receiving clerk in failing to put the mes- [For other cases, see Telegraphs, II. in Digest Telegraphs thereby, in effect, sustaining the ground of the motion relating to want of equity in the bill. This decision, not being upon a jurisdictional issue, but on the merits, was only reviewable by appeal to the circuit court of appeals. De Rees 2. A provision on a telegraph blank v. Costaguta, supra, p. 173. The direct that the company will not be liable for negappeal to this court was therefore im-ligence unless the claim is presented within providently allowed. tion of claim. sixty days after the message is filed for transmission does not apply literally to a case where, through the company's fault, the injured person does not know of the message until the sixty days have passed. [For other cases, see Telegraphs, II. in Digest Sup. Ct. 1908.] [No. 300.] March 10, 1924. N WRIT of Certiorari to the United Prior to the Act of September 14, 1922, chap. 305, 42 Stat. at L. 837, Comp. Stat. § 1215a, Fed. Stat. Anno. Supp. 1922, p. 231, this would have resulted in the dismissal of the appeal for want of jurisdiction here. Smith v. McKay, supra, p. 359; O'Neal v. United States, 190 U. S. p. 38, 47 L. ed. 946, 23 Sup. Argued February 26 and 27, 1924. Decided Ct. Rep. 776, 14 Am. Crim. Rep. 303; Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 285, 46 L. ed. 913, 22 Sup. Ct. Rep. 681; De Rees v. Costaguta, supra, p. 174. That act, however, amends the Judicial Code by adding 238(a), providing, inter alia, that an appeal taken to this court in a wherein it should have been taken to a circuit court of appeals shall not, for such reason, be dismissed, but shall be transferred to that court for determination as if the appeal had been duly taken to it. As this appeal involves a question upon [281] the merits of the controversy which should have been taken to the circuit court of appeals for the eighth circuit instead of to this court, it must, pursuant to the statute, be transferred to that court. It is so ordered. case States Circuit Court of Appeals for the Ninth Circuit to review a judgment reversing a judgment of the District Court for the Southern Division of the District of Idaho in defendant's favor in an action brought to recover damages for negligent failure to transmit a telegram. Reversed. See same case below, 286 Fed. 478. The facts are stated in the opinion. Messrs. Francis Raymond Stark and Beverly L. Hodghead argued the cause, and, with Messrs. J. H. Richards, Oliver O. Haga, and Joseph L. Egan, filed a brief for petitioner: The message being in interstate commerce, the unrepeated-message clause on which the toll was based limited the liability of the company in case of nontransmission or nondelivery to the amount of such toll, whether the mes WESTERN UNION TELEGRAPH COM- sage failed at the initial point or else PANY, Petitioner, V. J. A. CZIZEK. (See S. C. Reporter's ed. 281-286.) Telegraphs limitation of liability applicability to negligence in putting message in course of transmission. 1. A provision on a blank for sending a telegram limiting the liability of the company for nondelivery of the message applies to nondelivery due to the negligence of the Note. On liability for failure to prop- | erly transmit or deliver a message pertaining to the negotiation for, or offer of, contract-see note to Western U. Teleg. Co. v. Sights, 42 L.R.A. (N.S.) 419. On validity of limitation of liability for unrepeated messages-see notes to Western U. Teleg. Co. v. Milton, 11 where on the company's line. Western U. Teleg. Co. v. Esteve Bros. & Co. 256 U. S. 566, 65 L. ed. 1094, 41 Sup. Ct. Rep. 584; Western U. Teleg. Co. v. Boegli, 251 U. S. 315, 64 L. ed. 281, 40 Sup. Ct. Rep. 167; Postal Teleg.Cable Co. v. Warren-Godwin Lumber Co. 251 U. S. 27, 64 L. ed. 118, 40 Sup. Ct. Rep. 69; Dickerson v. Western U. Teleg. Co. 114 Miss. 115, 74 So. 779; Norris v. Western U. Teleg. Co. 174 N. C. 92, 93 S. E. 465; Western U. Teleg. L.R.A. (N.S.) 561; Strong v. Western U. Teleg. Co. 30 L.R.A. (N.S.) 409; and Western U. Teleg. Co. v. Dant, L.R.A. 1915B, 685. On applicability of stipulation as to repeating telegraph messages to failure or delay in transmission or delivery-see note to Box v. Postal Teleg. Cable Co. 28 L.R.A. (N.S.) 566. Co. v. Orr, 60 Okla. 39, 158 Pac. 1139; Hartness v. Western U. Teleg. Co. 112 S. C. 11, 99 S. E. 759; Western U. Teleg. Co. v. Lee, 174 Ky. 210, 192 S. W. 70, Ann. Cas. 1918C, 1026, 15 N. C. C. A. 1; Western U. Teleg. Co. v. Hawkins, 198 Ala. 682, 73 So. 973. The measure of the telegraph company's liability under the valuation clause of the regulation, based upon the rate paid, became fixed when the message was deposited in the sending office and accepted for transmission; and it could not thereafter be varied by showing that the negligence complained of was gross negligence, or that it occurred at the initial point. Cultra v. Western U. Teleg. Co. 44 Inters. Com. Rep. 670; Bailey v. Western U. Teleg. Co. 97 Kan. 619, 156 Pac. 716; Western U. Teleg. Co. v. Schade, 137 Tenn. 214, 192 S. W. 924; Postal Teleg. Cable Co. v. Warren-Godwin Lumber Co. 251 U. S. 27, 64 L. ed. 118, 40 Sup. Ct. Rep. 69; Frederick v. Western U. Teleg. Co. 189 Iowa, 1338, 179 N. W. 934; Klotz v. Western U. Teleg. Co. 187 Iowa, 1355, 175 N. W. 825. The rule in the railroad and express cases in relation to similar valuation clauses relieves the company from liability beyond the value agreed upon as the basis of the rate, regardless of the degree of negligence; and the principle thus established necessarily requires the observance of the same rule in regard to telegraph companies engaged in inter state commerce. Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A. (N.S.) 257, 33 Sup. Ct. Rep. 148; Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 57 L. ed. 683, 33 Sup. Ct. Rep. 391; Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 57 L. ed. 690, 33 Sup. Ct. Rep. 397; Wells, F. & Co. v. NeimanMarcus Co. 227 U. S. 469, 57 L. ed. 600, 33 Sup. Ct. Rep. 267; Donlon Bros. V. Southern P. Co. 151 Cal. 763, 11 L.R.A. (N.S.) 811, 91 Pac. 603. The sixty-day clause in the regulations relieved the company from all liability, as no claim in writing was presented within sixty days after filing the message, or within sixty days after discovering that the message failed in transmission and delivery. Gardner v. Western U. Teleg. Co. 145 C. C. A. 399, 231 Fed. 405; Western U. Teleg. Co. v. Lee, 174 Ky. 210, 192 S. W. 70, Ann. Cas. 1918C, 1026, 15 N. C. C. A. 1; Postal Teleg.-Cable Co. v. Nichols, 16 L.R.A. (N.S.) 870, 89 C. C. A. 585, 159 Fed. 643, 14 Ann. Cas. 369. 621, 626, 46 L. ed. 358, 360, 22 Sup. Ct. Texas & P. R. Co. v. Reiss, 183 U. S. Rep. 252; Royal Ins. Co. v. Martin, 192 U. S. 149, 162, 48 L. ed. 385, 389, 24 Sup. Ct. Rep. 247; 37 Cyc. 1686; Beatty Lumber Co. v. Western U. Teleg. Co. 52 W. Va. 410, 44 S. E. 309. their liability in cases of gross or wilful Telegraph companies cannot limit negligence. U. S. 1, 17, 38 L. ed. 883, 890, 14 Sup. Primrose v. Western U. Teleg. Co. 154 Ct. Rep. 1098; Birney v. New York & W. Printing Teleg. Co. 18 Md. 358, 81 Am. Dec. 607; United States Teleg. Co. v. Gildersleve, 29 Md. 232, 96 Am. Dec. 519; Passmore v. Western U. Teleg. Co. 78 Pa. 238; Bowman & B. Co. v. Postal Teleg.-Cable Co. 290 Ill. 155, 124 N. E. 858, 251 U. S. 562, 64 L. ed. 415, 40 Sup. Ct. Rep. 342; Western U. Teleg. Co. v. Pierce Co. v. Western U. Teleg. Co. 177 Lange, 160 C. C. A. 556, 248 Fed. 656; N. Y. Supp. 598; Weld v. Postal Teleg.Cable Co. 210 N. Y. 77, 103 N. E. 957, 5 N. C. C. A. 992; United States Teleg. Co. v. Wenger, 55 Pa. 262, 93 Am. Dec. 751; Wann v. Western U. Teleg. Co. 37 Mo. 472, 90 Am. Dec. 395; Freschen v. Western U. Teleg. Co. 115 Misc. 289, 189 N. Y. Supp. 654; Leedy v. Western U. Teleg. Co. 130 Tenn. 547, 172 S. W. 278; Weld v. Postal Teleg. Cable Co. 199 N. Y. 88, 92 N. E. 418; Lothian v Western U. Teleg. Co. 25 S. D. 319, 126 N. W. 622; Preston v. Prather, 137 U. S. 604, 608, 609, 34 L. ed. 788-790, 11 Sup. Ct. Rep. 162, 1 Am. Neg. Cas. 599; Milwaukee & St. P. R. Co. v. Arms, 91 U. S. 489, 23 L. ed. 374. The time and manner in which respondent presented the claim were expressly sanctioned by the company, and the latter waived its presentation otherwise. Georgia, F. & A. R. Co. v. Blish Mill. Co. 241 U. S. 190, 60 L. ed. 948, 36 Sup. Ct. Rep. 541; Wheelock v. Postal Teleg. Cable Co. 197 Mass. 119, 83 N. E. 314, 14 Ann. Cas. 188; Western U. Teleg. Co. v. Heathcoat, 149 Ala. 623, 43 So. 120; Hill v. Western U. Teleg. Co. 85 Ga. 425, 21 Am. St. Rep. 166, 11 S. E. 874; Western U. Teleg. Co. v. Stratemeier, 6 Ind. App. 125, 32 N. E. 871; Hays v. Western U. Teleg. Co. 70 S. C. 16, 67 L.R.A. 481, 106 Am. St. Rep. 731, 48 S. E. 608, 3 Ann. Cas. 424; Western U. Teleg. Co. v. Fitts, 13 Ga. App. 248, 79 S. E. 156; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 689; New York L. Ins. Co. v. Eggleston, 96 U. S. 572, 577, 24 L. ed. 841, 843; Hartford L. Annuity Ins. Co. v. Unsell, 144 U. S. 439, 36 L. ed. 496, 12 Sup. Ct. Rep. 671; Talbott v. Metropolitan L. Ins. Co. 74 C. C. A. 26, 142 Fed. 694; McCollough v. Home Ins. Co. 155 Cal. 659, 102 Pac. 814, 18 Ann. Cas. 862; Fireman's Fund Ins. Co. v. Norwood, 16 C. C. A. 136, 32 U. S. App. 490, 69 Fed. 71. Mr. Justice Holmes delivered the opinion of the court: This is a suit against the Telegraph Company for failure to forward and deliver to the plaintiff a message from one Jones, found by the court below to have been acting as agent for the plaintiff in the matter. The district court found for the defendant, but the judgment was reversed by the circuit court of appeals (272 Fed. 223), and at a second trial, in deference to the circuit court of appeals, a judgment was entered for the plaintiff, which was affirmed (286 Fed. 478). Certiorari granted. 262 U. S. 739, 67 L. ed. 1208, 43 Sup. Ct. Rep. 700. low Will you take ninety dollars per 1. The company shall This telegram was an unrepeated message of the class known as night letter, and was not specially valued or paid for The plaintiff owned fifty shares of upon a value in excess of $50. It was stock in the Idaho National Bank at the duty of the receiving clerk, Margaret Boise, Idaho. Miller, vice president of Brown, to indorse her initials, [284] the the bank, was buying the stock with a filing time, and the amount of toll review to a merger. He talked with the ceived, and to place the message on plaintiff and told him that he would buy the sending hook for transmission. his stock, and that they would have no By inadvertence, although a compedifficulty in agreeing on the price. The tent clerk, she put it in a file of plaintiff told this to Jones, an attorney earlier messages instead of upon the at Boise, who owned fifteen shares, hook, and it was not sent. The next asked Jones to act for him, saying that day Jones's son inquired at the telethey would sell their stock together, and graph office for an answer, and being told told Miller that Jones would represent that there was none, asked if they had him. Later Miller called on Jones, and, sent the telegram, and was answered at Miller's request, Jones, on November "Yes." On December 3 he asked again 30, 1917, wrote on a Western Union form and was told that the plaintiff had re-directing the company to send it "sub-ceived the message. Miller was ready and ject to the terms on [283] back hereof" willing to buy the stock until December -the following telegram, addressed to 5, 1917, and the plaintiff testified that he the plaintiff at 5767 Shafter avenue, would have sold if he had received the Oakland, California, where the plaintiff lived: "Miller advises Idaho National sold to Pacific offers me ninety dollars per share otherwise wait year and chances of liquidation says if fails to get two thirds stock liquidation will fol telegram. Later the stock became worthless. The district court found that there was no gross negligence, but the circuit court of appeals distinguished between a failure to take the first step toward transmission and some later neglect, held را that the failure was not, and, as a matter of public policy, could not be, within the protection of the terms that we have stated, and held the company liable for $4,500, with interest at 7 per cent from June 18, 1918, on which day the plaintiff made a demand. effect upon the plaintiff's position. See Primrose v. Western U. Teleg. Co. 154 U. S. 1, 15, 38 L. ed. 883, 889, 14 Sup. Ct. Rep. 1098. With regard to the amount of the valuation, if it is too low now (Unrepeated Message Case, 61 Inters. Com. Rep. 541), it was reasonable in 1917 (Primrose v. Western U. Teleg. Co. supra; Unrepeated Message Case, 44 Inters. Com. Rep. 670). Whatever effect may be given to the judgment of the Commission in the later case, it was not intended to be retroactive. The rules prescribed by the Commission were to take effect on July 13, 1921. We have not adverted to the first clause of the exemptions, limiting liability to the amount received for sending the message. Obviously, this has a narrower scope than the valuation clause, and we should hesitate to hold that it exonerated the defendant in this case. Unrepeated Message Case, 61 Inters. Com. Rep. 541. The plaintiff, the respondent here, does not deny that he is bound by the terms that we have recited. That was assumed below and is established law. Western U. Teleg. Co. v. Esteve, 256 U. S. 566, 65 L. ed. 1094, 41 Sup. Ct. Rep. 584. Those terms apply as definitely to a nondelivery in consequence of a neglect or oversight at the first office as at any other. The moment that the message is received the contract attaches along with the responsibility, and the transit begins. We can perceive no legal distinction between that moment and the next, when 'the message is handed to a transmitting clerk, or that on which a copy is given to a boy at the further end. The hand that holds the [286] Another clause, not mentioned paper technically is that of the company, as yet, reads: "The company will but no more at the beginning than at the not be liable for damages or statuend; and as in fact it is that of servants, tory penalties in any case where the reasonable self-protection is allowed to claim is not presented in writing withthe [285] master against their neg- in sixty days after the telegram is lects. One such self-protection sanc- filed with the company for transmistioned by the decisions is a valuation sion." This could not be held to apply of the message, with liberty to the literally to a case where, through the fault sender to fix a higher value on pay-of the company, the plaintiff did not ing more for it. Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A. (N.S.) 257, 33 Sup. Ct. Rep. 148. The plaintiff finds no difficulty in valuing the message now. It was at least equally possible to value it when it was sent. See Western U. Teleg. Co. v. Esteve, 256 U. S. 566, 574, 65 L. ed. 1094, 1098, 41 Sup. Ct. Rep. 584; Postal Teleg.-Cable Co. v. Warren-Godwin Lumber Co. 251 U. S. 27, 64 L. ed. 118, 40 Sup. Ct. Rep. 69. know of the message until the sixty days had passed. It might be held to give the measure of a reasonable time for presenting the claim after the fact was known, in the absence of anything more. But here the plaintiff called on Hackett, the general manager at Boise, about February 14, 1918, as soon as he knew the facts. Directly after, he received a letter from Hackett, regretting the occurrence, and inclosing the amount paid by the plaintiff as toll. Three days later the When the message is valued, it may be plaintiff returned the check by letter, saydoubted whether the valuation can be af-ing, "An acceptance of this check on my fected by the intensity of the vitupera-part might be construed as a settlement tive epithet applied to an admitted fault. of this matter," so that the defendant Kirsch v. Postal Teleg. Cable Co. 100 Kan. 250, 252, 164 Pac. 267. At all events, something more would have to be shown than is proved here to take the case out of the general rule. The act of the receiving clerk cannot reasonably be supposed to have been more than a momentary inadvertence. It was not a wilful wrong. The answers to the inquiries were probably the natural consequence of the first error, and the second answer probably was too late to have had any 68 L. ed. then had written notice that a claim was made. There was further communication. Mr. Justice McKenna dissents. 685 4. A provision of a statute inherently unobjectionable cannot be deemed separable unless it appears both that, standing alone, legal effect 'can be given to it, and that the legislature intended that provision to stand in case others included in the act and held bad should fall. [For other cases, see Statutes, II. b, c, e, 1, g, in Digest Sup. Ct. 1908.] Statutes declaration as to validity effect. 5. A provision of a statute that, if any portion of it shall be found to be uncon Note. On arbitration agreements generally-see notes to Kinney v. Baltimore & O. Employees' Asso. 15 L.R.A. 152; and Carnochan v. Christie, 6 L. ed. U. S. 516. On what questions the Federal Supreme Court will consider in reviewing the judgments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571. Generally, on statutes part valid and part invalid-see notes to Titusville Iron Works v. Keystone Oil Co. 1 L.R.A. 363; and Fayette County v. People's & D. Bank, 10 L.R.A. 196. stitutional, it shall be conclusively presumed that the act would have been passed by the legislature without the invalid portion, and the act, as a whole, shall not be declared invalid because of it, is an aid merely to interpretation, and not an inexorable command. Courts effect of state decision. 6. The decision of a state court as to severance of an invalid portion of a state statute is conclusive on the Supreme Court of the United States. [For other cases, see Courts, VII. c, 3, in Digest Sup. Ct. 1908.] Argued January 15 and 16, 1924. Decided March 10, 1924. N WRIT of Error to the Supreme view a judgment affirming a judgment of the District Court for Cherokee County, convicting defendant of violation of a provision of the Court of Industrial Re lations Act. Reversed. See same case below, 112 Kan. 235, 210 Pac. 352. The facts are stated in the opinion. Messrs. John F. McCarron and Phil H. Callery argued the cause, and, with Messrs. Redmond S. Brennan and Frank Bonar Hegarty, filed a brief for plaintiff in error: The business of coal mining is not clothed with a public interest, and therefore § 3 of the Kansas Court of Industrial Relations Act violates liberty of On construction of statute according | Jackson ex dem. St. John v. Chew, 6 to purpose for which it was passed-see L. ed. U. S. 583; Mitchell v. Burlington, note to United States v. Saunders, 22 L. ed. U. S. 736. As to state decisions and laws as rules of decision in Federal courts-see notes to Clark v. Graham, 5 L. ed. U. S. 334; Elmendorf v. Taylor, 6 L. ed. U. S. 290; 18 L. ed. U. S. 351; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Snare & T. Co. v. Friedman, 40 L.R.A. (N.S.) 380. |