447 U.S. 54 (1980)
NEW YORK GASLIGHT CLUB, INC., ET AL.
v.
CAREY.
No. 79-192.
Supreme Court of United States.
Argued February 19, 1980.
Decided June 9, 1980.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
*56 Albert N. Proujansky argued the cause for petitioners. With him on the brief was Marvin Luboff.
James I. Meyerson argued the cause and filed a brief for respondent.
Harriet S. Shapiro argued the cause for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General McCree, Assistant Attorney General Days, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager.[*]
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the question whether, under Title VII of the Civil Rights Act of 1964, a federal court may allow the prevailing party attorney's fees for legal services performed in prosecuting an employment discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke.

I
Respondent Cidni Carey, in August 1974, applied for work as a cocktail waitress with petitioner New York Gaslight Club, Inc. After an interview, she was advised that no position was available.
The following January, respondent filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners, the Club and its manager, had denied her a position because of her race. App. to Brief for Respondent a1-a3. As required by § 706 (c) of Title VII of the Civil *57 Rights Act of 1964, 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (c), respondent's complaint was forwarded to the New York State Division of Human Rights (Division).
In May 1975, after an investigation during which respondent was represented by counsel,[1] the Division found probable cause to believe that petitioners had engaged in an unlawful discriminatory practice. Efforts at conciliation failed, and the Division, pursuant to N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979), recommended that a public hearing be held.
Counsel for respondent wrote to the EEOC on May 20, advising the Commission that respondent was proceeding in the Division. He asked that the Commission "reassume" jurisdiction over the claim so that, if necessary, respondent could obtain a right-to-sue letter at an appropriate time. On May 22, the EEOC responded, stating that an investigator would be assigned to respondent's matter as soon as possible.
The state administrative hearing was held on two separate days in late 1975 and early 1976. Both respondent and petitioners were represented by counsel. App. 68. No attorney for the State appeared. On August 13, 1976, the hearing examiner found that petitioners had discriminated against respondent because she is black. Id., at 70. Petitioners were ordered to offer respondent employment as a cocktail waitress and to pay her back wages from August 1974. Id., at 70-72. No attorney's fee was awarded.
Petitioners appealed to the New York State Human Rights Appeal Board, an agency established to hear appeals from orders of the Division. N. Y. Exec. Law § 297-a (McKinney 1972 and Supp. 1979). The Board held a hearing in December 1976 at which counsel for petitioners, respondent, and the Division appeared.
*58 Meanwhile, EEOC proceedings had begun. Giving due weight to the state finding of probable cause, see § 706 (b), 42 U. S. C. § 2000e-5 (b), the EEOC determined that there was reasonable cause to believe petitioners had violated Title VII. The EEOC's attempts at conciliation also failed. The Commission's General Counsel chose not to sue, and, as required by § 706 (f) (1), § 2000e-5 (f) (1), the EEOC issued respondent a right-to-sue letter. This was issued on July 13, 1977; respondent, under § 706 (f) (1), then had 90 days to file a Title VII action in federal district court.
On August 26, the Appeal Board confirmed the Division's order. Petitioners immediately appealed the Board's decision to the New York Supreme Court. The Division cross-petitioned for enforcement of its order.
On September 30, respondent filed suit in the United States District Court for the Southern District of New York, asserting claims under the Civil Rights Act of 1866, 42 U. S. C. § 1981, Title VII, and the Thirteenth Amendment. App. 29. Respondent alleged that petitioners did not hire her because she is black, and that petitioner Club had employed only four blacks as waitresses during its 20-year existence. The complaint sought a declaratory judgment that petitioners' practices were unlawful under federal law, an order requiring petitioners to hire respondent, backpay with interest, retroactive employment-related benefits, attorney's fees, and other appropriate relief. Petitioners' answer denied virtually all the allegations in the complaint and cited the pendency of the state proceedings as an affirmative defense.
The Appellate Division of the New York Supreme Court on November 3 unanimously affirmed the Appeal Board's determination. New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App. Div. 2d 852, 399 N. Y. S. 2d 158 (1977). Petitioners unsuccessfully moved for reargument, and then filed a motion with the New York Court of Appeals for leave to appeal.
*59 On February 3, 1978, while that motion was pending, the Federal District Court held a pretrial conference, after which petitioners agreed that if the state court denied their motion for leave to appeal, they would comply with the Division's order. App. 73. One week later the New York Court of Appeals denied petitioners' motion. 43 N. Y. 2d 951 (1978).
The parties thereafter apparently agreed that the federal action could be dismissed, except for respondent's request for attorney's fees. See App. 75-79. Respondent sought an award for 82 hours of attorney's time. Of that total, 9 hours were spent in preparing and filing the EEOC charge and the federal suit, 22 hours were spent in preparing and presenting the case before the hearing examiner, 29 hours were spent in defending the Division's order before the Appeal Board and the state courts, and 22 hours were spent seeking the fee award. App. to Pet. for Cert. A39-A40.
In July 1978, the District Court dismissed respondent's complaint, App. 35, but left pending the application for attorney's fees. After further briefing, the court denied the fee request. 458 F. Supp. 79 (SDNY 1978).
The District Court found the propriety of the EEOC's issuance of a right-to-sue letter while state proceedings were pending "very doubtful." Id., at 80. Although the EEOC's action had given respondent no choice but to preserve her rights by filing a complaint in federal court, the District Court ruled that the mere filing of a federal suit does not entitle an aggrieved party to attorney's fees. The court reasoned that the fortuity of a need to file a protective federal suit should not make the defendants responsible for the costs of representing the plaintiff in the state forums. Id., at 81.
The District Court also relied on its conclusion that respondent "had the option of pursuing her state administrative remedies without incurring any expenses at all for legal services," since state law, N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1978), provides that the case in support of the complaint is to be presented to the hearing examiner by one *60 of the attorneys for the Division. 458 F. Supp., at 81. The decision in Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977), upholding an award of attorney's fees for prosecution of a federal employee's Title VII claim in mandatory preliminary proceedings within the employee's agency, was distinguished on the ground that the agency did not provide an independent attorney to prosecute the complaint. 458 F. Supp., at 81.
A divided panel of the United States Court of Appeals for the Second Circuit reversed. 598 F. 2d 1253 (1979). The court ruled: "A complaining party who is successful in state administrative proceedings after having her complaint under Title VII referred to a state agency in accordance with the statutory scheme of that Title is entitled to recover attorney's fees in the same manner as a party who prevails in federal court." Id., at 1260. The court relied on several factors in reaching its decision. Among them were the significant role of state human rights agencies in the Title VII enforcement scheme; the statute's strong preference for administrative resolution of a discrimination complaint; the importance of providing an incentive for complete development of the administrative record; the language of the statute's fee provision; and the desirability of encouraging a complainant to retain private counsel notwithstanding participation of a Division attorney at certain points during the state proceedings.
We granted certiorari, 444 U. S. 897 (1979), to consider this question that is significant to the enforcement of the antidiscrimination provisions of Title VII.

II
Section 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k), provides:
"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs."
*61 The question presented is whether, in the words of the statute, respondent was the "prevailing party" in an "action or proceeding under this title." An examination of the language and history of the statute, the nature of the proceedings in which respondent participated, and the relationship of those proceedings to Title VII's enforcement mechanisms, together persuade us that Congress clearly intended to authorize awards of attorney's fees to persons in respondent's situation.
The words of § 706 (k) leave little doubt that fee awards are authorized for legal work done in "proceedings" other than court actions. Congress' use of the broadly inclusive disjunctive phrase "action or proceeding" indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings. This conclusion is supported by a comparison of § 706 (k) with another fee provision in the same Act, namely, § 204 (b) of Title II, 78 Stat. 244, 42 U. S. C. § 2000a-3 (b). The pertinent language of § 204 (b) is identical to that of § 706 (k) except that § 204 (b) permits an award only with respect to "any action commenced pursuant to this title." The two provisions were enacted contemporaneously as parts of the Civil Rights Act of 1964. The omission of the words "or proceeding" from § 204 (b) is understandable, since enforcement of Title II depends solely on court actions. See Newman v. Piggie Park Enterprises, 390 U. S. 400, 401 (1968). It is apparent, therefore, that the two fee provisions were carefully tailored to the enforcement scheme of each Title. It cannot be assumed that the words "or proceeding" in § 706 (k) are mere surplusage.
It might be argued that the words "or proceeding" authorize fee awards only for work done in federal administrative proceedings,[2] such as those before the EEOC, but not for *62 state administrative or state judicial proceedings. This reading at least would not render the words "or proceeding" a complete nullity. We find nothing in the statute, however, to suggest that Congress intended to draw this particular line. Rather, other provisions of the statute that interact with § 706 (k); the purpose of § 706 (k); the humanitarian remedial policies of Title VII; and the statute's structure of cooperation between federal and state enforcement authorities, all point to the opposite conclusion.
Section 706 (k) authorizes a fee award to the prevailing party in "any . . . proceeding under this title." (Emphasis added.) The same Title creates the system of deferral to state and local remedies. The statute uses the word "proceeding" to describe the state and local remedies to which complainants are required to resort. For example, § 706 (c), 86 Stat. 104, provides:
"[N]o charge may be filed . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. . . . If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent. . . ." (Emphasis added).
Indeed, throughout Title VII the word "proceeding," or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, *63 administrative and judicial.[3] The conclusion that fees are authorized for work done at the state and local levels is inescapable.
This Court recently examined the legislative history and purpose of § 706 (k). In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), it was noted that, although the legislative history of § 706 (k) is "sparse," 434 U. S., at 420, it is clear that one of Congress' primary purposes in enacting the section was to "make it easier for a plaintiff of limited means to bring a meritorious suit." Ibid., quoting 110 Cong. Rec. 12724 (1964) (remarks of Sen. Humphrey). Because Congress has cast the Title VII plaintiff in the role of "a private attorney general," vindicating a policy "of the highest priority," a prevailing plaintiff "ordinarily is to be awarded attorney's fees in all but special circumstances." 434 U. S., at 416, 417. See also Newman v. Piggie Park Enterprises, 390 U. S., at 402. It is clear that Congress intended to facilitate the bringing of discrimination complaints. Permitting an attorney's fee award to one in respondent's situation furthers this goal, while a contrary rule would force the complainant to bear the costs of mandatory state and local proceedings and thereby would inhibit the enforcement of a meritorious discrimination claim.
Title VII establishes a comprehensive enforcement scheme in which state agencies are given "a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination." Oscar Mayer & Co. v. Evans, 441 U. S. 750, 755 (1979). Congress envisioned that Title VII's procedures and remedies would "mes[h] nicely, logically, and coherently with the State and city legislation," and that remedying employment *64 discrimination would be an area in which "[t]he Federal Government and the State governments could co-operate effectively." 110 Cong. Rec. 7205 (1964) (remarks of Sen. Clark).
Pursuant to this policy of cooperation, Title VII provides that where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice and in which an agency has been established to enforce that law, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706 (c). In practice, § 706 (c) has resulted in EEOC's development of a referral and deferral system, which the Court approved in Love v. Pullman Co., 404 U. S. 522 (1972). When a charge is filed with the EEOC prior to exhaustion of state or local remedies, the Commission refers the complaint to the appropriate local agency. The EEOC then holds the complaint in "suspended animation." Id., at 526. Upon termination of the state proceedings or expiration of the 60-day deferral period, whichever comes first, the EEOC automatically assumes concurrent jurisdiction of the complaint. Ibid.[4]
Of course, the "ultimate authority" to secure compliance with Title VII resides in the federal courts. Alexander v. Gardner-Denver Co., 415 U. S. 36, 44-45 (1974). The statute *65 authorizes civil enforcement actions by both the EEOC and the private plaintiff. After the deferral period, the EEOC assumes jurisdiction, and, "as promptly as possible" it determines whether there is probable cause to believe that the charge is true. § 706 (b). After an additional 30 days, the EEOC is authorized to bring an action, in which the complainant has an absolute right to intervene. § 706 (f). If the Commission does not file suit, or enter into a conciliation agreement to which the complainant is a party, within 180 days after it reassumes jurisdiction, it must issue a "right to sue" letter notifying the complainant of his right to bring an action within 90 days. Ibid.[5]
It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief. See Alexander v. Gardner-Denver Co., 415 U. S., at 48-50.
The construction of § 706 (k) that petitioners advocate clashes with this congressional design. Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. See n. 6, infra. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme.
The District Court felt that granting a fee award to respondent would be a "windfall" based on the unforeseeable fortuity that filing a protective federal suit became necessary. 458 F. Supp., at 81. We agree with the District Court that the *66 availability of a federal fee award for work done in state proceedings following EEOC referral and deferral should not depend upon whether the complainant ultimately finds it necessary to sue in federal court to obtain relief other than attorney's fees. But our agreement with the District Court compels us to reject its conclusion. It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress' plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that § 706 (f) (1)'s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney's fees for legal work done in state and local proceedings.[6]

III
Against the strong considerations favoring an award of fees, petitioners make three arguments. First, they contend that awarding fees for work done in state proceedings for *67 which the State does not authorize fees[7] infringes on the State's powers under the Tenth Amendment. Second, they argue that Congress' intent to pre-empt the state law has not been clearly expressed. Third, they contend that even if § 706 (k) authorizes fees for work done in state proceedings in some instances, denial of an award here was within the District Court's discretion.
We must reject petitioners' Tenth Amendment argument. Congress' power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees in connection with state proceedings. See Hutto v. Finney, 437 U. S. 678 (1978); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976).
Petitioners cite Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), Schwartz v. Texas, 344 U. S. 199 (1952), and Florida v. United States, 282 U. S. 194 (1931), in support of their argument that Congress' intent to pre-empt state regulation of the administration of state proceedings is not clearly expressed in § 706 (k) and should not be inferred. We find these cases inapposite. Section 706 (k) does not "pre-empt" state law. "Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Alexander v. Gardner-Denver Co., 415 U. S., at 48-49. Title VII explicitly leaves the States free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums. § 706 (f) (1). One aspect of complete relief is an *68 award of attorney's fees, which Congress considered necessary for the fulfillment of federal goals. Provision of a federal award of attorney's fees is not different from any other aspect of the ultimate authority of federal courts to enforce Title VII. For example, if state proceedings result in an injunction in favor of the complainant, but no award for backpay because state law does not authorize it, the complainant may proceed in federal court to "supplement" the state remedy. The state law which fails to authorize backpay has not been pre-empted. In any event, if it can be said that § 706 (k) pre-empts the state rule, we believe that Congress' intent to achieve this result is manifest.
We also find no merit in petitioners' suggestion that denial of a fee award was within the District Court's discretion. As noted earlier, the court's discretion to deny a fee award to a prevailing plaintiff is narrow. Absent "special circumstances," see Newman v. Piggie Park Enterprises, 390 U. S., at 402; Christiansburg Garment Co. v. EEOC, 434 U. S., at 416-417, fees should be awarded. Petitioners argue that the availability of a Division attorney to present the "case in support of the complaint" is a "special circumstance" which should deprive a prevailing complainant of a fee award. Clearly, however, an attorney is needed to assist the complainant during the state proceedings, and the Division employee does not take the place of private counsel.
The New York state procedure, to which respondent's charge was referred, provides for adversary quasi-judicial hearings leading to findings of fact, administrative appeals, and judicial review. The first stage of the state administrative action is the investigation; this results in either a finding of probable cause or a dismissal of the complaint. N. Y. Exec. Law § 297 (2) (McKinney Supp. 1979). A finding of probable cause after investigation is a necessary prelude to the public hearing. § 297 (4) (a). State law makes no provision for the participation of a Division attorney in the investigation, and a complainant is not represented by a Division attorney *69 at this preliminary stage. See Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 4-5.
Following the investigation, the Division attempts to conciliate the complainant's grievance with the employer. N. Y. Exec. Law §§ 297 (3) (a), (b), and (c) (McKinney 1972). No Division attorney participates in the conciliation efforts on behalf of the complainant, and the Division staff is even empowered to execute a settlement agreement with the employer over the complainant's objections. § 297 (3) (c).
If efforts at conciliation fail and a hearing is scheduled, state law provides:
"The case in support of the complaint shall be presented by one of the attorneys or agents of the division and, at the option of the complainant, by his attorney. With the consent of the division, the case in support of the complainant may be presented solely by his attorney." § 297 (4) (a) (McKinney Supp. 1979).
At the time of the hearing on respondent's complaint, however, the practice of the Division was to involve one of its attorneys only if the complainant was not represented by private counsel. Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5.[8] Complainants were "encouraged" to obtain private counsel due to a growing caseload and staff limitations. App. to Pet. for Cert. A58-A59.
At the appellate level, the Division attorney appears only to support and seek enforcement of orders issued by the Division and the Appeal Board. N. Y. Exec. Law § 298 (McKinney Supp. 1979). The Division attorney does not *70 represent the complainant on an appeal from an order adverse to the claimant. In addition, the Division cannot appeal from an order of the Human Rights Appeal Board reversing a Division order. See Brief for New York State Attorney General and New York Division of Human Rights as Amici Curiae 5-6.
It is thus obvious that the assistance provided a complainant by the Division attorney is not fully adequate, and that the attorney has no obligation to the complainant as a client. In fact, at times the position of the Division may be detrimental to the interests of the complainant and to enforcement of federal rights. Representation by a private attorney thus assures development of a complete factual record at the investigative stage and at the administrative hearing. At both, settlement is possible and is encouraged. A Division employee cannot act as the complainant's attorney for purposes of advising him whether to accept a settlement. Retention of private counsel will help assure that federal rights are not compromised in the conciliation process.
If a Division attorney appears at the public hearing, he does not represent the interests of the complainant, but rather those of the State. Id., at 5; App. to Pet. for Cert. A59-A60. He presents the "case in support of the complaint," not in support of the complainant. N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979). Upon appeal, the Division attorney is authorized only to support the order entered by the Division or the Appeal Board. Without doubt, the private attorney has an important role to play in preserving and protecting federal rights and interests during the state proceedings.[9]
*71 In sum, we conclude that §§ 706 (f) and 706 (k) of Title VII authorize a federal-court action to recover an award of attorney's fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII. We also conclude that no special circumstances exist in this case that would justify denial of a fee award.
The judgment of the Court of Appeals is therefore affirmed.
It is so ordered.
THE CHIEF JUSTICE joins the Court's opinion except footnote 6 thereof; in his view, resolution of the issue dealt with in that footnote is not necessary.
MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST would reverse the judgment essentially for the reasons given by Judge Mulligan in dissenting from the judgment of the Court of Appeals.
MR. JUSTICE STEVENS, concurring in the judgment.
While I agree with most of what is said in the Court's opinion, it is useful to emphasize that this federal litigation was commenced in order to obtain relief for respondent on the merits of her basic dispute with petitioners, and not simply to recover attorney's fees. Whether Congress intended to authorize a separate federal action solely to recover costs, including attorney's fees, incurred in obtaining administrative relief in either a deferral or a nondeferral State is not only doubtful but is a question that is plainly not presented by this record.
*72 On July 13, 1977, when the EEOC issued respondent a letter notifying her that she had a right to file an action in federal court, and on September 30, 1977, when she commenced her federal-court action, state judicial review of the state administrative proceedings had not yet been completed. It was not until sometime in February 1978, after the federal judicial proceeding had been pending for several months, that all questions other than the fee issue were finally removed from the federal case. It is clear, therefore, that under the plain language of § 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k),[*] the Federal District Court then had jurisdiction to allow the prevailing party to recover attorneys fees as a part of her costs.
A quite different question would be presented if, before any federal litigation were commenced, an aggrieved-party had obtained complete relief in the administrative proceedings. It is by no means clear that the statute, which merely empowers a "court" to award fees, would authorize a fee allowance when there is no need for litigation in the federal court to resolve the merits of the underlying dispute. Indeed, it is not even clear that the EEOC has the authority to issue a "right to sue" letter, empowering the complainant to bring suit in federal court, after the complainant has obtained complete relief on the merits of his claim in administrative proceedings. See § 706 (f) (1) of the Civil Rights Act of 1964 as amended, 42 U. S. C. § 2000e-5 (f) (1). In any event, the facts of this case present no occasion for the Court's resolution of the issue, ante, at 66. All that needs to be decided is whether an allowance of fees may properly cover the work *73 performed in the administrative proceedings that were a prerequisite to the court action. I agree with the Court's disposition of that issue, and would also observe that the same analysis would apply to work performed in appearing before the federal agency in a nondeferral State.
Accordingly, I concur in the judgment.
NOTES
[*]  Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, Judith T. Kramer, Arnold Flescher, and Barbara Levy, Assistant Attorneys General, and Ann Thacher Anderson for the New York State Attorney General et al.; by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and Bill Lann Lee for the NAACP Legal Defense and Educational Fund, Inc.; and by Charles C. Parlin, Jr., and Peter Bienstock for the Puerto Rican Legal Defense & Education Fund, Inc.
[1]  Respondent was represented by counsel employed by the NAACP Special Contribution Fund.
[2]  In cases involving federal employees, all the Courts of Appeals that have considered the question have upheld fee awards under § 706 (k) for work done in federal administrative proceedings that must be exhausted as a condition to filing an action in federal court. E. g., Brown v. Bathke, 588 F. 2d 634, 638 (CA8 1978); Fischer v. Adams, 572 F. 2d 406 (CA1 1978); Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977); Foster v. Boorstin, 182 U. S. App. D. C. 342, 561 F. 2d 340 (1977); Johnson v. United States, 554 F. 2d 632 (CA4 1977).
[3]  See, e. g., § 706 (f) (1), 78 Stat. 260, as redesignated, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f) (1) (court may stay "further proceedings" pending the termination of "State or local proceedings"); § 706 (i), 78 Stat. 261, as amended, 86 Stat. 107, 42 U. S. C. § 2000e-5 (i) (Commission may commence "proceedings" to compel compliance with court order).
[4]  Other provisions of Title VII also evidence the policy of promoting federal-state cooperation in enforcement. Section 706 (b), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (b), requires the EEOC to "accord substantial weight" to a state administrative determination, and § 709 (b), 78 Stat. 262, as amended, 86 Stat. 108, 42 U. S. C. § 2000e-8 (b), authorizes the EEOC to "cooperate with State and local agencies charged with the administration of State fair employment practices laws" in funding research and other mutually beneficial projects, and to enter into work-sharing agreements with those agencies to facilitate the processing of complaints.
[5]  We thus disagree with the District Court that the propriety of EEOC's issuance of the right-to-sue letter in this case is "very doubtful." 458 F. Supp. 79, 80 (SDNY 1978). As we read the statute, the Commission was required to issue the letter after 180 days, regardless of the posture of any state proceedings.
[6]  We note that if fees were authorized only when the complainant found an independent reason for suing in federal court under Title VII, such a ground almost always could be found. Section 706 (f) (1) requires the EEOC to give the complainant a "right to sue" letter if, after it assumes concurrent jurisdiction over the complaint, it does not sue within 180 days. Thus, after waiting 240 days (60 days deferral to the state or local agency and 180 days for the EEOC to act after deferral), the complainant appears to have an absolute right to resort to an action in federal court. The federal court may stay the action for a maximum of 60 more days, to permit completion of state proceedings. § 706 (f) (1). It took three years for the New York proceedings in this case finally to provide respondent all the relief she desired other than attorney's fees. It is doubtful that the systems of many States could provide complete relief within 240 days. The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress' intent to encourage full use of state remedies.
[7]  The Human Rights Law of the State of New York does not authorize an award of counsel fees for work done in either state administrative or judicial proceedings. See State Commission for Human Rights v. Speer, 35 App. Div. 2d 107, 111-112, 313 N. Y. S. 2d 28, 33 (1970), rev'd on other grounds, 29 N. Y. 2d 555, 272 N. E. 2d 884 (1971); State Division of Human Rights v. Gorton, 32 App. Div. 2d 933, 934, 302 N. Y. S. 2d 966, 968 (1969).
[8]  On October 18, 1977, Division regulations were amended to provide for the presentation of the case in support of the complaint solely by the attorney for the complainant, upon consent of the Division. The regulation requires the Division attorney to submit a statement to the hearing examiner in lieu of appearance. 9 N. Y. C. R. R. § 465.11 (d) (2).
[9]  We also reject petitioners' argument, not suggested in the petition for certiorari, that respondent's representation by a public interest group is a "special circumstance" that should result in denial of counsel fees. Federal Courts of Appeals' decisions are to the contrary. See, e. g., Reynolds v. Coomey, 567 F. 2d 1166 (CA1 1978); Torres v. Sachs, 538 F. 2d 10, 13 (CA2 1976). Congress endorsed such decisions allowing fees to public interest groups when it was considering, and passed, the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988, which is legislation similar in purpose and design to Title VII's fee provision. See H. R. Rep. No. 94-1558, pp. 5 and 8, n. 16 (1976).
[*]  That section provides in part:

"In any action or proceeding under this title the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ."


94 U.S. 22 (1876)
HUMES
v.
SCRUGGS.
Supreme Court of United States.

*23 Mr. Thomas C. Fullerton and Mr. F.P. Ward for the appellant.
No counsel appeared for the appellee.
MR. JUSTICE HUNT delivered the opinion of the court.
It is not entirely certain what the court is called upon to review in the present case. By the decree of the court below it is recited that upon the hearing of the cause upon the pleadings it is adjudged that the bill be dismissed. The record, however, comes to us with voluminous evidence upon the merits, and we have not the advantage either of an opinion of the court or of a brief by the party obtaining the decree. It will be necessary, therefore, to give attention to the case in both of its aspects.
The bill was filed by the assignee in bankruptcy of John W. Scruggs against the bankrupt's wife, alleging the adjudication of bankruptcy made upon a voluntary petition filed in June, 1868, and the fraudulent conveyance, in January, 1866, of property of the value of $50,000; that this covered all the property of the bankrupt, and that he was then insolvent. The defendant answered, admitting the conveyance, denying the fraud, alleging that the property conveyed to her was purchased and paid for with her money and for her, and that she believed for *24 several years that the title was taken in her name; that it was improved by her husband at an expense not exceeding $18,000, of which $4,400 belonged to her separate estate, and $2,400 was realized from the sale of a portion of the land. She denied that the deed to her conveyed all the property that her husband possessed, but did not state how much remained, or what it was, and she denied knowledge of his insolvency, if it existed.
As a distinct defence in bar of the recovery sought, she further alleges that on the eleventh day of November, 1867, by her next friend, she filed a bill in the State court against her husband, to which he answered on the same day, in which proofs were taken; and that in December of that same year a decree was rendered, in which the said deed of Jan. 14, 1866, was in all things ratified and confirmed. A copy of the decree is annexed to her answer. To this answer the plaintiff, the assignee, filed a general replication. It is supposed that this suit and this decree, forming a part of the answer of Mrs. Scruggs, furnished the support to the decree dismissing the bill in the present suit on the pleadings.
To this result there are two valid objections:  -
1. By the interposition of a general replication, every allegation in the answer of Mrs. Scruggs not responsive to the bill was denied. No such allegation could be taken as true, but must be proved before it could be used by the party making it. The allegation of a former suit and of the decree therein came under this rule. It was denied that there was such a former suit, and that a decree was rendered therein affirming the transaction of May 14, 1866. How, then, can it be said with accuracy, upon the pleadings, when the answer was not responsive, and when a replication was filed, that there was a former suit and decree, and that by reason thereof the present bill must be dismissed? Jacks v. Nichols, 5 N.Y. 178.
2. Let it be assumed that the former suit and the decree therein are proved in a legal manner, still we cannot assent to the theory of its conclusiveness here. There would be little difficulty in making and sustaining fraudulent transfers of property, if the parties thereto could by a subsequent suit between themselves so fortify the deed that no others could attack it. *25 Mrs. Scruggs files her bill on the 11th November against her husband, to obtain a confirmation of the former proceeding. Her husband, nothing loth, files his answer on the same day. Twenty-one days thereafter, viz., Dec. 2, the term of the court opens. The papers are presented, proofs are filed, the counsel appear, and a decree of confirmation is adjudged. Certainly no one can complain in this instance of the delays of justice.
But without reference to these indications of collusion, we are of the opinion that a decree between these parties alone, cannot bind the assignee in bankruptcy. The principle is well settled that a judgment binds only the parties to it and their privies. Bank v. Hodges, 12 Ala. 118, was a decision upon a case very similar to the one before us.
In Mutual Benefit Life Ins. Co. v. Tisdale, 91 U.S. 244, the principle is thus laid down: "The books abound in cases which show that a judgment upon the precise point in controversy cannot be given in evidence in another suit against one not a party or privy to the record. This rule is applied not only to civil cases, but to criminal cases, and to public judicial proceedings which are of the nature of judgments in rem." Many cases are cited in illustration of the principle.
This decree no doubt concluded Mr. Scruggs on the question of fraud. But he was already concluded by his deed, and we do not see that the estoppel by the decree is any more conclusive than that by the deed. Neither of them affect the assignee in bankruptcy, who is expressly authorized by the Bankrupt Act to attack any transfer made by the bankrupt in fraud of his creditors. Sect. 14.
If we look at the case upon the merits, we also find the result to be in favor of the assignee.
On the 14th of May, 1866, the husband conveys to his wife certain real estate in Huntsville, Ala., called the racecourse property. The value of this property is estimated by the witnesses on the one side as high as $25,000, and by one of those on the other as low as $10,000. Others put it at $15,000 and $20,000. He conveyed to her at the same time the interest of one-third of the profits of a hotel in Corinth for five years, and afterwards conveyed to her the fee of the premises, the consideration for which is recited to be the sum of *26 $25,000. What the actual value of this property was does not distinctly appear. At this time he was hopelessly insolvent. Large debts are proved against him, and in his answer he admits his indebtedness then to have amounted to $300,000. In a deed of the same date, executed by the husband and wife to Francis Sanders, it is recited as follows, viz.:  -
"Whereas the undersigned, John W. Scruggs, of the county and State aforesaid, is largely indebted to different persons residing in different localities and States; and whereas this indebtedness is individual and partnership indebtedness, being the partnership indebtedness of Scruggs, Donegan, & Co.; and whereas he is also largely involved as indorser for others, and likewise as surety, and as a member of the firm of Scruggs, Donegan, & Co., as acceptors of bills of exchange; and whereas, owing to the loss or displacement, resulting from the present civil war, of explanatory memoranda, schedules, &c., it is impossible for him at this time to state with accuracy the extent of his liabilities or their character, or to ascertain how much thereof has been remitted by the laches of creditors; and whereas he is anxious to adjust, settle, and discharge, to the extent of his ability, all just claims against him, but is unable at this time, for the reasons above stated, to nominate with accuracy his creditors."
This deed conveyed to Sanders certain lands in Huntsville, and certain lands in Arkansas, among others the plantation called "the Island Place," in trust, to convey the same to such creditors as Scruggs himself should, within twelve months, nominate and appoint.
We may safely assume the total insolvency of the husband at the time of the execution of the deed in question, and, if that is important, that the wife was aware of it.
It is sought to sustain the deed to the wife upon the theory that the land in question was purchased by her husband for her and with her money, and that she believed for years that the title had been taken in her name. Such is the allegation of her answer. The proof is to the contrary. It is true, according to some of the testimony, that she was entitled to certain sums from her relations, which were received by her husband, viz., $3,100 in 1852, or thereabouts; $2,300 at about the same time; $1,200 for a carriage in 1853, and $400 from *27 Mr. Coxe. These are the sums as stated by herself in her testimony, amounting to $7,000. In the deed of May, 1866, when we may suppose that both the husband and wife would place the sum at the highest amount that truth would permit, it is given at $4,500. We take it, therefore, at that sum. These sums so received he held and used in his business until the year 1866, when his failure occurred. Neither the husband nor the wife testifies that there was any agreement that the husband should hold these sums as and for the estate of his wife, or that when the property in question was purchased it was agreed to be held as her estate. On the contrary, the moneys were held and used by the husband for nearly fifteen years as his own property, and mingled with his personal and partnership affairs. The explanation given by his brother, if true, which is very doubtful, is essentially vicious. He states that it was at his suggestion that the deed was taken to Scruggs instead of his wife. He adds: "At the time referred to, John W. Scruggs was about to open a commission house in Charleston, and was without means or credit, and my reason for giving him this advice was, that the conveyance to himself would give him a credit, whereas then he had none."
But it is probably untrue in fact that this land was bought for her, as she alleges in the answer, or that she believed at any time that the title was taken in her name. As already suggested, the best possible case for the parties would be set forth in the deed which is the subject of the controversy. No such pretence is there set up. The consideration is based upon alleged indebtedness to the wife of a sum of $3,100 received on her account, of another like sum of $2,300, and of her release of dower in certain lands. The pretence that these sums had been agreed to be invested in these lands, and that she supposed it was done, is not suggested. We cannot but suppose this to be an afterthought.
If the money which a married woman might have had secured to her own use is allowed to go into the business of her husband, and be mixed with his property, and is applied to the purchase of real estate for his advantage, or for the purpose of giving him credit in his business, and is thus used for a series of years, there being no specific agreement when the *28 same is purchased that such real estate shall be the property of the wife, the same becomes the property of the husband for the purpose of paying his debts. He cannot retain it until bankruptcy occurs, and then convey it to his wife. Such conveyance is in fraud of the just claims of the creditors of the husband. Fox v. Meyer, 54 N.Y. 125, 131; Savage v. Murphy, 34 id. 308; Babcock v. Gokler, 24 id. 623; Robinson v. Stewart, 10 id. 190; Carpenter v. Roe, id. 227; Hard's Lessees v. Longworth, 11 Wheat. 199.
Fraud or no fraud is generally a question of fact to be determined by all the circumstances of the case. If the husband in a state of absolute bankruptcy conveys to his wife property fairly worth $15,000 to $20,000, with no present consideration passing, but with a recital of past indebtedness to her to less than a fifth of its value, the transaction is fraudulent and void as to creditors. Authorities supra.
We attach no importance to the recited releases of dower as adding a value to the consideration. The lands sold to Derrich, in which it is recited that the wife was dowable, had been conveyed to him in 1860, and the wife had joined in the conveyance and acknowledged the same. Derrich also denies that, in May, 1866, any release of dower was made or was delivered to him.
The lands sold to Peters do not appear ever to have been paid for by him, nor does it appear that they were ever conveyed to him. He had a bond for a title only.
The lands conveyed to Sanders were so conveyed in trust, to be conveyed to such persons as Scruggs should, within twelve months, nominate and appoint.
The pretended releases were mere devices to give color to a fraudulent deed. No benefit was given to the estate by means of them, nor did Mrs. Scruggs part with any thing of value.
Decree reversed and cause remanded, with directions to enter a decree for the complainant in accordance with this opinion.


42 U.S. 289
1 How. 289
11 L.Ed. 135
JAMES TODD, APPELLANT,v.OTIS DANIELL, DEFENDANT.
January Term, 1843

1
AN agreement in writing between the counsel, as well for the appellant as for the appellee, that the decree of the Circuit Court in this case shall be affirmed with legal damages and costs for the said Daniell, having been filed; it is thereupon considered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs and damages, at the rate of 6 per centum per annum; and also that the said appellee recover of the said appellant, the further sum of $125 for the costs of the transcript of the record in the Circuit Court according to the said agreement.


355 U.S. 80 (1957)
ROSENBLOOM
v.
UNITED STATES.
No. 451.
Supreme Court of United States.
Decided November 25, 1957.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
Petitioner pro se.
Solicitor General Rankin, Assistant Attorney General Rice and Joseph F. Goetten for the United States.
PER CURIAM.
The petition for a writ of certiorari is granted. The Court of Appeals has held, without opinion, that petitioner's notice of appeal from the District Court, filed on July 8, 1957, was untimely. The Government has conceded that the Clerk of the District Court did not mail to petitioner or his attorney a notice of the entry of the order of June 14 denying petitioner's motion for a new trial and judgment of acquittal, as required by Rule 49 (c), Federal Rules of Criminal Procedure. In our opinion the record in this case fails to show with sufficient certainty that petitioner or his attorney had actual notice of the entry of that order by reason of the proceedings which took place in the District Court on June 14.[*] Cf. *81 Huff v. United States, 192 F. 2d 911; Gonzalez v. United States, 233 F. 2d 825, 827, reversed on other grounds, 352 U. S. 978. What transpired at those proceedings is too ambiguous to permit the conclusion that petitioner and his attorney were not justified in believing that petitioner's time to appeal would begin to run on July 8. In these circumstances we think that the Court of Appeals erred in holding that petitioner's notice of appeal was untimely. Rule 37 (a) (2), Fed. Rules Crim. Proc.; see Carter v. United States, 168 F. 2d 310. The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
MR. JUSTICE BURTON, with whom MR. JUSTICE CLARK concurs, dissenting.
Petitioner was present in open court with his attorney at the time the court overruled his motion for a new trial. He thus had actual notice of the denial of his motion and was not entitled to rely upon an additional notice in writing from the clerk to the same effect. The colloquy quoted by the court took place later, "after calling other motions in other cases." At that time this case "was again called by the Judge and the proceedings as indicated in the transcript of the official Court reporter took place." Especially in the light of the time interval *82 between the denial of the motion and the colloquy quoted in the opinion, I believe the Court of Appeals was justified in concluding that petitioner's counsel should have understood that his motion had been denied on June 14.
NOTES
[*]  The record shows the following:

"The COURT: . . .
.....
"Do you want some time for your client before he turns in?
"Mr. SHAW: Your Honor, I was going to ask for some time in which to get his affairs straightened out, and within which to file an appeal, should we so desire to do.
"The COURT: Very well. If you file an appeal, of course, if you apply for bond, I will tell you now that I will grant you bond. Be permitted to go under the bond you are under now. How much time do you want?
"Mr. SHAW: About two weeks, your Honor.
"The COURT: How about Monday, July 1st, or do you want it the 8th, the following Monday?
"Mr. SHAW: That will be all right.
"The COURT: Be given until July 8th.
"Mr. SHAW: Thank you."


392 U.S. 299 (1968)
JONES
v.
UNITED STATES.
No. 135.
Supreme Court of United States.
Decided June 10, 1968.
ON PETITION FOR REHEARING.
Herbert Monte Levy for petitioner.
Solicitor General Marshall, Assistant Attorney General Vinson, and Philip R. Monahan for the United States.
PER CURIAM.
The petition for rehearing is granted and the order denying the petition for writ of certiorari, 389 U. S. 835, is set aside. The petition for a writ of certiorari is granted. The judgment of the Court of Appeals for the Second Circuit is vacated and the case is remanded to that court for further consideration in light of Bruton v. United States, 391 U. S. 123. See Roberts v. Russell, ante, p. 293.
MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for the reasons stated in MR. JUSTICE WHITE'S dissenting opinion in Bruton v. United States, 391 U. S. 123, 138 (1968).
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.


316 U.S. 572 (1942)
OVERNIGHT MOTOR TRANSPORTATION CO., INC.
v.
MISSEL.
No. 939.
Supreme Court of United States.
Argued April 6, 7, 1942.
Decided June 8, 1942.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
*573 Messrs. J. Ninian Beall and John R. Norris for petitioner.
Mr. George A. Mahone, with whom Messrs. W. Hamilton Whiteford and William O. Tydings were on the brief, for respondent.
MR. JUSTICE REED delivered the opinion of the Court.
This case involves the application of the overtime section of the Fair Labor Standards Act of 1938[1] to an employee working irregular hours for a fixed weekly wage.
*574 Respondent, Missel, was an employee of the petitioner, Overnight Motor Transportation Company, a corporation engaged in interstate motor transportation as a common carrier. He acted as rate clerk and performed other incidental duties, none of which were connected with safety of operation. The work for which he was employed involved wide fluctuations in the time required to complete his duties. The employment of respondent began before the effective date of the Fair Labor Standards Act, October 24, 1938, and terminated October 19, 1940. Until November 1, 1938, his salary was $25.50 per week and thereafter $27.50. Time records are available for only a third of the critical period, and these show an average workweek of 65 hours, with a maximum of 80 for each of two weeks in the first year of the Act's operation and a maximum of 75 hours in each of three weeks in the second year. Nothing above the weekly wage was paid, because these maximum workweeks, computed at the statutory minimum rates with time and a half for overtime for the years in question, would not require an addition to the weekly wage.
Respondent brought a statutory action to recover alleged unpaid overtime compensation in such sum as might be found due him, an additional equal amount as liquidated damages, and counsel fee.[2] The trial court, refusing *575 to hear evidence on the precise amount claimed, decided in favor of the petitioner on the ground that an agreement for a fixed weekly wage for irregular hours satisfied the requirements of the Act. Under such circumstances the court was of the view that pay would be adequate which amounted to the required minimum for the regular hours and time and a half the minimum for overtime. 40 F. Supp. 174. The Circuit Court of Appeals reversed with directions to enter judgment for the plaintiff in accordance with its opinion, an order which we interpret as authorizing a hearing in the trial court as to the amounts due. 126 F.2d 98. As the questions involved were important in the administration of the Fair Labor Standards Act, we granted certiorari.
Petitioner renews here its contentions that the private right to contract for a fixed weekly wage with employees in commerce is restricted only by the requirement that the wages paid should comply with the minimum wage schedule of the Fair Labor Standards Act, § 6, with overtime pay at time and a half that minimum, that in any event the Act does not preclude lump sum salaries in excess of the minimum, and that a contrary interpretation of the statute would render it unconstitutional.
It is plain that the respondent as a transportation worker was engaged in commerce within the meaning of the Act,[3] and unless specifically exempted was entitled to whatever benefits the overtime provisions conferred.
While now conceding that United States v. Darby, 312 U.S. 100, settles the constitutional power of Congress to *576 legislate against labor conditions detrimental to a minimum standard of living required for the general well-being of workers, petitioner argues that there is no power under the Constitution to regulate the hours or wages of workers whose pay, in every instance, at least equals the minimum and whose hours are not injurious to health. Freedom of contract between employer and employee, it is urged, is destroyed by such an interpretation.[4] But hours or wages not patently burdensome to health may yet be subject to regulation to achieve other purposes. We assume here the statutory objectives discussed later, i.e., that the Act is aimed at hours as well as wages. The commerce power is plenary,[5] may deal with activities in connection with production for commerce,[6] and, as said in the Darby case, may extend "to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce." p. 118. Long hours may impede the free interstate flow of commodities by creating friction between production areas with different length work weeks, by offering opportunities for unfair competition, through undue extension of hours, and by inducing labor discontent apt to lead to interference with commerce through interruption of work. Overtime pay probably will not solve all problems of overtime work, but Congress may properly use it to lessen the irritations. Substandard labor conditions were deemed by Congress to be "injurious to the *577 commerce and to the states from and to which the commerce flows." United States v. Darby, 312 U.S. 100, 115. To protect that commerce from the consequences of production of goods under substandard conditions, it may choose means reasonably adapted to those ends, including regulation of intrastate activities, p. 121, by minimum wage and maximum hour requirements, p. 123. Compare Santa Cruz Co. v. Labor Board, 303 U.S. 453, 466. If overtime pay may have this effect upon commerce, private contracts made before or after the passage of legislation regulating overtime cannot take the overtime transactions "from the reach of dominant constitutional power." Norman v. B. & O.R. Co., 294 U.S. 240, 306-311. If, in the judgment of Congress, time and a half for overtime has a substantial effect on these conditions, it lies with Congress' power to use it to promote the employees' well-being.
Statutory Construction. The petitioner attacks the basic conceptions upon which the Circuit Court of Appeals determined that the compensation paid by the respondent violated § 7 (a) of the Act.[7] That court felt that "one of the fundamental purposes of the Act was to induce work-sharing and relieve unemployment by reducing hours of work." We agree that the purpose of the Act was not limited to a scheme to raise substandard wages first by a minimum wage and then by increased pay for overtime work. Of course, this was one effect of the time and a half provision, but another and an intended effect was to require extra pay for overtime work by those covered by the Act even though their hourly wages exceeded the statutory minimum. The provision of § 7 (a) requiring this extra pay for overtime is clear and unambiguous. It calls for 150% of the regular, not the minimum, wage. By this requirement, although overtime was not flatly prohibited, *578 financial pressure was applied to spread employment to avoid the extra wage and workers were assured additional pay to compensate them for the burden of a workweek beyond the hours fixed in the Act. In a period of widespread unemployment and small profits, the economy inherent in avoiding extra pay was expected to have an appreciable effect in the distribution of available work. Reduction of hours was a part of the plan from the beginning. "A fair day's pay for a fair day's work" was the objective stated in the Presidential message which initiated the legislation.[8] That message referred to a "general maximum working week," "longer hours on the payment of time and a half for overtime" and the evil of "overwork" as well as "underpay." The message of November 15, 1937, calling for the enactment of this type of legislation referred again to protection from excessive hours.[9] Senate Report No. 884, just cited, page 4, the companion House Report[10] and the Conference report[11] all spoke of maximum hours as a separately desirable object. Indeed, the form of the Act itself in setting up two sections of standards, § 6 for wages and § 7 for hours, emphasizes the duality of the Congressional purpose. The existence of such a purpose is no less certain because Congress chose to use a less drastic form of limitation than outright prohibition of overtime. We conclude that the Act was designed to require payment for overtime at time and a half the regular pay, where that pay is above the minimum, as well as where the regular pay is at the minimum.[12]
*579 We now come to the determination of the meaning of the words "the regular rate at which he is employed." Since we have previously determined in this opinion, in the discussion of petitioner's objection to the application of the Act on the ground of unconstitutionality, that the scope of the commerce power is broad enough to support federal regulation of hours, we are concerned at this point only with the method of finding the regular rate under the contract with respondent. Congress might have sought its objective of clearing the channel of commerce of the obstacles of burdensome labor disputes by minimum wage legislation only. We have seen that it added overtime pay. The wages for minimum pay are expressed in terms of so much an hour. See. 6 (a) (1)  -  "Not less than 25 cents an hour" with raises for succeeding years or by order of the Administrator under § 8. Cf. Opp Cotton Mills v. Administrator, 312 U.S. 126. Neither the wage, the hour nor the overtime provisions of §§ 6 and 7 on their passage spoke specifically of any other method of paying wages except by hourly rate.[13] But we have no doubt that pay by the week, to be reduced by some method of computation to hourly rates, was also covered by the Act.[14] It is likewise abundantly clear from the words of § 7 that the unit of time under that section within which to distinguish regular from overtime is the week. "No employer shall . . . employ any of his employees . . . (1) for a workweek longer than forty-four hours .. ." § 7 (a) (1).[15]
*580 No problem is presented in assimilating the computation of overtime for employees under contract for a fixed weekly wage for regular contract hours which are the actual hours worked,[16] to similar computations for employees on hourly rates. Where the employment contract is for a weekly wage with variable or fluctuating hours the same method of computation produces the regular rate for each week. As that rate is on an hourly basis, it is regular in the statutory sense, inasmuch as the rate per hour does not vary for the entire week, though week by week the regular rate varies with the number of hours worked. It is true that the longer the hours, the less the rate and the pay per hour. This is not an argument, however, against this method of determining the regular rate of employment for the week in question. Apart from the Act, if there is a fixed weekly wage regardless of the length of the workweek, the longer the hours the less are the earnings per hour. This method of computation has been approved by each circuit court of appeals which has considered such problems. See Warren-Bradshaw Drilling Co. v. Hall, 124 F.2d 42, 44; Bumpus v. Continental Baking Co., 124 F.2d 549, 552, cf. Carleton Screw Products Co. v. Fleming, 126 F.2d 537, 541. It is this quotient which is the "regular rate at which an employee is employed" under contracts of the types described and applied in this paragraph for fixed weekly compensation for hours, certain or variable.[17]
*581 Petitioner invokes the presumption that contracting parties contemplate compliance with law and contends that accordingly there is no warrant for construing the contract as paying the employee only his base pay or "regular rate," regardless of hours worked. It is true that the wage paid was sufficiently large to cover both base pay and fifty per cent additional for the hours actually worked over the statutory maximum without violating section six. But there was no contractual limit upon the hours which petitioner could have required respondent to work for the agreed wage, had he seen fit to do so, and no provision for additional pay in the event the hours worked required minimum compensation greater than the fixed wage. Implication cannot mend a contract so deficient in complying with the law. This contract differs from the one in Walling v. Belo Corp., post, p. 624, where the contract specified an hourly rate and not less than time and a half for overtime, with a guaranty of a fixed weekly sum, and required the employer to pay more than the weekly guaranty where the hours worked at the contract rate exceeded that sum.
In the Circuit Court of Appeals[18] it was held that the liquidated damages provision, § 16(b) of the Act, 52 Stat. 1069, was mandatory on the courts, regardless of the good *582 faith of the employer or the reasonableness of his attitude. Petitioner attacks this conclusion as a denial of due process because, if the damage provision is mandatory, the employer is "without opportunity to test the issues before the courts," citing Ex parte Young, 209 U.S. 123, Wadley Southern Ry. Co. v. Georgia, 235 U.S. 651, and other similar cases. Petitioner points out that, if there was a failure to pay the statutory overtime, it resulted from an inability to determine whether the employee was covered by the Act.
Section 13 (b) (1)[19] exempts from § 7 employees for whom the Interstate Commerce Commission has power to establish maximum hours of service. This exemption was derived from the Motor Carrier Act of 1935, 49 Stat. 543, which authorized the Commission to regulate "maximum hours of service of employees." A definitive order leaving employees with the duties of respondent subject to the Fair Labor Standards Act was not passed by the Commission until March 4, 1941,[20] after respondent's employment ended. This conclusion, however, was foreshadowed by the ruling of the Commission, December 29, 1937[21] that it would limit regulations concerning maximum hours to employees whose functions affected the safety of operations. Other orders, bulletins and opinions pointing to the final conclusion intervened.[22] These various determinations now make it clear that respondent *583 was subject at all times since the effective date of the Fair Labor Standards Act to its provisions. The Interstate Commerce Commission never had the power to regulate his hours.
Perplexing as petitioner's problem may have been, the difficulty does not warrant shifting the burden to the employee. The wages were specified for him by the statute,[23] and he was no more at fault than the employer. The liquidated damages for failure to pay the minimum wages under §§ 6 (a) and 7 (a) are compensation, not a penalty or punishment by the Government.[24] Cf. Huntington v. Attrill, 146 U.S. 657, 667, 668, 674, 681; Cox v. Lykes Brothers, 237 N.Y. 376, 143 N.E. 226. The retention of a workman's pay may well result in damages too obscure *584 and difficult of proof for estimate other than by liquidated damages. Atchison, T. & S.F. Ry. Co. v. Nichols, 264 U.S. 348, 351; James-Dickinson Co. v. Harry, 273 U.S. 119. Nor can it be said that the exaction is violative of due process. It is not a threat of criminal proceedings or prohibitive fines, such as have been held beyond legislative power by the authorities cited by petitioner. Even double damages treated as penalties have been upheld as within constitutional power.[25]
Affirmed.
The CHIEF JUSTICE concurs in the result. MR. JUSTICE ROBERTS dissents.
NOTES
[1]   "SEC. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce  -

(1) for a workweek longer than forty-four hours during the first year from the effective date of this section.
(2) for a workweek longer than forty-two hours during the second year from such date, or
(3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 52 Stat. 1063; 29 U.S.C. § 207.
[2]   "SEC. 16. . . .

"(b) Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 52 Stat. 1069, 29 U.S.C. § 216.
[3]   "SEC. 3. As used in this Act  -

.....
(b) `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." 52 Stat. 1060, 29 U.S.C. § 203.
[4]   "It is Petitioner's contention that though the constitutionality is clearly settled as to the question of correcting `sub-standard labor conditions,' a construction of the Act which has no relationship whatsoever to `sub-standard labor conditions' would nonetheless be unconstitutional, for the potentiality of such a construction is to destroy freedom of contract between employer and employee."
[5]   Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37.
[6]   Santa Cruz Co. v. Labor Board, 303 U.S. 453, 464.
[7]   Note 1 supra.
[8]   May 24, 1937, 81 Cong. Rec. 4983, 75th Cong., 1st Sess., Sen. Rep. No. 884 on S. 2475, July 6, 1937, p. 2.
[9]   82 Cong. Rec. 11, 75th Cong., 2d Sess.
[10]   House Rep. 1452, 75th Cong., 1st Sess., pp. 14, 15.
[11]   83 Cong. Rec. 9246, 9254.
[12]   Cf. Bumpus v. Continental Baking Co., 124 F.2d 549, 551; Carleton Screw Products Co. v. Fleming, 126 F.2d 537, 539; Tidewater Optical Co. v. Wittkamp, 179 Va. 545, 551, 19 S.E. 2d 897, 899; McMillan v. Wilson & Co., 212 Minn. 142, 2 N.W. 2d 838, 839; see United States v. Darby, 312 U.S. 100, 125.
[13]   Sec. 3 (m) defined wage to include board, lodging or other facility customarily furnished employees. The Joint Resolution of June 26, 1940, for work relief and relief for the fiscal year 1941, § 3 (f) deals with piece work in Puerto Rico or the Virgin Islands. 54 Stat. 611, 616.
[14]   Any other interpretation would render almost useless the exemptions from the Act of employees in "executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman." § 13 (a) (1). Such employees are rarely paid by the hour.
[15]   The legislative history of the Fair Labor Standards Act is inconclusive as to the intended meaning of the words "the regular rate at which he is employed." The committee reports do not discuss them. The bill which came out of the conference and was adopted changed "regular hourly rate" of previous bills (S. 2475, introduced May 24, 1937; H.R. 7200, introduced May 24, 1937; and S. 2475 in the Senate, April 20, Calendar Day May 25, 1938) to "regular rate." Conference Report, 83 Cong. Rec. 9247, 75th Cong., 3rd Sess. "Hourly" may have been omitted as not descriptive of piecework or salary payments.
[16]   Wage divided by hours equals regular rate. Time and a half regular rate for hours employed beyond statutory maximum equals compensation for overtime hours.
[17]   This has been the Administrator's interpretation of the Act. Interpretative Bulletin No. 4 issued October 21, 1938, revised November, 1940. While the interpretative bulletins are not issued as regulations under statutory authority, they do carry persuasiveness as an expression of the view of those experienced in the administration of the Act and acting with the advice of a staff specializing in its interpretation and application. Cf. United States v. American Trucking Assns., 310 U.S. 534, 549; United States v. Darby, 312 U.S. 100, 118, n. 2; Graves v. Armstrong Creamery Co., 154 Kan. 365, 370, 118 P.2d 613, 616. Even negative construction may be significant. Trade Comm'n v. Bunte Bros., 312 U.S. 349, 351, 352.

Regulations on records issued pursuant to § 11 (a) have since September 15, 1941, referred to Interpretative Bulletin 4 for the method of computation. 6 Fed. Reg. 4695, n. 9.
[18]   126 F.2d 98, 111, and cases cited which so construed the Act.
[19]   "SEC. 13. . . . (b) The provisions of section 7 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935; . . ." 52 Stat. 1068; 29 U.S.C. § 213 (b).
[20]   Ex parte MC-2, 28 M.C.C. 125.
[21]   Ex parte MC-2, 3 M.C.C. 665, 667.
[22]   March 25, 1939, Interpretative Bulletin, Wage & Hour Division No. 9; May 9, 1939, Ex parte MC-28, 13 M.C.C. 481, 488; June 15, 1939, Ex parte MC-C-139, 16 M.C.C. 497; May 27, 1940, United States v. American Trucking Assns., 310 U.S. 534.
[23]   Cf. Labor Board v. Electric Vacuum Cleaner Co., 315 U.S. 685, 697-698.
[24]   The Government has collected the cases under the Act upon the point: "One line of cases holds that the `double damages' do not constitute a penalty incurred under the laws of the United States within the meaning of §§ 24(9) and 256 of the Judicial Code (28 U.S.C. §§ 41 (9) and 371). Robertson v. Argus Hosiery Mills, 121 F.2d 285, 286 (C.C.A. 6th), certiorari denied, 314 U.S. 681; Stewart v. Hickman, 36 F. Supp. 861 (W.D. Mo.); Kuligowski v. Hart, 43 F. Supp. 207, 4 Wage Hour Rept. 203 (N.D. Ohio); Wingate v. General Auto Parts Co., 40 F. Supp. 364 (W.D. Mo.); Barron v. F.H.E. Oil Co., 4 Wage Hour Rept. 551 (W.D. Tex.); Hart v. Gregory, 218 N.C. 184, 10 S.E.2d 644; Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706; Graves v. Armstrong Creamery Co., 154 Kan. 365, 118 P.2d 613; Emerson v. Mary Lincoln Candies, 173 Misc. 531, 17 N.Y.S.2d 851; affirmed 261 App. Div. 879, 26 N.Y.S.2d 489; affirmed, 287 N.Y. 33, 38 N.E.2d 234; Abroe v. Lindsay Bros. Co., 300 N.W. 456 (S.Ct. Minn.); Tapp v. Price-Bass Co., 147 S.W.2d 107 (S.Ct. Tenn.); Duke v. Helena-Glendale Ferry Co., 159 S.W. 2d 74, 5 Wage Hour Rept. 206 (S.Ct. Ark.); Dennis v. Equitable Equipment Co., 7 So.2d 397 (Ct. App. La.); Adair v. Traco Division, 192 Ga. 59, 14 S.E.2d 466. . . . The other line of cases holding § 16 (b) to be remedial rather than penal involves determination of the applicable statute of limitations. Collins v. Hancock, 4 Wage Hour Rept. 522 (D. La. Caddo Parish); Tucker v. Hitchcock, No. 370, S.D. Fla., Oct. 2, 1941; Klotz v. Ippolito, 40 F. Supp. 422 (S.D. Texas)."
[25]   Cf. Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512; Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26; Kansas City Southern Ry. Co. v. Anderson, 233 U.S. 325.


316 U.S. 350 (1942)
PEYTON
v.
RAILWAY EXPRESS AGENCY, INC. ET AL.
No. 903.
Supreme Court of United States.
Submitted May 1, 1942.
Decided May 25, 1942.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Robert L. Peyton submitted pro se.
Messrs. Harry S. Marx and Charles C. Evans submitted for respondents.
PER CURIAM.
Petitioner brought this suit in the District Court for the Western District of Texas, alleging that respondent, known to be an interstate carrier, had negligently failed to deliver to the addressee in California a package shipped from Waco, Texas, and claiming damages in the sum of $750,000. The trial court ordered petitioner to attach to his complaint a copy of the express receipt which he received *351 upon delivering the package to respondent. This receipt contained a $50 valuation. Thereupon the court granted respondent's motion to dismiss the complaint on the ground that the amount in controversy was less than the $3,000 necessary to sustain jurisdiction under 28 U.S.C. § 41(1), Jud. Code § 24(1). The Court of Appeals for the Fifth Circuit affirmed. We granted certiorari to inquire whether the suit could be maintained under 28 U.S.C. § 41(8), Jud. Code § 24(8), granting the district courts jurisdiction "Of all suits and proceedings arising under any law regulating commerce," irrespective of the amount involved.
The pertinent act of Congress is 49 U.S.C. § 20(11), originally the Carmack Amendment of 1906, 34 Stat. 593, since amended several times to its present form. The section requires an interstate common carrier receiving property for shipment to issue a receipt or bill of lading. The carrier is made liable to the holder "for any loss, damage, or injury to such property caused by it" or connecting carriers. If the injury does not occur on the initial carrier's line, but it responds in damages, it is entitled to recover over from the responsible carrier. Further, the initial carrier is made liable to the shipper for full damages sustained, notwithstanding any limitation of liability in the receipt or bill of lading, with the exception, important here, that where a carrier by authority or direction of the Interstate Commerce Commission maintains rates dependent upon the value of the property declared in writing by the shipper, such declaration also limits liability of the carrier for loss or damage to an amount not in excess of the declared value.
Following the Carmack Amendment, this Court in several cases upheld the power of the receiving carrier to limit its liability to an agreed valuation, made to obtain the lower of two or more rates. See Adams Express Co. v. *352 Croninger, 226 U.S. 491; Missouri, K. & T. Ry. Co. v. Harriman, 227 U.S. 657; Pierce Co. v. Wells, Fargo & Co., 236 U.S. 278. The so-called First Cummins Amendment of March 4, 1915, 38 Stat. 1196, prohibited in general any such limitation of liability. By the Second Cummins Amendment of August 9, 1916, 39 Stat. 441, Congress adopted the present provisions authorizing limitation of liability in the manner already noted, and substantially restored the rule of Adams Express Co. v. Croninger, supra.
Respondent, confessing error, asserts that under § 20 (11) as it now stands, a suit brought against a single interstate carrier for its negligent non-delivery, is one not merely to enforce a common law liability limited by an Act of Congress; but that petitioner's cause of action has its origin in and is controlled by such Act, and so "arises under" it. Any doubts as to the correctness of this position[1] are resolved by the Act of January 20, 1914, c. 11, 38 Stat. 278, 28 U.S.C. § 71, regulating removal to the federal courts of suits brought under the Carmack Amendment in the state courts.
After the Carmack Amendment a conflict of decisions had developed in the lower federal courts on the question whether suits for damages brought against interstate carriers under the amendment were suits "arising under" an act regulating commerce, so that their removal from state to federal district courts would be permitted. McGoon v. Northern Pacific Ry. Co., 204 F. 998; Storm Lake Tub & Tank Factory v. Minneapolis & St. L.R. Co., 209 F. 895; Adams v. Chicago G.W. Ry. Co., 210 F. 362. The decision *353 in the McGoon case, sustaining removal jurisdiction irrespective of the amount in controversy, was followed by the removal of many small suits against carriers to the federal district courts. Congress ended this practice by the Act of January 20, 1914, which forbade removal of suits under the Carmack Amendment involving less than $3,000.
The report of the House Judiciary Committee on H.R. 9994, 63d Cong., 2d Sess. (which was the same in substance as S. 3484, which became the 1914 law), expressly recognized the effect and authority of the decision in the McGoon case. In prohibiting removals where less than $3,000 is in controversy, instead of imposing the $3,000 limitation directly on all suits brought in the federal courts under the Carmack Amendment, Congress recognized that such suits arise under a law regulating commerce within the meaning of 28 U.S.C. § 41 (8), and sanctioned the exercise of original jurisdiction by the district courts in such cases. See H. Rep. No. 120, 63d Cong., 2d Sess.; also 51 Cong. Rec. 1327, 1544-1548.
Whether a suit arises under a law of the United States must appear from the plaintiff's pleading, not the defenses which may be interposed to, or be anticipated by it. Petitioner's pleading, which we have summarized, satisfies this requirement, since it adequately discloses a present controversy dependent for its outcome upon the construction of a federal statute. See Tennessee v. Union & Planters' Bank, 152 U.S. 454; Louisville & Nashville Ry. Co. v. Mottley, 211 U.S. 149; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25; Taylor v. Anderson, 234 U.S. 74; Gully v. First National Bank, 299 U.S. 109, 113.
Reversed.
NOTES
[1]   Compare Cincinnati, N.O. & T.P. Ry. Co. v. Rankin, 241 U.S. 319, 326; Chicago & E.I.R. Co. v. Collins Co., 249 U.S. 186, 191, with Adams Express Co. v. Croninger, 226 U.S. 491, 505; Missouri, K. & T. Ry. Co. v. Harriman, 227 U.S. 657, 672; Southern Ry. Co. v. Prescott, 240 U.S. 632, 639-40.


271 U.S. 303 (1926)
MISSOURI, KANSAS & TEXAS RAILWAY COMPANY ET AL.
v.
OKLAHOMA ET AL.
No. 205.
Supreme Court of United States.
Submitted March 5, 1926.
Decided May 24, 1926.
ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.
Messrs. Joseph M. Bryson, Charles S. Burg, Maurice D. Green, and Howard L. Smith for plaintiffs in error.
Messrs. William J. Horton, E.S. Ratliff, and Jackman A. Gill for defendants in error.
MR. JUSTICE BUTLER delivered the opinion of the Court.
The railroad of plaintiff in error runs through the city of McAlester, Oklahoma. At Comanche Avenue the main *304 line is on a fill, and at least one industrial or sidetrack is on a lower level. In September, 1921, the city applied to the state Corporation Commission for an order requiring the railway company to provide at that place a pass under its tracks and a highway across its right of way. The commission ordered that the company prepare a plan and an estimate of quantities and cost for a reinforced concrete subway, having two openings of specified dimensions; that the plan show the location of industrial tracks, and that these tracks conform to the street grade; that the plan and estimate be filed with the mayor of the city and the Corporation Commission; and that if the company and the city failed to agree on an apportionment of cost of the underpass, the commission would hear evidence on that subject. The company was ordered to have the underpass constructed and open for traffic within 90 days after arrangement by the city to pay its portion of the cost. The company filed its petition in the supreme court to have the order set aside on the grounds, among others, that it is repugnant to the due process clause of the Fourteenth Amendment, and impairs the obligation of a contract in violation of § 10 of Article I of the Constitution of the United States. The court affirmed the order (107 Okla. 23), and the case is here on writ of error. § 237, Judicial Code.
The line was built about 1873 on land granted by Congress to the company  -  then known as the Union Pacific Railroad Company, southern branch  -  for the construction of its railroad. Act of July 26, 1866, § 8, c. 270, 14 Stat. 289, 291. The city of South McAlester and the townsite of McAlester were laid out subsequently, pursuant to the Act of Congress of June 28, 1898, § 14, c. 517, 30 Stat. 495, 499. In platting these townsites, streets were laid out to the boundary line on each side of the land constituting the company's right of way. November 8, 1901, the city passed Ordinance No. 74. At *305 that time there were a number of unauthorized crossings in use by the public; but the city had not acquired by purchase or condemnation the right of way for the extension of any street across the railroad. The ordinance was accepted by the company and is in form a contract. It provided for the immediate extension of certain platted streets across the right of way, tracks and station grounds of the company in lieu of the unauthorized crossings then in use. Some of the new crossings were to be constructed by the company at its own expense, and the cost of others was to be borne equally by the parties. Terms and conditions for the construction of other crossings were set forth in the ordinance. It was declared that thereafter the city would open no other street across the right of way and tracks of the company except upon payment of amounts specified in the ordinance as stipulated damages for a right of way across the railroad, any determination in condemnation proceedings instituted by the city, whether more or less than the agreed sum, to the contrary notwithstanding. It was stated that nothing contained in the ordinance should constitute a waiver of the company's right to contest the opening of additional streets. But there is no provision purporting to limit power or authority of the city to establish or regulate street crossings over, under or upon the tracks and other property of the company. And it was specifically agreed that, if at any time the city should desire to extend and open Comanche Avenue across the company's right of way and station grounds, the crossing should be constructed under the tracks located upon the fill and at grade across tracks laid at the street level, according to plans and specifications approved by the company and at the sole cost and expense of the city. The company, for this and other considerations mentioned in the ordinance, agreed to waive all claims for damages caused by the opening and establishing of this crossing.
*306 Pursuant to the Act of Congress of March 29, 1906, c. 1351, 34 Stat. 91, the city of McAlester was created by the consolidation of the city of South McAlester and the town of McAlester. In performance of the agreements contained in the ordinance, the city of McAlester in 1909, and again in 1912, assumed and paid portions of the cost of construction of some of the crossings covered by the ordinance. And ever since the consolidation it has been recognized and treated as the successor of the city of South McAlester and as a party to the contract. The present city is bound to the same extent as was its predecessor that passed the ordinance.
The court held that the state laws gave the commission full jurisdiction over all highways where they cross railways; that the commission had authority to order the crossing in question and to assess the cost of it against the city and the railway company, but not more than 50 per cent. against the city; that the company was the owner in fee of its right of way lands; that they could not be appropriated or damaged for public use without just compensation, and that the commission could not enforce obedience to its order to construct the grade crossing until the question of damage to the fee had been determined either by amicable settlement or by condemnation proceedings.
The order, as interpreted and affirmed, directly contravenes the provisions of the ordinance in respect of the Comanche Avenue crossing. It sets at naught the undertaking of the city to bear the cost of construction and the agreement of the company to give the city the right of way for the street crossing and to waive all claims for damages. The effect is to require the company forthwith to prepare the plan and estimate, and to direct the company  -  upon the determination of its just compensation and the consummation of arrangements by the city to pay the portion of the cost, if any, that may be imposed upon *307 it  -  to proceed to construct the underpass and to have it open for traffic within the time specified. If a contract exists between the parties in respect of this crossing, it is manifest that it would be impaired by the enforcement of the commission's order.
But defendants in error contend that the ordinance is void because it attempts to surrender police power; and therefore that there is no such contract.
It is elementary that for the safety and convenience of the public, the State, either directly or through its municipalities, may reasonably regulate the construction and use of highways where they cross railroads. The legitimate exertion of police power to that end does not violate the constitutional rights of railroad companies. They may be required at their own expense to construct bridges or viaducts whenever the elimination of grade crossings reasonably may be required, whether constructed before or after the building of the railroads. Northern Pacific Railway v. Duluth, 208 U.S. 583, 597; Chi., Mil. & St. P. Ry. v. Minneapolis, 232 U.S. 430, 438; Mo. Pac. Ry. v. Omaha, 235 U.S. 121, 127; Erie R.R. Co. v. Public Utilities Comm'rs, 254 U.S. 394, 409, 412. And such costs are not included in the just compensation which the railroad companies are entitled to receive. Cincinnati, I. & W. Ry. v. Connersville, 218 U.S. 336, 343; Chi., Mil. & St. P. Ry. v. Minneapolis, supra, 440. If the enforcement of its provisions operates to hamper the State's power reasonably to regulate the construction and use of the Comanche Avenue crossing, then undoubtedly the ordinance is void. Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 76; Atlantic Coast Line v. Goldsboro, 232 U.S. 548, 558; Denver & R.G.R.R. Co. v. Denver, 250 U.S. 241, 244.
The precise question is whether the agreement of the city to bear the cost of construction is inconsistent with the proper exertion of the police power.
*308 When the ordinance was passed, it was the purpose of the parties to get rid of unauthorized crossings then in use and to arrange for the extension of platted streets across the tracks and station grounds. It was necessary for the city to obtain rights of way for that purpose; and it was empowered to acquire them by contract, purchase or condemnation. §§ 11, 14, c. 517, 30 Stat. 498, 499; Mansfield's Digest of the Statutes of Arkansas (1884), §§ 749, 760, 907-912. It could not take them without making just compensation to the owner. The company owned its right of way lands and station grounds in fee. Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U.S. 114. It was entitled to compensation for any of its property that might be taken or damaged by the construction and use of the crossings. Chicago, Burlington, &c., R.R. Co. v. Chicago, 166 U.S. 226, 251; Cincinnati, I. & W. Ry. v. Connersville, supra.
The ordinance did not purport to limit the number of crossings that might be opened. Retention by the company of the right to resort to litigation to determine whether the opening of additional streets across the railroad is reasonably necessary does not at all impinge upon police power. Quite independently of the ordinance, the opening and regulation of such crossings is subject to judicial scrutiny, and action that is arbitrary or capricious will be held invalid. Denver & R.G.R.R. Co. v. Denver, supra, 244. Indeed, the reservation contemplates the exertion of the police power and plainly implies that the parties did not intend to restrict the authority of the city to open crossings.
The agreement of the city to pay the amounts stipulated for the opening of certain crossings does not involve or contemplate any surrender of the power of eminent domain. It was authorized to contract, purchase or condemn as it saw fit. The opinion of the state court rightly approves amicable settlement of the compensation *309 to be given the owner. The parties were not bound to resort to litigation. It was competent for them in advance to settle the form and amount of compensation. The company's agreement to grant a right of way for the crossing was a valid consideration for the city's undertaking to bear the cost of construction.
This case is not like Northern Pacific Railroad v. Duluth, supra, cited by defendants in error. There the city had the right of way for the street, and a grade crossing existed for many years. The elimination of that crossing became necessary. The company refused to comply with the city's demands in that respect. Then a contract was made. The city agreed to build a bridge to carry the street over the railroad tracks and the company agreed to contribute $50,000 to its cost. The city undertook to maintain the bridge over the tracks for 15 years and to maintain the approaches perpetually. The city built the bridge at a cost of $23,000 in addition to the amount paid by the company. Years later, when repairs were needed, the company refused to make them. This court following the decision of the Minnesota supreme court (98 Minn. 429) held that the contract was without consideration, against public policy and void. The Northern Pacific Company gave up nothing. The city already had the right of way. The company might have been required to build the bridge. The contract relieved it of a part of the cost, and attempted for all time to suspend the proper exertion of the police power in respect of maintenance. The ordinance now before us is very different from the situation and contract considered in that case.
There is nothing in the ordinance that involves any attempt to interfere with or hinder the proper exertion of police power. Evidently it was the intention of the parties to make a permanent settlement in respect of the crossings covered by the ordinance. The city was empowered *310 to open the Comanche Avenue crossing at any time without condemnation or other proceedings. Neither party could terminate the contract without the consent of the other. Western Union Telegraph Co. v. Pennsylvania Co., 129 Fed. 849, 862. The city's agreement to bear the cost of construction of the Comanche Avenue crossing does not infringe the police power. The enforcement of the commission's order would deprive plaintiff in error of its property without due process of law and would impair the obligation of the contract in violation of the Constitution of the United States.
Judgment reversed.