diversity, from a nonresident motor operator or owner in the United States District Court having jurisdiction over the place of the accident in which the motor vehicle is involved.

No question is or can now be raised against the constitutionality of the Kentucky statute to secure the presence of an out-of-state motorist in the state courts to respond to damages. It is the form generally approved for protection against out-of-state wrongdoers by motor operation, and is not subject to attack for lack of due process.1 The

1 Hess v. Pawloski, 274 U. S. 352. The statute there involved so far as pertinent read:

"The acceptance by a non-resident of the rights and privileges conferred by section three or four, as evidenced by his operating a motor vehicle thereunder, or the operation by a non-resident of a motor vehicle on a public way in the commonwealth other than under said sections, shall be deemed equivalent to an appointment by such non-resident of the registrar or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him, growing out of any accident or collision in which said non-resident may be involved while operating a motor vehicle on such a way, and said acceptance or operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally." Mass. Acts 1923, c. 431, § 2.

In Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, the provision was for a designation by the corporation "of the secretary of state as its agent upon whom all process in any action or proceedings against it may be served within this state." McKinney's N. Y. Laws, Gen. Corp. Law, § 210.

The Kentucky statute in this case reads:

"Any nonresident operator or owner of any motor vehicle who accepts the privilege extended by the laws of this state to nonresidents to operate motor vehicles or have them operated within this state shall, by such acceptance and by the operation of such motor vehicle within this state, make the Secretary of State his agent for the service of process in any civil action instituted in the courts of this state against the operator or owner arising out of or by reason of any accident or collision or damage occurring within this state in which the motor vehicle is involved." Ky. Rev. Stat., 1953, § 188.020.

275520 O-54-27

single issue decided by the Court is that such process does not waive venue under 28 U. S. C. § 1391 (a):

"A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside." The provision was substantially the same when the Neirbo case was decided. The clause then read:

. . . but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suits shall be brought only in the district of the residence of either the plaintiff or the defendant.” 28 U. S. C. (1946 ed.) § 112.

In Neirbo we held that since the foreign corporation had consented to be sued in the courts of the state, the consent extended to the federal courts sitting in the state. 308 U. S., at 171, 175. The same reasoning that led to the subjection of foreign corporations to federal litigation in the Neirbo case leads me to the conclusion that the out-ofstate motorist should likewise be so held. The motor car has lengthened the radius of the individual's activities. We have upheld the constitutional power of the states to compel redress of wrongs, through the use of the automobile, at the place of their happening. It is done through the consent of the party benefiting from his privilege to use the highways of the state. The District Courts have consistently ruled that the appointment of an agent for service of process by driving on state highways is a waiver of federal venue.2

2 Falter v. Southwest Wheel Co., 109 F. Supp. 556; Archambeau v. Emerson, 108 F. Supp. 28; Jacobson v. Schuman, 105 F. Supp. 483; Kostamo v. Brorby, 95 F. Supp. 806; Burnett v. Swenson, 95 F. Supp. 524; Thurman v. Consolidated School Dist., 94 F. Supp. 616; Urso v. Scales, 90 F. Supp. 653; Steele v. Dennis, 62 F. Supp. 73; Krueger v. Hider, 48 F. Supp. 708. Contra: Waters v. Plyborn, 93 F. Supp. 651.

I see no difference of substance between the signing of a paper under the New York statute upon which Neirbo is based and the acceptance, by action in driving a motor car, of the privilege of using state highways under the Kentucky statute. In each case there was no federal venue except by waiver and consent. Both the Bethlehem Corporation and this out-of-state motorist, in my opinion, waived objection to federal venue. The Hess case determined that the difference between the "formal and implied appointment" of an agent for service "is not substantial" under the Due Process Clause. 274 U. S., at 357.3 The Neirbo case held that consent to service on an agent for service of process waived objection to federal venue. The same rule if applied to this situation would achieve a like desirable result, trial at the logical place, the location of the incident that gives rise to the cause of action.

I would affirm the judgment.

3 Cf. Knott Corp. v. Furman, 163 F. 2d 199. In this case plaintiff, a citizen of Massachusetts, sued the corporation in the United States District Court for the Eastern District of Virginia, for injuries received during a hotel fire. The defendant, a Delaware corporation, operated the hotel on a United States military reservation. No written appointment of any state officer as agent for service of process had been filed by the corporation. Venue was challenged and the Fourth Circuit ruled that the corporation had waived the federal venue provisions under a statute which read:

"3. If any such company shall do business in this State without having appointed the Secretary of the Commonwealth its true and lawful attorney as required herein, it shall by doing such business in the State of Virginia be deemed to have thereby appointed the Secretary of the Commonwealth its true and lawful attorney for the purposes hereinafter set forth." Va. Code, Supp. 1946, § 3846a. The language of this statute is certainly analogous to that of the Kentucky statute, n. 1, supra.

ATCHISON, TOPEKA & SANTA FE RAILWAY CO. v. PUBLIC UTILITIES COMMISSION OF CALIFORNIA ET AL.

NO. 22. APPEAL FROM THE SUPREME COURT
OF CALIFORNIA.*

Argued October 14, 1953-Decided November 9, 1953.

The Public Utilities Commission of California entered orders, pursuant to a state statute, authorizing certain grade separation improvements, and requiring in each case that 50% of the costs be borne by the railroad. The improvements were designed to meet local transportation needs and to promote public safety and convenience, and were made necessary by the growth of the communities affected. There was no showing on the record in either case of arbitrariness or unreasonableness in the Commission's orders, and none was claimed except that the Commission refused to allocate costs on the basis of benefits to the railroads. Held: The orders of the Commission are not arbitrary or unreasonable and do not deprive the railroads of their property without due process of law, nor do they interfere unreasonably with interstate commerce. Pp. 347-355.

(a) In sustaining the Commission's orders by denying writs of review, the State Supreme Court upheld the statute as applied by the Commission, and the cases are properly here on appeal under 28 U. S. C. § 1257 (2). Pp. 348-349.

(b) The railroads were not entitled to have the costs of the improvements allocated only on the basis of benefits which will accrue to their property. Pp. 352–354.

(c) Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, distinguished. Pp. 353-354.

(d) The allocation of costs against the railroads in excess of benefits received did not constitute an undue burden on interstate commerce. P. 355.

Affirmed.

*Together with No. 43, Southern Pacific Co. v. Public Utilities Commission of California et al., argued October 14-15, 1953, also on appeal from the same court.

346

Opinion of the Court.

In each of these cases the Public Utilities Commission of California entered orders authorizing certain grade separation improvements and allocating a share of the cost to the railroad. 51 Cal. P. U. C. 771, 788. The State Supreme Court denied review. On appeal to this Court, affirmed, p. 355.

Douglas F. Smith argued the cause for appellant in No. 22 and Burton Mason argued the cause for appellant in No. 43. With them on a joint brief were Jonathan C. Gibson, R. S. Outlaw, Robert W. Walker, Kenneth F. Burgess and Arthur R. Seder, Jr. for appellant in No. 22, and George L. Buland, E. J. Foulds and Randolph Karr for appellant in No. 43.

Roger Arnebergh argued the cause for appellees in No. 22. With him on the briefs were Bourke Jones for the City of Los Angeles, appellee in that case, and Henry McClernan and John H. Lauten for the City of Glendale in No. 43. Ray L. Chesebro was also with them on statements opposing jurisdiction and motions to dismiss or affirm.

Hal F. Wiggins argued the cause for appellees in No. 43. With him on the briefs was Everett C. McKeage for the Public Utilities Commission.

MR. JUSTICE MINTON delivered the opinion of the Court.

1

These cases present the same questions of law and will be disposed of together. The Public Utilities Commission of California entered orders authorizing the construction of certain grade separation improvements and allocating the costs therefor, pursuant to § 1202 of the

1 The final orders may be found at 51 Cal. P. U. C. 771 and 51 Cal. P. U. C. 788.