are mentioned together in section 22, the force and effect of that provision must necessarily differ with the differing character of the several kinds of tickets. It seems to be settled under that section that a carrier may enter upon the policy and practice of issuing mileage books and excursion tickets at less than its regular normal fare for the one-way journey, and, having adopted such a policy, may subsequently withdraw from it and refuse longer to issue such tickets. That has been the view of this Commission, and is the view generally entertained, although there may be exceptional circumstances where a different conclusion would be required. It by no means follows, however, that a carrier under section 22 may exercise the same scope and freedom of action with respect to commutation tickets."

The reasoning of these decisions is sound and involves no violation of the Federal Constitution. True it is that it may not be possible to reconcile these views with all that is said in the opinion delivered for the majority of the court in the case of Lake Shore & Michigan Southern Ry. Co. v. Smith, supra. The views therein expressed which are inconsistent with the right of the States to fix reasonable commutation fares when the carrier has itself established fares for such service, must be regarded as overruled by the decision in this case.

We find no error in the decree of the Court of Appeals of Maryland, and the same is

Affirmed:

Dissenting: THE CHIEF JUSTICE, MR. JUSTICE MCKENNA and MR. JUSTICE MCREYNOLDS.

BRUCE, ADMINISTRATOR OF TOBIN ET AL., v.

TOBIN.

PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA.

No. 645. Petition for a writ of certiorari submitted October 1, 1917.Denied October 22, 1917.

The remedy by certiorari which, in certain classes of cases, is substituted by the Act of September 6, 1916, c. 448, 39 Stat. 726, for the remedy by writ of error previously allowed by Rev. Stats., § 709, Jud. Code, § 237, is confined to final judgments, and finality, in the one case as in the other, is determined by the face of the record and the formal character of the judgment rendered by the state court. In an action by a father to recover a share of a fund collected by his deceased son's administrator as damages under the Employers' Liability Act, the state trial court rejected the father's claim entirely. The state supreme court, upholding his right but not specifically fixing the amount to which he was entitled, directed a new trial to accomplish that result. Assuming the judgment final in the sense that it determined the ultimate right and the general principles by which it was to be measured, Held, nevertheless, that it was not final in the sense of the Act of September 6, 1916, supra, and that an application for certiorari under that statute was premature. Petition for a writ of certiorari to review 39 S. Dak. 64, denied.

THE case is stated in the opinion.

Mr. E. A. Burgess, Mr. B. I. Salinger, Mr. L. H. Salinger and Mr. Joseph Janousek for petitioners, in support of the petition. Their printed argument was confined to the merits.

No brief filed for respondent.

Memorandum opinion by MR. CHIEF JUSTICE WHITE, by direction of the court.

A railroad in whose service Tobin lost his life while actually engaged in carrying on interstate commerce, ad

18.

Opinion of the Court.

mitting liability under the Act of Congress, paid the conceded loss to his administrator. A father and mother, but no widow or children survived. The father, the respondent, sued in a state court to recover half the amount as his share of the loss. Setting aside the action of the trial court rejecting the claim, but not specifically fixing the amount of the father's recovery, the Supreme Court of South Dakota directed a new trial to accomplish that result. Application for certiorari was then made by the petitioner on the ground that such decision involved questions under the Employers' Liability Act reviewable by certiorari under the Act of Congress of September 6, 1916, c. 448, 39 Stat. 726.

The act in question, although it deprived of the right of review by writ of error which had hitherto obtained in certain cases and substituted as to such cases the right of petitioning for review by certiorari, subjected this last right to the same limitation as to the finality of the judgment of the state court sought to be reviewed which had prevailed from the beginning under § 709, Rev. Stats., § 237, Judicial Code. Finality, therefore, continues to be an essential for the purposes of the remedy by certiorari conferred by the Act of 1916.

It may be indeed said that although the case was remanded by the court below for a new trial, the action of the court was in a sense final because it determined the ultimate right of the father to recover and the general principles by which that right was to be measured. But that contention is not open as it was settled under § 709, Rev. Stats., § 237, Judicial Code, that the finality contemplated was to be determined by the face of the record and the formal character of the judgment rendered,-a principle which excluded all conception of finality for the purpose of review in a judgment like that below rendered. Haseltine v. Bank, 183 U. S. 130; Schlosser v. Hemphill, 198 U. S. 173; Louisiana Navigation Co. v. Oyster Commis

sion of Louisiana, 226 U. S. 99; Coe v. Armour Fertilizer Works, 237 U. S. 413, 418, 419. The reënactment of the requirement of finality in the Act of 1916 was in the nature of things an adoption of the construction on the subject which had prevailed for so long a time.

There being then no final judgment within the contemplation of the Act of 1916, the petition for a writ of certiorari is

Denied.

CONTRIBUTORS TO THE PENNSYLVANIA HOSPITAL v. CITY OF PHILADELPHIA ET AL.

ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.

No. 349. Argued October 16, 1917.-Decided November 5, 1917.

So vital a governmental power as the power, upon just compensation, to take private property for public use, cannot be divested through contracts made by the State. Such contracts are not within the protection of the contract clause of the Constitution. Proceedings taken by a city to condemn land for a street through the grounds of a charitable corporation were resisted, in reliance on an act by which for valuable considerations the legislature had prohibited such takings without the corporation's consent. The city undertook to condemn not only the land but also the right under the contract. Held, that the contract could not be successfully opposed to the power of condemnation; and this quite apart from the attempt to condemn the contract right itself, since, if the contract exemption were otherwise valid, its defeat by such a method would be a mere evasion.

Without departing from the settled rule that a writ of error will be dismissed if its total want of merit is shown conclusively by decisions of this court extant at time of decision below, in this case the course and resulting aspect of the proceedings below warrant a decree of affirmance.

254 Pa. St. 392, affirmed.

20.

Opinion of the Court.

THE case is stated in the opinion.

Mr. Owen J. Roberts, with whom Mr. Charles Biddle and Mr. J. Rodman Paul were on the brief, for plaintiff in

error.

Mr. John P. Connelly and Mr. Ernest Lowengrund, with whom Mr. Joseph G. Magee was on the brief, for defendants in error.

MR. CHIEF JUSTICE WHITE delivered the opinion of the

court.

Whether contract obligations were impaired in violation of rights of the plaintiff in error protected by the Constitution of the United States as the result of the decision below, is the sole question we are called upon to decide on this record. It thus arises:

The plaintiff in error, a charitable institution, was organized under the laws of Pennsylvania and in 1841 it established on a tract of land in the City of Philadelphia a hospital for the care and cure of the insane. Solicitous lest the opening of streets, lanes and alleys through its grounds might injuriously affect the performance of its work, in 1854 a committee of the managers of the hospital memorialized the legislature on that subject and this resulted in the passage of a law specially forbidding the opening of any street or alley through the grounds in question without the consent of the hospital authorities. The act was conditioned upon the hospital making certain payments and furnishing ground for a designated public street or streets and these terms were accepted by the hospital and complied with. In 1913 the city, within the authority conferred upon it by the State, took the necessary preliminary steps to acquire by eminent domain land for the opening of a street through the hospital