The restrictions on the legislature are of a local character which are affected with only such as are expressly imposed. a public interest—the word “public” being

497, 43 N. E. 682; Prince v. Crocker, 166 Mass. 359, 32 L.R.A. 610, 44 N. E. 446; Terrett v. Taylor, 9 Cranch, 43, 3 L. ed. 650; Payne v. Treadwell, 16 Cal. 221; Jones v. Lake View, 151 Ill. 663, 38 N. E. 688; Frederick v. Groshon, 30 Md. 436, 96 Am. Dec. 591; Groff v. Frederick City, 44 Md. 67; State Bank v. Madison, 3 Ind. 43; Paterson v. Society for Establishing Useful

used in the broadest and most inclusive 46, 25 N. Y. Supp. 1089; People ex rel. sense. They show that a municipality may Simon v. Bradley, 207 N. Y. 592, 101 N. be compelled to spend its money in connec- E. 766; Perkins v. Slack, 86 Pa. 270; tion with matters which are in no sense Potter v. Collis, 19 App. Div. 392, 46 N. sovereign in their nature, and that, in all Y. Supp. 471, affirmed in 156 N. Y. 16, its powers and functions and duties, it is 50 N. E. 413; Higginson v. The Treasurer subject to the will of the state, which (Higginson v. Slattery) 212 Mass. 583, 42 created it, expressed through the medium L.R.A. (N.S.) 215, 99 N. E. 523; Re Kingof legislative enactments. In their relations man, 153 Mass. 566, 12 L.R.A. 417, 27 to the state, in all matters of a "public" N. E. 778; Re Protestant Episcopal Public nature, they have no contractual rights School, 46 N. Y. 178; Milwaukee Electric independent of the will of the legislature. R. & Light Co. v. Railroad Commission, Atkin v. Kansas, 191 U. S. 207, 48 L. 238 U. S. 174, 59 L. ed. 1254, P.U.R.1915D, ed. 148, 24 Sup. Ct. Rep. 124; Hunter v. 591, 35 Sup. Ct. Rep. 820; Hudson County Pittsburgh, 207 U. S. 171, 178, 32 L. ed. Water Co. v. McCarter, 209 U. S. 349, 357, 156, 159, 28 Sup. Ct. Rep. 40; Williams v. 52 L. ed. 828, 832, 28 Sup. Ct. Rep. 529, Eggleston, 170 U. S. 304, 310, 42 L. ed. | 14 Ann. Cas. 560; Re Adams, 165 Mass. 1047, 1049, 18 Sup. Ct. Rep. 617, affirming State ex rel. Bulkeley v. Williams, 68 Conn. 131, 48 L.R.A. 465, 35 Atl. 24, 421; Barnett v. Denison, 145 U. S. 135, 139, 36 L. ed. 652, 653, 12 Sup. Ct. Rep. 819; Hill v. Memphis, 134 U. S. 198, 203, 33 L. ed. 887, 889, 10 Sup. Ct. Rep. 562; Metropolitan R. Co. v. District of Columbia, 132 U. S. 1, 8, 33 L. ed. 231, 234, 10 Sup. Ct. Rep. 19; Meriwether v. Garrett, 102 U. S. | Manufactures, 24 N. J. L. 385; State ex 472, 513, 26 L. ed. 197, 204; Mt. Pleasant v. Beckwith, 100 U. S. 514, 524, 25 L. ed. 699, 701; Laramie County v. Albany County, 92 U. S. 307, 23 L. ed. 552; Barnes v. District of Columbia, 91 U. S. 540, 544, 23 L. ed. 440, 441; United States v. Baltimore & O. R. Co. 17 Wall. 322, 329, 21 L. ed. 597, 600; People ex rel. Williams Engineering & Contracting Co. v. Metz, 193 N. Y. 148, 161, 24 L.R.A. (N.S.) 201, 85 N. E. 1070; MacMullen v. Middletown, 187 N. Y. 37, 11 L.R.A.(N.S.) 391, 79 N. E. 863; Ryan v. New York, 177 N. Y. 271, 69 N. E. 599; Demarest v. New York, 74 N. Y. 166; People v. Ingersoll, 58 N. Y. 21, 17 Am. Rep. 178; People v. Pinckney, 32 N. Y. 393; Darlington v. New York, 31 N. Y. 164, 88 Am. Dec. 248; People v. Morris, 13 Wend. 329; See State ex rel. Bulkeley v. Williams, 48 L.R.A. 465, note; Union Lime Co. v. Chicago & N. W. R. Co. 233 U. S. 211, 218, 58 L. ed. 924, 928, 34 Sup. Ct. Rep. 522; People ex rel. McLean v. Flagg, 46 N. Y. 401; Brewster v. Syracuse, 19 N. Y. 116; New York v. Tenth Nat. Bk. 111 N. Y. 446, 18 N. E. 618; Guilford v. Chenango County, 13 N. Y. 143; Syracuse v. Hubbard, 64 App. Div. 587, 72 N. Y. Supp. 802; New Orleans v. Clark (Jefferson City Gaslight Co. v. Clark) 95 U. S. 644, 654, 24 L. ed. 521, 522; Guthrie Nat. Bank v. Guthrie, 173 U. S. 528, 536, 43 L. ed. 796, 799, 19 Sup. Ct. Rep. 513; Brown v. New York, 63 N. Y. 239; New York v. Fulton Market Fishmongers' Asso. 3 How. Pr. N. S. 500; Re Union Ferry Co. 98 N. Y. 139; Tocci v. New York, 73 Hun,

rel. Cleveland v. Board of Finance & Taxn. 38 N. J. L. 259; Re Dalton, 61 Kan. 257, 47 L.R.A. 380, 59 Pac. 336; Rogers v. Burlington, 3 Wall. 654, 663, 18 L. ed. 79, 82; Worcester v. Worcester Consol. Street R. Co. 196 U. S. 539, 550, 552, 49 L. ed. 591, 595, 596, 25 Sup. Ct. Rep. 327; Boisé Artesian Hot & Cold Water Co. v. Boisé City, 230 U. S. 84, 94, 57 L. ed. 1400, 1407, 33 Sup. Ct. Rep. 997; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 57 L. ed. 1410, 33 Sup. Ct. Rep. 967.

An uncompensated obedience to legitimate regulations established by the state in carrying out its public policy would not constitute an unconstitutional deprivation of property.

Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 78, 59 L. ed. 1204, 1211, 35 Sup. Ct. Rep. 678; Northern P. R. Co. v. Minnesota, 208 U. S. 583, 597, 52 L. ed. 630, 636, 28 Sup. Ct. Rep. 341.

Whether we call the construction of public works and the operation of public utilities "governmental" or "proprietary," "nongovernmental" or "quasi private," the fact remains that such works are, in every real sense of the word, public undertakings, and, to use the words of the court of appeals, “in all of the public undertakings, the state is the proprietor."

Ryan v. New York, 177 N. Y. 273, 69 N. E. 599; People ex rel. Williams Engineering & Contracting Co. v. Metz, 193 N. Y. 148, 24 L.R.A. (N.S.) 201, 85 N. E. 1070; Astor v. New York, 62 N. Y. 589.

The statute does not contravene the pro

vision of the Federal Constitution prohibit- | No. 386, just decided [239 U. S. 175, ante, ing the passage by the states of ex post 206, 36 Sup. Ct. Rep. 78]. It involves the facto laws, or laws impairing the obliga- criminal feature of § 14 of the labor law tion of contracts. of the state, which was the subject of the Cleveland & P. R. Co. v. Cleveland, 235 | opinion in No. 386. It provided that a violation of the section should constitute a misdemeanor and be punished by fine or imprisonment, or by both.

Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 545, 58 L. ed. 713, 719, 720, 34 Sup. Ct. Rep. 359; Rosenthal v. New York, 226 U. S. 260, 271, 57 L. ed. 212, 217, 33 Sup. Ct. Rep. 27, Ann. Cas. 1914B, 71; Engel v. O'Malley, 219 U. S. 128, 55 L. ed. 128, 31 Sup. Ct. Rep. 190; Mallinckrodt Chemical Works v. Missouri, 238 U. S. 41, 54, 59 L. ed. 1192, 1197, 35 Sup. Ct. Rep. 671. The statute is not in conflict with exist-proceeding is a subject of the King of ing treaties.

Italy." Treaties with other countries were also received in evidence. To them the district attorney objected on the ground that none of the parties to the proceedings and "nobody who was connected in any way with the subject-matter of the contract or employed in the performance of the work" was "a subject or citizen of any of the countries referred to."

The provisions of the treaty with Italy are set out in the opinion in the Heim Case, This case was argued and submitted with and the provisions of the other treaties are

not, so far as their application is concerned, materially different.

The contentions of plaintiff in error are based on the treaties and on the 14th Amendment of the Constitution of the United States. The specifications of error are the same, though varying in expression, as those in the Heim Case, and there considered and declared untenable. There is added the view that a distinction made be

Mr. Frederic D. McKenney argued the cause, and, with Messrs. F. S. Spruill and John Spalding Flannery, filed a brief for plaintiff in error.

No appearance for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

The plaintiff (defendant in error) was a fireman employed by the defendant.

On

tween aliens and citizens violates the princi- October 5, 1907, he was injured by its negli ple of classification. We think this view is also without foundation. Judgment affirmed.

upon the employers' liability act of April
22, 1908 (35 Stat. at L. 65, chap. 149,
Comp. Stat. 1913, § 8657), must fail where
the record shows that it was not begun un-
til the time had elapsed after which, under
§ 6 of that act, "no action shall be main-
tained," although defendant did not raise
the objection in his pleading.
[For other cases, see Master and Servant, II.;
Pleading, III. g, in Digest Sup. Ct. 1908.1

[No. 66.]

gence while working upon a train running from South Carolina to North Carolina. He brought this [200] action on January 7, 1910, and judgment was ordered for a certain sum by the supreme court of the state. 163 N. C. 186, 79 S. E. 414. The supreme court assumed that the case was governed by the act of April 22, 1908, chap. 149, 35 Stat. at L. 65, Comp. Stat. 1913, § 8657. Two errors are assigned. First, in holding that statute applicable to the cause of action, and second, in allowing a recovery under it in an action begun more than two years after the cause of action accrued. Id. § 6. The case was not argued in this court on behalf of the defendant in error, but we gather from the record in the opinion that while, at the trial, the railroad, upon issues not before us, insisted that the Federal statute was not applicable, the contrary was admitted before the supreme court; so that, although the admission seems to have been made with the second question only in view, the first point would appear not to have been drawn to the attention of either court, and there was no discussion of how the case would stand

Argued November 9, 1915. Decided Novem- apart from the act. The second objection

I

ber 29, 1915.

N ERROR to the Supreme Court of the State of North Carolina to review a judgment which reversed a judgment of the Superior Court of Edgecombe County, in that state, in favor of defendant in an action under the Federal employers' liability act. Reversed.

See same case below, 163 N. C. 186, 79 S. E. 414.

The facts are stated in the opinion.

was met by deciding that the limitation of two years imposed by § 6 could not be relied upon for want of a plea setting it up.

It would seem a miscarriage of justice if the plaintiff should recover upon a statute that did not govern the case, in a suit that the same act declared too late to be maintained. A right may be waived or lost by a failure to assert it at the proper time (Burnet v. Desmornes, 226 U. S. 145, 57 L. ed. 159, 33 Sup. Ct. Rep. 63); but when a party has meant to insist on all the rights it might have, such a result would be unThe record shows usual and extreme. case to which the act of 1908 did not apply (Winfree v. Northern P. R. Co. 227 U S. 296, 57 L. ed. 518, 33 Sup. Ct. Rep. 273), and which the earlier act of 1906 [34 Stat. at L. 232, chap. 3073] probably could not affect (Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 489, As to necessity for alleging that action 52 L. ed. 297, 305, 28 Sup. Ct. Rep. 141. for death is within statutory period-see It also shows that the action was brought note to Sharrow v. Inland Lines, L.R.A. too late, and that the defendant insisted 1915E, 1192. upon that point, although it had not plead

NOTE. On the constitutionality, application, and effect of Federal employers' liability act-see notes to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 38; and Seaboard Air Line R. Co. v. Horton, L.R.A. 1915C, 47.

On the necessity of pleading limitation as bar to statutory action for death-see note to Martin v. Pittsburgh R. Co. 26 L.R.A. (N.S.) 1221.

ed what was apparent on the allegations of the declaration and the admissions of the

answer.

the owner pro hac vice of a vessel chartered
for military service so as to affect the ex-
tent of the government's liability for in-
juries to the vessel and for demurrage due
to repairs, where the charter party, al-
though it recites that the owner "does here-
by grant and let" and that the government
"does hereby take" the vessel, and fixes the
price at which the United States may pur-
chase the vessel, and refers to the vessel
being "returned," and contemplates that the
need of repairs may be attributable to the
fault of the government, and gives the gov-
ernment control over the destination, also
requires the owner to furnish the master
and crew, and to deliver the cargo in good
condition, dangers of the sea, etc., excepted,
and to assume the marine risk.
[For other cases, see Shipping, IV. a, 3, in
Digest Sup. Ct. 1908.]
Shipping United States as charterer
marine risk.

2. The United States cannot be held

[201] In dealing with the enactments of a paramount authority, such as Congress is, within its sphere, over the states, we are not to be curious in nomenclature if Congress has made its will plain, nor to allow substantive rights to be impaired under the name of procedure. Central Vermont R. Co. v. White, 238 U. S. 507, 511, 59 L. ed. 1433, 1436, 35 Sup. Ct. Rep. 865. But, irrespective of the fact that the act of Congress is paramount, when a law that is relied on as a source of an obligation in tort sets a limit to the existence of what it creates, other jurisdictions naturally have been disinclined to press the obligation farther. Davis v. Mills, 194 U. S. 451, 454, 48 L. ed. 1067, 1070, 24 Sup. Ct. Rep. 692; The Harrisburg, 119 U. S. 199, 30 L. ed. 358, 7 Sup. Ct. Rep. 140. There may be special reasons for regarding such obligations imposed upon railroads by the statutes of the United States as so limited. A. J. Phillips Co. v. Grand Trunk Western R. Co. 236 U. S. 662, 667, 59 L. ed. 774, 776, 35 Sup. Ct, Rep. 444. At all events, the act Claims-jurisdiction-contract or tort. of Congress creates the only obligation that has existed since its enactment in a case like this, whatever similar ones formerly may have been found under local law emanating from a different source. Winfree v. Northern P. R. Co. 227 U. S. 296, 302, 57 L. ed. 518, 520, 33 Sup. Ct. Rep. 273. If it be available in a state court to found a right, and the record shows a lapse of time after which the act says that no aetion shall be maintained, the action must fail in

liable under the provisions of a charter party for not returning a chartered vessel in the same order as received, and for demurrage due to repairs attributable to its fault, where the damage was due proximate. ly to marine risks which the owner assumed. (For other cases, see Shipping, IV. a, 3, in

Digest Sup. Ct. 1908.]

3. The United States is not suable in the court of claims upon a claim for injuries to a vessel chartered by it for mili tary purposes, which were received while the vessel was performing services outside the contract, under the compulsion of of[For other cases, see Claims, 105-108, 128ficers of the government. 131, in Digest Sup. Ct. 1908.]

[No. 71.]

the courts of a state as in those of the Argued November 11, 1915. Decided No

vember 29, 1915.

PPEAL from the Court of Claims to re

A
for injuries to a vessel chartered for mili-
view a judgment which rejected a claim
tary purposes, and for demurrage while un-
dergoing repairs. Affirmed.

The facts are stated in the opinion.

Mr. A. R. Serven argued the cause and filed a brief for appellant:

Does the charter party constitute a deImise of the vessel, or is it a mere contract of affreightment?

United States v. Shea, 152 U. S. 178, 38 L. ed. 403, 14 Sup. Ct. Rep. 519; Belcher v. Capper, 11 L. J. C. P. N. S. 275, 4 Mann. & G. 502, 5 Scott, N. R. 257; Raymond v. Tyson, 17 How. 53, 59, 15 L. ed. 47, 48; American Steel-Barge Co. v. Cargo of Coal, 107 Fed. 967; New Bedford & N. Y. Steam Propeller Co. v. United States, 14 Wall. 670, 20 L. ed. 760; The Aberfoyle, Abb. Adm. 255, Fed. Cas. No. 16; Clarkson v. Edes, 4 Cow. 470; Donahoe v. Kettell,