States, the plaintiffs Mottley and wife received serious personal injuries. The collision, it is alleged, was caused by the gross carelessness and negligence of the agents and servants of the railroad company.

After the collision the plaintiffs and the company on the second of October, 1871, entered into a written agreement of which the following is a copy:

"The Louisville & Nashville Railroad Company in consideration that E. L. Mottley and wife, Annie E. Mottley,

have this day released said company from all damages or claims for damages for injuries received by them on the seventh day of September, 1871, in consequence of a collision of trains on the railroad of said company at Randolph's Station, Jefferson County, Ky., hereby agrees to issue free passes on said railroad and branches now existing or to exist, to said E. L. Mottley and Annie E. Mottley for the remainder of the present year and thereafter to renew said passes annually during the lives of said Mottley and wife or either of them."

The railroad company adhered strictly to this agreement for many years, but finally refused further to perform it on the ground that the act of Congress of June 29, 1906, amendatory of the act regulating commerce, approved February 4, 1887, made its enforcement illegal. Thereupon Mottley and wife brought suit in the Circuit Court of the United States for the Western District of Kentucky to enforce the agreement and obtained a decree in their favor. 150 Fed. Rep. 406. But upon a direct appeal to this court that decree was reversed and the case was remanded with directions to dismiss the suit for want of jurisdiction. L. & N. R. R. v. Mottley, 211 U. S. 149; Metcalfe v. Watertown, 128 U. S. 586; Tennessee v. Union Planters' Bank, 152 U. S. 454, 459. The grounds upon which the Federal court was held to be without jurisdiction are not important here.

· The present action was brought in the Circuit Court of Warren County, Kentucky. The relief sought was that the defendant company be required specifically to execute the above agreement by issuing passes to the plaintiffs for the year 1909 and for every year thereafter so long as the plaintiffs should each live, over all its roads in and out of Kentucky.

The railroad company resists any judgment that would compel it further to perform the agreement sued on. It bases its defense mainly on the commerce act of Congress

of June 29, 1906, which became effective August 28, 1906, 34 Stat. 838, Pt. I, Res. No. 47. By that statute Congress, among other things, provided:

"SEC. 1. No common carrier subject to the provisions of this act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers," except to certain specified persons, the plaintiffs not being within any of the excepted classes.

"SEC. 6. No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs. Feb. 4, 1887, c. 104, 24 Stat. 379; June 29, 1906, 34 Stat. 584, 586, Pt. II, c. 3591.

The act of June 29, 1906, regulating commerce and enlarging the powers of the Interstate Commerce Commission, made its provisions applicable to "any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad from one State or Territory of the United States or the District of Columbia, to any other State or Territory of the United States or the District of Columbia, etc.;" and in this respect it has not