The city does this by virtue of its power to grant rights and privileges and control their exercise in the streets of the city, power expressly conferred in the charter of the city.

In the fixing of a license tax upon all companies alike for the privilege of using cars in the city, it is exerting other charter powers. It makes provision uniformly applicable to all persons or companies using street cars. It is a revenue measure equally applicable to all coming within its terms. We do not perceive that the exercise of the power to grant privileges in the streets in making terms with companies seeking such rights, in the absence of plain and unequivocal terms to that effect, excludes the city's right to impose the license tax under the power conferred for that purpose.

How, then, stands the case? Is it true that because the city has required and the company has agreed to pay certain sums fixed in amount, or based on the receipts, for the use of the streets, that it has thereby deprived itself of the power to exercise the authority existing at the time the ordinances were passed to license street railway cars, and in the exercise of that power to charge a license fee or tax? At the time when the several special ordinances were passed the city of St. Louis had the right under its charter to grant the use of the streets for the use of the company, upon the terms which are named in such ordinances. It also had authority under another provision of its charter to require a license fee on certain vehicles, including street railway cars. There was in force a section of the municipal code assessing this license charge at $25.00 per annum for each car. (This is the code which has been amended by No. 21,087, in controversy.) It is stipulated that until the passage of the last-named ordinance the railway companies paid the license fees without objection. It is said in the opinion of the learned judge below that the tax, equal to one mill for each paid passenger, amounts to a tax of two per cent on the gross receipts, and is, therefore, an increase on what the company had theretofore agreed to pay. But the tax is not levied on the gross receipts as such, and any license tax, in

whatever sum imposed, would take something from the gross receipts of the company.

It seems to us that this case is virtually decided by the rule laid down in Railway Company v. New Orleans, 143 U. S. 192, supra, which holds that because a street railway company has agreed to pay for the use of the streets of the city for a given period, it does not thereby create an inviolable contract which will prevent the exaction of a license tax under an acknowledged power of the city, unless this right has been specifically surrendered in terms which admit of no other reasonable interpretation.

We are of the opinion that an application of settled principles, derived from the decisions of this court, shows that these ordinances do not contain any clearly expressed obligation on the part of the city surrendering its right to impose further license fees or taxes upon street railway cars, and we are of the opinion that the learned Circuit Court erred in reaching the contrary conclusion and in granting a decree perpetually enjoining the enforcement of the ordinance in controversy.

We have discussed this case on the record and briefs filed in No. 193. It was said by the learned counsel in the argument at bar that cases Nos. 194, 195 involved identical questions. For the reasons stated the decrees in the three cases are reversed.

Reversed.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY v. TAYLOR, ADMINISTRATRIX.

ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.

No. 201. Argued April 14, 1908.-Decided May 18, 1908.

Each State may, subject to restrictions of the Federal Constitution, determine the limit of the jurisdiction of its courts, and the decision of the nighest court sustaining jurisdiction although the cause of action arose outside the border of the State is final and does not present a Federal question.

The provision in § 5 of the Safety Appliance Act of March 2, 1893, 27 Stat. 531, referring it to the American Railway Association and the Interstate Commerce Commission to designate and promulgate the standard height and maximum variation of draw bars for freight cars is not unconstitutional as a delegation of legislative power. Buttfield v. Stranahan, 192 U. S. 470.

Under the Safety Appliance Act of 1893, 27 Stat. 531, the center of the draw bars of freight cars used on standard guages shall be, when the cars are empty, thirty-four and a half inches above the rails, and the statute permits when a car is loaded or partly loaded a maximum variation in the height downwards of three inches. The statute does not require that the variation shall be proportioned to the load or that a fully loaded car shall exhaust the entire variation.

An instruction that under the statute the draw bars of fully loaded freight cars must be of a uniform height of thirty-one and a half inches and that a variation between two loaded cars constitutes negligence under the statute is prejudicial error.

Although the constitutional grant of power to this court to review judg ments of the state courts may be wider than the statutory grant in § 709, Rev. Stat., the jurisdiction of the court extends only to the cases enumerated in that section.

The denial by the state court to give to a Federal statute the construction insisted upon by a party which would lead to a judgment in his favor is a denial of a right or immunity under the laws of the United States and presents a Federal question reviewable by this court under § 709, Rev. Stat.

It is only by reviewing in this court the construction given by the state courts to Federal statutes that a uniform construction of such statutes throughout all the States can be secured.

The Safety Appliance Act of March 2, 1893, 27 Stat. 531, supplants the common-law rule of reasonable care on the part of the employer as to providing the appliances defined and specified therein, and imposes upon

Argument for Plaintiff in Error.

210 U. S.

interstate carriers an absolute duty; and the common-law rule of reasonable care is not a defense where in point of fact the cars used were not equipped with appliances complying with the standards established by the act.

The courts have no responsibility for the justice or wisdom of legislation. They must enforce the statute, unless clearly unconstitutional, as it is written, and when Congress has prescribed by statute a duty upon a carrier the courts cannot avoid a true construction thereof simply because such construction is a harsh one.

THE facts are stated in the opinion.

Mr. Rush Taggart, with whom Mr. John F. Dillon was on the brief, for plaintiff in error:

A Federal question was presented when plaintiff in error moved at the close of all the testimony in the case for a verdict in its favor on the ground that Congress had not passed a valid law requiring railroads engaged in interstate commerce to equip their cars with couplers of uniform and standard height.

Congress alone has the power to provide for uniform and standard height of draw bars; this power is exclusively in the Congress, and cannot be delegated to any other association, commission or agency. When it came to making provision for uniform and standard height of draw bars it was the duty of Congress to ascertain from any source it desired to use-the American Railway Association-the Interstate Commerce Commission-the Master Car Builders' Association-or any number of those railway managers who may be found in any State of the Union-what that uniform and standard height should be, and then provide by specific enactment for its establishment, just as it did with regard to automatic couplers, air brakes, train brake system and grab-irons. Having failed to do this, this provision has fallen entirely outside the congressional enactment, and is no more enforcible in the courts than if the subject had never engaged the attention of the Congress at all. See Cooley on Const. Lim. (5th ed.), 139; 1 Dillon on Mun. Cor. (4th ed.), § 44; Barto v. Himrod, 8 N. Y. 483

210 U. S.

Argument for Defendant in Error.

The first instruction given by the trial court and finally approved by the Supreme Court of Arkansas presents a very erroneous interpretation of what is meant by uniform and standard height of draw bars.

It appears that all railroad men clearly understand what was meant by uniform and standard height and what it referred to and what provisions had been made to maintain it, and yet with all of this testimony in this record, the trial court and the Supreme Court of Arkansas interpreted the act entirely and radically different from the interpretations placed upon it by the American Railway Association and the Interstate Commerce Commission and by all the railway employés who testified in this case. This erroneous interpretation of the act was prejudicial to the plaintiff in error.

The court should have given the instruction contained in defendant's request No. 23, because a reasonable construction of the Safety Appliance Act is that if the railroad company equipped all its cars with uniform and standard height draw bars when such cars were first built and turned out of the shops, then that thereafter the defendant is only bound to use ordinary care to maintain such draw bars at the uniform and standard height mentioned in the testimony.

Mr. Sam R. Chew, for defendant in error, submitted:

There is no Federal question presented by this record and this court has, therefore, no power to review the judgment of the state court herein. Snell v. City of Chicago et al., 152 U.S. 193, 195; Miller v. Swann, 150 U. S. 132; Eustis v. Bowles, 150 U. S. 361; Scudder v. New York, 175 U. S. 32; Columbia Water Power Co. v. Columbia Electric Street Car Co., 172 U. S. 475; Cook County v. Calumet Co., 138 U. S. 635; Cameron v. United States, 146 U. S. 533; Kennard v. Nebraska, 186 U.S. 304; Florida Central v. Bell, 176 U. S. 321; Blackburn v. Portland Mining Co., 175 U. S. 571; Baker v. Baldwin, 187 U. S. 61; Walsh v. Columbus R. Co., 176 U. S. 469; Baltimore R. Co. v. Hopkins, 130 U. S. 210.