THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW Gift of uet»uu-ivioss Co. jK± ., > x . ■ \ * * - \ LIABILITY OF RAILROADS TO INTERSTATE EMPLOYEES THE LIABILITY OF RAILROADS TO INTERSTATE EMPLOYEES A STUDY OF CERTAIN ASPECTS OF FEDERAL REGULATION OF THE REMEDY FOR DEATH OR INJURY TO EMPLOYEES IN THE SER- VICE OF INTERSTATE RAILROADS BY PHILIP J. DOHERTY OF THE BOSTON BAR BOSTON LITTLE, BROWN, AND COMPANY 1911 Copyright, 1911, By Little, Brown, and Company. All rights reserved Vt$o4L. 1911 ^rfntets 8. J. 1'arkhill . Jurisdiction Concurrent in State and Federal Courts 100 CONTENTS 7 PAGE Sec. 24. Survival of Action 100 Sec. 25. Construction of Section I of the Act of 1908 . . 101 CHAPTER VII STATUTES FOR SAFETY OF EMPLOYEES AND EFFECT OF THEIR VIOLATION Sec. 26. Effect of the Violation of "Any Statute" ... Ill Sec. 27. The Safety Appliance Acts 112 Sec. 28. The Hours of Service Law 115 Sec. 29. The Ash Pan Law 117 Sec. 30. The Locomotive Boiler Inspection Law .... 118 Sec. 31. State Statutes 118 CHAPTER VIII DAMAGES AND SUIT BY POOR PERSON Sec. 32. Damages for Personal Injuries 126 Sec. 33. Damages for Death Prior to 1910 126 Sec. 34. Amendatory Act of 1910 127 Sec. 35. Annuity Tables 128 Sec. 36. Suit by Poor Person 130 PART II THE CONSTITUTIONALITY OF EMPLOYERS' LIABILITY ACT OF 1908 CHAPTER IX CONGRESS MAY REGULATE THE RELATION BETWEEN MASTER AND SERVANT ENGAGED IN INTERSTATE COMMERCE Sec. 37. Constitutionality of the Act: In General . . . 132 Sec. 38. Review of Authorities in which Power of Regu- lation is Implied 133 8 CONTENTS PAGE Sec. 39. It is a Regulation of Terms and Conditions under which Interstate Commerce is Moved .... 140 Sec. 40. It Furthers a Free Flow of Commerce by Pro- moting Industrial Peace 142 Sec. 41. Employees are Instrumentalities of Interstate Commerce 144 Sec. 42. Relations between Company and Employee are not Local 146 Sec. 43. Human Agency is most Important Factor in Movement of Commerce 147 CHAPTER X THE EMPLOYERS' LIABILITY ACT DOES NOT UNDULY ABRIDGE THE FREEDOM OF CONTRACT Sec. 44. The Contention of the Railroad Counsel ... 157 Sec. 45. No Limitation upon Power of Congress to Restrict the Exercise of the Right of Contract 158 Sec. 46. Theoretical Freedom of Contract is sometimes against Public Policy 160 Sec. 47. Liberty of Contract is merely a Common-Law Right 166 Sec. 48. This Act Frees Employee from the Burden of an Onerous Legal Fiction 175 Sec. 49. This Doctrine has not Impaired Legislation For- bidding Contracts to Avoid the Consequences of Negligence in Handling Freight 184 Sec. 50. This Doctrine cannot Impair an Express Legis- lative Power 185 Sec. 51. This Doctrine Imports a Dangerously Loose Construction of the Constitution 199 CHAPTER XI THE ACT DOES NOT CREATE A DISCRIMINATORY CLASSIFICATION Sec. 52. The Contention of Railroad Counsel 202 Sbo. 53. Doctrine of Common Employment Involves same Classification 203 CONTENTS 9 PAGH Sec. 54. Equal Protection of the Law Clause does not Restrain Normal Exercise of Governmental Power 208 Sec. 55. Legislation Applicable only to Employees of Railroad Companies is not Arbitrary .... 213 Sec. 56. The Inclusion of all Railroad Employees is a Reasonable Classification 220 CHAPTER XII CONGRESS MAY PROVIDE A REMEDY FOR INJURIES CAUSED BY INTRASTATE SERVANTS Sec 57. The Injury from a Cause within the Control of the Interstate Employer Constitutes the Interference with Interstate Commerce . . . t 225 Sec. 58. The Impossibility of Segregating Intrastate from Interstate Employees 228 CHAPTER XIII A REVIEW OF THE HOXIE CASE Sec. 59. Relation of this Act to Sovereignty of States . . 230 Sec. 60. No Action under Two Thousand Dollars . . . 234 Sec. 61. Action by Personal Representative and Dis- tribution of Fund 238 Sec. 62. Railroad held to Liability of Insurer 243 Sec. 63. Jurisdiction of State Courts 245 Sec. 64. Justice and Policy of Fellow-Servant Rule . . . 273 10 CONTENTS PART III THE SAFETY APPLIANCE ACTS CHAPTER XIV ABSOLTJTE MANDATORY OBLIGATION TO COMPLY WITH SAFETY APPLIANCE ACTS PAGE Sec 65. Liability of Carriers under Act is Absolute . . 276 Sec 66. Duty of Defendant Railroad the Same in Per- sonal Injury Suits as in Actions for Statutory Penalty 289 CHAPTER XV DEFINITION OF A "USE" OF A DEFECTIVE CAR Sec 67. What is a "Use" of a Defective Car within the Meaning of the Safety Appliance Acts? . . 296 Sec 68. Defects in Violation of Safety Appliance Acts . 312 Appendix 317 Index 349 TABLE OF CASES A Ablemanv. Booth, 21 How. 506 . 254 Adair v. United States, 208 U. S. 161, 177, 178; 28 Sup. Ct. Rep. 277 136, 138, 186 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228, 229, 231; 20 Sup. Ct. Rep. 96 . . .184, 185, 187, 196 Allen v. Tuscarora Val. R. Co., 229 Pa. 97 67 Allgeyer v. Louisiana, 165 U. S. 578; 17 Sup. Ct. Rep. 427 162 Armitage v. Lancashire & Yorkshire Ry. Co., 4 Minton- Senhouse Workmen's Compensation Cases, 5 96 Armour Packing Co. v. United States, 209 U. S. 56; 28 Sup. Ct. Rep. 428 78, 187 Asher v. Texas, 128 U. S. 129; 9 Sup. Ct. Rep. 1 .... 141 Atchison, T. & S. F. Ry. Co. v. United States, 172 Fed. Rep. 1021 283 Atkin v. Kansas, 191 U. S. 207; 24 Sup. Ct. Rep. 124 . . 196 Atlantic Coast Line Ry. Co. v. Riverside Mills, 219 U. S. 186; 31 Sup. Ct. Rep. 164, 168 137, 196 Atlantic Coast Line Ry. Co. v. United States, 168 Fed. Rep. 175 279, 283, 289 Augusta S. R. Co. v. Wrightsville and T. R. Co., 74 Fed. Rep. 522 77 B Baddeley v. Granville, 19 Q. B. Div. 423 165 Ballard v. Mississippi Cotton Oil Co., 81 Miss. 532; 34 So. Rep. 533 214 Baltimore and Ohio R. Co. v. Baugh, 149 U. S. 368, 384; 13 Sup. Ct. Rep. 914 147, 224, 227 Baltimore & Ohio R. Co. v. Interstate Commerce Commis- sion, 31 Sup. Ct. Rep. 621 117, 138 Baltimore & Ohio S. W. R. Co. v. Voight, 176 U.S. 498; 20 Sup. Ct. Rep. 385 184 12 TABLE OF CASES Baltimore & P. R. Co. v. Mackey, 157 U. S. 72 127 Bank of Arapahoe v. David Bradley Co., 72 Fed. Rep. 867 236 Barbier v. Connolly, 113 U. S. 27; 5 Sup. Ct. Rep. 357 . . 189 Barque Chusan, 2 Story, 455, 464, 465 134 Bedford Quarries Co. v. Welch, 100 Fed. Rep. 513 ... . 236 Belt Ry. Co. of Chicago v. United States, 168 Fed. Rep. 542 74, 75, 80, 292 Berry Coal & Coke Co. v. Chicago, P. & St. L. Ry. Co., 92 S. W. Rep. 714 78 Bertholf v. O'Reilly, 74 N. Y. 509, 524 172 Black v. Charleston & W. C. Ry. Co., 69 S. E. Rep. 230 . . 117 Bletz v. Columbia Nat'l Bank, 87 Pa. St. 92 265 Boldt v. New York C. R. Co., 18 N. Y. 432 94 Booth v. Illinois, 184 U. S. 425; 22 Sup. Ct. Rep. 425 . . 197 Boston & Maine R. Co. v. Hurd, 108 Fed. Rep. 116 .. . 67 Bowen v. Illinois C. R. Co., 136 Fed. Rep. 306 97 Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465; 8 Sup. Ct. Rep. 689, 1062 151 Boyce v. Railway, 63 Iowa, 70; 18 N. W. Rep. 673 ... 266 Bradbury v. Chicago, R. I. & P. Ry. Co. (Iowa), 128 N. W. Rep. 1 132, 264, 265 Bradford Construction Co. v. Heflin, 88 Miss. 314; 42 So. Rep. 174 214 Briggs v. Chicago & N. W. Ry. Co., 125 Fed. Rep. 745 ... 276 Brinckerhoff v. Bostwick, 88 N. Y. 60 265 Brinkmeier v. Missouri Pacific Ry. Co., 81 Kan. 101; 105 Pac. Rep. 221 67, 276, 280 Brown v. Houston, 114 U. S. 622; 5 Sup. Ct. Rep. 1091 . 151 Brown v. Walker, 161 U. S. 591, 606; 16 Sup. Ct. Rep. 644 261 Burke v. Norwich & W. R. Company, 34 Conn. 474, 479 273 Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. Rep. 1, 17 72 C Cain, Admx., v. Southern Ry. Co., U. S. Circuit Court, Knoxville, Tennessee 1911 126, 128 Campbell v. Chicago, M. & St. P. Ry. Co., 53 N. W. Rep. 323 77 Campbell v. Spokane & Inland Empire R. Co., East Dist. of Washington, not yet reported 101 TABLE OF CASES 13 Carson v. Southern Ry. Co., 46 S. E. Rep. 525 276 Cherokee Tobacco, The, 11 Wall. 616 263 Chesapeake & Ohio Ry. Co. v. American Exchange Bank, 92 Va. 495; 23 S. E. Rep. 935 263, 264 Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155 196 Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549; 31 Sup. Ct. Rep. 259 103, 139, 195, 198 Chicago, B. & Q. R. Co. v. United States, 31 Sup. Ct. Rep. 612 139, 282, 285 Chicago Cheese Co. v. Fogg, 53 Fed. Rep. 72 236 Chicago Junction Ry. Co. v. King, 169 Fed. Rep. 372, 377 87, 90, 276, 283 Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209; 15 Sup. Ct. Rep. 585 138, 216 Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418; 10 Sup. Ct. Rep. 462, 702 76 Chicago, M. & St. P. Ry. Co. v. Ross, 112 U. S. 377; 5 Sup. Ct. Rep. 184 205 Chicago, M. & St. P. Ry. Co. v. Voelker, 129 Fed. Rep. 522 75, 276, 294 Chicago, M. & St. P. Co. v. United States, 165 Fed. Rep. 423 80, 283, 291 Chicago, R. I. & P. Ry. Co. v. Brown, 185. Fed. Rep. 80 . . 278 Chicago, R. I. & P. Ry. Co. v. Stahley, 62 Fed. Rep. 363 . . 142 Chicago, R. I. & P. Ry. Co. v. Zernecke, 183 U. S. 582; 22 Sup. Rep. Ct. 229 , . . . . 245 Chicago & N. W. Ry. Co. v. Osborne, 52 Fed. Rep. 912 75, 80 Chicago & N. W. Ry. Co. v. United States, 168 Fed. Rep. 236 291, 292 Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184; 16 Sup. Ct. Rep. 700 ... . 80 Cincinnati Packet Co. v. Bay, 200 U. S. 179; 26 Sup. Ct. Rep. 208 76 Claflin v. Housman, 93 U. S. 30, 130, 136 251, 265 Clancy v. Barker, 131 Fed. Rep. 161 97 Cleveland, C. C. & St. L. Ry. Co. v. Baker, 91 Fed. Rep. 224 276 Coe v. Erroll, 116 U. S. 517; 6 Sup. Ct. Rep. 475 ... . 80 Cofrode v. Gardner, 79 Mich. 332; 44 N. W. Rep. 623 . 267 Colasurdo v. Central R. R. of N. J., 180 Fed. Rep. 832 . 86, 132 14 TABLE OF CASES Coleman State ex rel. v. Kelly, 70 L. R. A. 450 276 Coley v. North Carolina R. Co., 128 N. C. 534; 39 S. E. Rep. 43 104, 276 Commonwealth v. Lehigh Valley R. Co., 17 Atl. Rep. 179 . 76 Cooley v. Port Wardens, 12 How. 299 147 Copp v. Louisville & N. R. Co., 43 La. Ann. 511; 9 So. Rep. 441 265 Cound v. Atchison, T. & S. F. Ry. Co., 173 Fed. Rep. 527 . . 65, 66 Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204; 14 Sup. Ct. Rep. 1087 77 Crawford v. New York C. & H. R. R. Co., 10 Am. Neg. Rep. 166 80, 276, 307 Crowley v. Christensen, 137 U. S. 86; 11 Sup. Ct. Rep. 13 188, 196 Crutcher v. Kentucky, 141 U. S. 47; 11 Sup. Ct. Rep. 851 . 151 Cutting v. Fla. Ry. & Nav. Co. et al., 46 Fed. Rep. 641 ... 78 D Daniel Ball, The, 10 Wall. 557 79, 292 Davis v. Southern Ry. Co., 60 S. E. Rep. 722 76 Dawson v. Chicago, R. I. & P. Ry. Co., 114 Fed. Rep. 870 . 276, 313 Debs, Petitioner, In re, 158 U. S. 564; 15 Sup. Ct. Rep. 900 . 31, 70, 143, 151, 153, 226 Defiance Water Company v. Defiance, 191 U. S. 184; 24 Sup. Ct. Rep. 63 259 Delk v. St. Louis & S. F. R. Co., 31 Sup. Ct. Rep. 617 285, 288 Denver & R. G. R. Co. v. Arrighi, 129 Fed. Rep. 347 276, 288 Denver & R. G. R. Co. v. Gannon, 90 Pac. Rep. 853 .. . 276 Devine v. Illinois Central R. Co., 156 111. App. 369 .... -276 Dinsmore v. Racine M. R. Co., 12 Wis. 649 292 Donegan v. Baltimore & N. Y. Ry. Co., 165 Fed. Rep. 869 276, 283 Dred Scott Case, 19 How. 393, 614 150 Dunbar v . Charleston & N. C. Ry. Co., 186 Fed. Rep. 175 . 64 Duncan v. Missouri, 152 U. S. 377; 14 Sup. Ct. Rep. 570 . 218 TABLE OF CASES 15 E Elmore v. Seaboard Air Line Ry. Co., 41 S. E. Rep. 786 . . 276 El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87; 30 Sup. Ct. Rep. 217 103, 105 Emerson v. Hall, 13 Peters, 409 242 Employers' Liability Cases, 207 U. S. 463, 495, 522; 28 Sup. Ct. Rep. 141, 159 34, 41, 135, 136, 137, 234 Erie R. Co. v. Russell, 183 Fed. Rep. 722 276, 296 Evey v. Railway, 81 Fed. Rep. 294 267 Exposition Cotton Mills v. Western & Atlantic R. Co., 83 Ga. 441 67 Ewald v. Chicago & N. W. R. Co., 70 Wis. 420 93 Farwell v. Boston & Worcester Railroad Corporation, 4 Mete. 49 45, 46, 203, 274 Felt et ux. v. Denver & R. G. R. Co., 110 Pac. Rep. 215 . . . 278 Fletcher v. Baltimore & Potomac R. Co., 168 U. S. 135; 18 Sup. Ct. Rep. 35 94 Ft. Worth & D. C. Ry. Co. v. Whitehead, 6 Texas Civil Appeals, 595 80 Foster v. Neilson, 2 Pet. 253 263 Frisbie v. United States, 157 U. S. 160; 15 Sup. Ct. Rep. 586 . 189, 192 Fulgham v. Midland Valley R. Co., 167 Fed. Rep. 660 64, 132 G Galveston, H. & S. A. Ry. Co. v. Armstrong, 43 S. W. Rep. 614 78 Gibbons v. Ogden, 9 Wheat. 1, 189, 193, 198, 207, 208, 210, 211, 230 ... . 65, 71, 124, 134, 144, 152, 170, 191, 192, 234 Gilbert v. Burlington, C. R. & N. Ry. Co., 128 Fed. Rep. 529 276 Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540; 23 Sup. Ct. Rep. 754 236 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 203; 5 Sup. Ct. Rep. 826 145 16 TABLE OF CASES Goldenstein v. Baltimore & Ohio R. Co., 37 Washington Law Reporter, 2 164 Gordon v. Toledo, St. L. & W. R. Co., 177 Fed. Rep. 152 277 Grand v. Ry. Co., 83 Mich. 564 288 Great Western R. Co. v. Miller, 19 Mich. 305 267 Greene, In re, 52 Fed. Rep. 104 74 Greenlee v. Southern Ry. Co., 30 S. E. Rep. 115 276 Gregory v. Hill, 1869, 8th Sc. Sess. Cas., 3d Series, p. 282 . . 179 Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150; 17 Sup. Ct. Rep. 255 218 Gulf, C. & S. F. R. Co. v. Fort Grain Co., 73 S. W. Rep. 845 74 Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98; 15 Sup. Ct. Rep. 802 ... 241 Gulf, C. & S. F. R. Co. v. Miami S. S. Co., 86 Fed. Rep. 407 80 Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403; 27 Sup. Ct. Rep. 360 78, 292 Gundling v. Chicago, 177 U. S. 183; 20 Sup. Ct. Rep. 633 197 H Hall v. Chicago, R. I. & P. Ry. Co., 149 Fed. Rep. 564 ... "99 Hallam v. Ry. Co., 80 Wis. 299 287, 288 Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617; 23 Sup. Ct. Rep. 214 76 Harden v. No. Carolina R. Co., 40 S. E. Rep. 184 277 Hayes v. Missouri, 120 U. S..68; 7 Sup. Ct. Rep. 350 . . 217 Head Money Cases, The, 112 U. S. 580; 5 Sup. Ct. Rep. 247 263 Herrickv. Railway, 31 Minn. 1; 16 N. W. Rep. 413 .... 266 Higgins v. Central New England & W. R. Co., 155 Mass. 176, 180 258 Hohenleitner v. Southern Pacific Co., 177 Fed. Rep. 796 . 277 Holden v. Hardy, 169 U. S. 366; 18 Sup. Ct. Rep. 383 . . 161, 189, 193 Holden v. Utah & M. Mach. Co., 82 Fed. Rep. 209 ... 236 Hopkins v. United States, 171 U. S. 578; 19 Sup. Ct. Rep. 40 151 Hoist v. Merkley, 59 Fed. Rep. 502 236 Houston D. Nav. Co. v. Insurance Co. of N. A., 32 S. W. Rep. 889 78 TABLE OF CASES 17 Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352 . . 133, 230, 265, 352 Hudson v. Missouri K. & T. R. Co., 16 Kan. 470 ... . 97 Hutchinson v. York, N. & B. R. Co., 5 Exch. 343 ... . 203 International & G. N. Ry. Co. v. Elder, 99 S. W. Rep. 856 . 277 International Textbook Company v. Pigg, 217 U. S. 91; 30 Sup. Ct. Rep. 481 70 Interstate Commerce Commission v. Bellaire, Z. & C. Ry. Co., 77 Fed. Rep. 942 77, 78, 80 Interstate Commerce Commission v. Chicago, K. & S. R. Co., 81 Fed. Rep. 783 78 Interstate Commerce Commission v. Cincinnati N. O. & T. P. Ry., 162 U. S. 184; 16 Sup. Ct. Rep. 700 75 Interstate Commerce Commission v. Detroit, G. H. & M. Ry. Co., 167 U. S. 633; 17 Sup. Ct. Rep. 986 80 Interstate Commerce Commission v. Seaboard A. L. Ry. Co., 82 Fed. Rep. 563 78 Interstate Stock Yards Co. v. Indianapolis U. Ry. Co., 99 Fed. Rep. 472 77 Jackson v. Chicago, R. I. & P. Ry. Co., 178 Fed. Rep. 432, 435 .... 97 Jacobson v. Massachusetts, 197 U. S. 11; 25 Sup. Ct. Rep. 358 189,194 Joel v. Morrison, 6 C. & P. 501 98 Johnson v. Great Northern Ry. Co., 178 Fed. Rep. 643 . 87, 89, 113, 132, 277, 283 Johnson v. Mammoth Vein Coal Co., 114 S. W. Rep. 722 . 277 Johnson v. Southern Pacific Co., 196 U. S. 1, 17; 25 Sup. Ct. Rep. 158 40, 80, 119, 138, 277, 290, 294, 297, 298, 300, 307, 309, 310 K Kansas City M. & B. R. Co. v. Flippo, 35 Southern Rep. 457 277 Kansas City So. Ry. v. R. R. Com. of Arkansas, 106 Fed. Rep. 359 76 18 TABLE OF CASES Kansas City So. Ry. Co. v. Quigley, 181 Fed. Rep. 190 .. . 117 Kelly v. Great Northern Ry. Co., 152 Fed. Rep. 211, 227 41, 42, 277 Kennedy v. Erie Railroad Co., Northern Dist. Ohio, Nov. 13, 1909 99 Kentucky Railroad Tax Cases, 115 U. S. 321, 337; 6 Sup. Ct. Rep. 57 217 Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288; 52 Atl. Rep. 531 107 Knoxville Iron Co. v. Harbison, 183 U. S. 13; 22 Sup. Ct. Rep. 1 189, 194 Koehler, Ex parte, 30 Fed. Rep. 867 77 Krause v. Morgan, 53 Ohio St. 26 287 L Lake Superior & M. R. Co. v. United States, 93 U. S. 442 . . 293 Lancer v. Anchor Line, 155 Fed. Rep. 433 151 Larabee v. New York, N. H. & H. R. Co., 66 N. E. Rep. 1032 277 Legal Tender Cases, 12 Wall. 457, 550, 551 159, 160 Lehigh Valley R. Co. v. Commonwealth, 18 Atl. Rep. 125 76 Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192; 12 Sup. Ct. Rep. 806 76 Lewis v. Pennsylvania R. Co., 69 Atl. Rep. 821 277 Little Miami R. Co. v. Stevens, 20 Ohio, 435 274 Live Stock Association v. Crescent City Co., 1 Abbott's U. S. Rep. 399 190 Lloyd v. North Carolina R. Co., 151 N. C. 536; 66 S. E. Rep. 604 . 116 Lochner v. New York, 198 U. S. 45; 25 Sup. Ct. Rep. 539 . 186 Lottery Cases, 188 U. S. 321, 356; 23 Sup. Ct. Rep. 321 . . 150 Louisville v c. Though its line is wholly within a single \ State and though no passenger tickets for passage \ outside the State are sold, and though no bills of \ lading are issued for the carriage of freight beyond the lines of the State, if it generally transports in continuous transit merchandise from a point of origin outside the State to a point within the State, or from a point within the State in con- / tinuous journey to a point without the State; ^* d. If, though its line is wholly within the J 70 LIABILITY OF RAILROADS limits of a single State, it carries, under contract with an express company, packages in transit between States; e. If, though wholly within the limits of a single State, it transports over its line cars loaded with interstate traffic; /. If its line, though wholly within a single State, is a link in an interstate highway; g. Quaere: Is a line of railroad, otherwise local, made interstate by the carriage of the United States mail? In re Debs, 158 U. S. 564. § 12. International Text Book Company Case. In the case of International Textbook Company v. Pigg, 217 U. S. 91, 30 Sup. Ct. Rep. 481, it was held that a company engaged in the business of imparting instruction "by means of correspond- ence through the mails between the company at its office . . . and the applicant at his residence in another State," was engaged in interstate commerce. In the course of the opinion Mr. Justice Harlan said: "It is true that the business in which the International Textbook Company is engaged is of a somewhat exceptional character, but, in our judgment, it was, in its essential characteristics, commerce among the States within the meaning of the Constitution of the United States. It TO INTERSTATE EMPLOYEES 71 involved, as already suggested, regular and prac- tically continuous intercourse between the Text- book Company located in Pennsylvania, and its scholars and agents in Kansas and other States. That intercourse was conducted by means of cor- respondence through the mails with such agents and scholars. While this mode of imparting and acquiring an education may not be such as is commonly adopted in this country, it is a lawful mode to accomplish the valuable purpose the parties have in view. More than that : this mode — looking at the contracts between the Textbook Company and its scholars — involved the trans- portation from the State where the school is located to the State in which the scholar resides, of books, apparatus and papers, useful or necessary in the particular course of study the scholar is pursuing and in respect of which he is entitled, from time to time, by virtue of his contract, to information and direction. Intercourse of that kind, between parties in different States — particularly when it is in execution of a valid contract between them — is as much intercourse, in the constitutional sense, as intercourse by means of the telegraph — 'a new species of commerce,' to use the words of this court in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 9. In the great case of Gibbons v. Ogden, 9 Wheat. 1, 189, this court, speaking by Chief Justice Marshall, said, 72 LIABILITY OF RAILROADS 'Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.' Referring to the constitutional power of Congress to regulate commerce among the States and with foreign countries, this court said in the Pensacola Case, just cited, that 'it is not only the right but the duty of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.' This principle has never been modified by any subsequent decision of this court. " The same thought was expressed in Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 356, 7 Sup. Ct. Rep. 1126, where the Court said: 'Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence.' It was said in the Circuit Court of Appeals for the Eighth Circuit, speaking by Judge Sanborn, in Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. Rep. 1, 17, that 'all interstate commerce is not sales of goods. Importation into one State from another is the indispensable element, the test, of interstate commerce; and every negotia- tion, contract, trade, and dealing between citizens of different States, which contemplates and causes such importation, whether it be of goods, persons, or information, is a transaction of interstate com- TO INTERSTATE EMPLOYEES 73 merce.' If intercourse between persons in differ- ent States by means of telegraphic messages con- veying intelligence or information is commerce among the States, which no State may directly burden or unnecessarily encumber, we cannot doubt that intercourse or communication between persons in different States, by means of corre- spondence through the mails, is commerce among the States within the meaning of the Constitu- tion, where, as here, such intercourse and com- munication really relates to matters of regular, continuous business and to the making of con- tracts and the transportation of books, papers, etc., appertaining to such business. In our further consideration of this case we shall therefore as- sume that the business of the Textbook Com- pany, by means of correspondence through the mails and otherwise between Kansas and Pennsyl- vania, was interstate in its nature." If intercourse by means of the mail is interstate commerce, then it would seem to follow that the carriage of the mails is interstate commerce. § 13. Authorities upon Decided Issues. The liability of a railroad company, the lines of which are devoted to the service of interstate transportation is not affected by the fact that the traffic consists of products or materials owned by the carrying company. United States v. Chicago, 74 LIABILITY OF RAILROADS M. & St. P. Ry. Co., 149 Fed. Rep. 486; United States v. Southern Ry. Co., Kent's Index-Digest of Decisions under the Federal Safety Appliance Acts, 269. The interstate character of a shipment is not changed by interrupting the course of transit at the State line. Gulf, C. & S. F. R. Co. v. Fort Grain Co., 73 S. W. Rep. 845; United States v. Colorado & N. W. R. Co., 157 Fed. Rep. 321 (now pending decision by the Supreme Court); United States v. Chicago, M. & St. P. Ry. Co., 149 Fed. Rep. 486. The interstate character of a shipment attaches the moment it is put on a car and begins to move from a point in one State destined to a point in another State. And that interstate character continues to inhere in the shipment until its final delivery is effected. It may, therefore, be said that a railroad company is engaged in interstate commerce during the entire period intervening between the loading of a shipment destined to be interstate and the surrender by the consignee of his bill of lading. McNeil v. Southern Ry. Co., 202 U. S. 543, 26 Sup. Ct. Rep. 722; In re Greene, 52 Fed. Rep. 104; United States v. Hopkins, 82 Fed. Rep. 529; United States v. Boyer, 85 Fed. Rep. 425; United States v. Geddes, 131 Fed. Rep. 452; Belt Ry. Co. of Chicago v. United States, 168 Fed. Rep. 542; United States v. Colorado & N. W. TO INTERSTATE EMPLOYEES 75 Ry. Co., 157 Fed. Rep. 321; United States v. Central of Ga. Ry. Co., 157 Fed. Rep. 893; United States v. Southern Ry. Co., Kent's Index-Digest of Decisions under the Federal Safety Appliance Acts, 269; St. Louis & S. F. Ry. v. Delk, 158 Fed. Rep. 931; Chicago, M. & St. Paul Ry. Co. v. Voelker, 129 Fed. Rep. 522; Pacific Coast Ry. Co. v. United States, 173 Fed. Rep. 448. The mere participation by a railroad in the transportation of traffic destined from a point in one State to a point in another State, from or to a point in a State to or from a point in a Terri- tory of the United States, or between two or more points in a Territory, subjects the carrier to the regulation of the Federal Government. This is true whether the participation consists in a divi- sion under a joint rate of transportation, or if the lines of the carrier in question constitute a link in a through route to such interstate transportation. United States v. Standard Oil Co., 155 Fed. Rep. 305; Interstate Commerce Commission v. Cincin- nati N. 0. & T. P. Ry., 162 U. S. 184, 16 Sup. Ct. Rep. 700; Parsons v. Chicago & N. W. Ry. Co., 167 U. S. 447, 17 Sup. Ct. Rep. 887; Chicago & N. W. Ry. Co. v. Osborne, 52 Fed. Rep. 912; Tozer v. United States, 52 Fed. Rep. 917; Texas & N. 0. R. Co. et al. v. Sabine Tram Co., 121 S. W. Rep. 256; Belt Line Ry. of Chicago v. United States, 168 Fed. Rep. 542; Norfolk & W.R. Co. v. 76 LIABILITY OF RAILROADS Pennsylvania, 136 U. S. 114, 10 Sup. Ct. Rep. 958. An interesting question has arisen in regard to the interstate character of a shipment transported from a point in one State through a contiguous State to another point in the State of origin. The affirmative of this proposition is sustained in the following cases: Sternberger v. Cape Fear and Y. V. R. Co., 7 S. E. Rep. 836; State v. Chicago, St. P., M. and 0. R. Co., 40 Minn. 267; New Orleans Cotton Ex. v. Cincinnati, N. 0. & T. P. R. Co., 2 I. C. C. Rep. 289; Kansas C. S. Ry. v. R. R. Com. of Arkansas, 106 Fed. Rep. 359; United States v. Erie R. Co., 166 Fed. Rep. 352; Shelby Ice & Fuel Co. v. Southern Ry. Co., 60 S. E. Rep. 721; Davis v. Southern Ry. Co., 60 S. E. Rep. 722; St. Louis & S. F. R. Co. v. State, 113 S. W. Rep. 203; Mires v. St. Louis & S. F. Ry. Co., 114 S. W. Rep. 1052; Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, 23 Sup. Ct. Rep. 214. The negative aspect of the proposition is sus- tained by the following cases: Commonwealth v. Lehigh Valley R. Co., 17 Atl. Rep. 179; Lehigh Valley R. Co. v. Commonwealth, 18 Atl. Rep. 125; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. Rep. 462, 702; Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 12 Sup. Ct. Rep. 806; Cincinnati Packet Co. v. Bay, 200 U. S. 179, 26 Sup. Ct. Rep. 208; United States TO INTERSTATE EMPLOYEES 77 v. Lehigh Valley R. Co., 115 Fed. Rep. 373; Camp- bell v. Chicago, M. & St. P. Ry. Co., 53 N. W. Rep. 323; Seawell et al. v. Kansas City, Fort S. & M. R. Co., 24 S. W. Rep. 1002. The amenability of railroads to federal regula- tion arises from their participation in the carriage of interstate traffic and extends to corporations, the lines of which are confined within the limits of a single State, if such carriers accept through traffic to or from a point in another State. As held in Ex parte Koehler, 30 Fed. Rep. 867, the transpor- tation of property from one State to another is interstate commerce, whether the carriers en- gaged in moving it or the vehicles on which it is borne, cross the line of a State or not. This prin- ciple has been enunciated in a considerable number of decisions in the state and federal courts, of which the following are typical: United States v. Colorado & N. W. R. Co., 157 Fed. Rep. 321; United States v. Pacific Coast Ry. Co., 173 Fed. Rep. 448, 453; Texas & N. 0. R. Co. et al. v. Sab- ine Tram Co., 121 S. W. Rep. 256; United States v. Coombs, 37 U. S. 72; Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. Rep. 1087; Augusta S. R. Co. v. Wrightsville and T. R. Co., 74 Fed. Rep. 522; Interstate Stock Yards Co. v. Indianapolis U. Ry. Co., 99 Fed. Rep. 472; United States v. Delaware L. & W. R. Co., 152 Fed. Rep. 269; Interstate Commerce Commission 78 LIABILITY OF RAILROADS v. Bellaire, Z. & C. Ry. Co., 77 Fed. Rep. 942; United States v. Colorado & N. W. R. Co., 157 Fed. Rep. 321; United States v. Illinois Term. R. Co., 168 Fed. Rep. 546; Texas & P. Ry. Co. v. Clark, 23 S. W. Rep. 698; Houston D. Nav. Co. v. Insurance Co. of N. A., 32 S. W. Rep. 889; Texas & P. Ry. Co. v. Avery, 33 S. W. Rep. 704; Galveston, H. & S. A. Ry. Co. v. Armstrong, 43 S. W. Rep. 614; State v. Southern Kansas Ry. Co. of Texas, 49 S. W. Rep. 252; Texas & P. Ry. Co. v. Davis, 54 S. W. Rep. 381 ; Berry Coal & Coke Co. v. Chicago, P. & St. L. Ry. Co., 92 S. W. Rep. 714; Porter v. St. Louis S. W. Ry. Co., 95 S. W. Rep. 453; Missouri, Kansas, & T. Ry. Co. v. New Era Milling Co., 101 Pac. Rep. 1011; Cutting v. Fla. Ry. & Nav. Co. et al, 46 Fed. Rep. 641; Interstate Commerce Commission v. Seaboard A. L. Ry. Co., 82 Fed. Rep. 563; Perkins v. Northern Pacific Ry. Co., 155 Fed. Rep. 445. Contra: See United States v. Geddes, 131 Fed. Rep. 452; Interstate Commerce Commission v. Chicago, K. & S. R. Co., 81 Fed. Rep. 783; Texas & P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. Rep. 666; Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. Rep. 428; Gulf, C. & S. F. R. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. Rep. 360. In the case of Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U. S. 403, the Supreme Court held TO INTERSTATE EMPLOYEES 79 that a railroad company which transported a shipment from the point of its original destination to another point in the same State, even though the shipment had in point of fact originated in another State, was not on that account a " railroad engaged in interstate commerce." But this was clearly a case of reshipment by a new consignor. Any railroad company, irrespective of the limi- tation of its lines within the boundary of a single State, which participates in any degree what- soever in the transportation of interstate commerce is a " railroad engaged in interstate commerce." This is the logical result of the reasoning of the Supreme Court in the case of The Daniel Ball, 10 Wall. 557, in which case the court said: "When- ever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity has commenced." Transportation of freight from a point in one State to a point in another is interstate commerce, and such shipment does not become intrastate commerce when it reaches the state line, but con- tinues interstate commerce until delivered at the final place of destination. Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. Rep. 664. But when the commodity transported has reached the termination of its journey, and has been delivered to the consignee, it ceases to be a subject of interstate commerce, and the subse- 80 LIABILITY OF RAILROADS quent shipment from the point at which it has been delivered to another point in the same State is an intrastate shipment. Coe v. Erroll, 116 U. S. 517, 6 Sup. Ct. Rep. 475; Ft. Worth & D. C. Ry. Co. v. Whitehead, 6 Texas Civil Appeals 595; Cincinnati, N. 0. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. Rep. 700; Chicago & N. W. Ry. Co. v. Osborne, 52 Fed. Rep. 912; Interstate Commerce Commission v. Bellaire Z. & C. Ry., 77 Fed. Rep. 942; Interstate Commerce Commission v. Detroit, G. H. & M. Ry. Co., 167 U. S. 633, 17 Sup. Ct. Rep. 986; Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co., 86 Fed. Rep. 407. A railroad company engaged in a switching movement of interstate cars is a railroad engaged in interstate commerce. Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. Rep. 158; Rosney v. Erie R. Co., 135 Fed. Rep. 311; Wabash R. Co. v. United States, 168 Fed. Rep. 1; Belt Ry. Co. of Chicago v. United States, 168 Fed. Rep. 542; Chicago, M. & St. P. Co. v. United States, 165 Fed. Rep. 423; Union Stock Yards Co. of Omaha v. United States, 169 Fed. Rep. 404; United States v. Pittsburgh, C. C. & St. L. Ry. Co., 143 Fed. Rep. 360; Crawford v. New York C. & II. R. R. Co., 10 Am. Neg. Rep. 166; Mobile, J. & K. C. R. Co. v. Bromberg, 37 Southern Rep. 395; United States v. Northern Pacific Terminal Co., 144 Fed. Rep. 861. TO INTERSTATE EMPLOYEES 81 § 14. Summary from Authorities. From a review of the foregoing it may be said generally that a railroad company is "engaged in interstate commerce" a. if it engages generally in the transporta- tion of passengers or freight or express traffic from one State or Territory into or through some other State or Territory, or from the District of Columbia into or through any State or from any State into the District of Columbia; b. if it operates in one State alone but sells passenger or freight or express transportation over its line to points in another State or States; c. if it handles over its line freight billed through and on its journey to States other than the State from which such traffic is billed and originates; d. if it receives and forwards traffic in continu- ous journey from one State to another; or e. if it passes through a contiguous State en route from one point in a State to another point within the same State. A railroad engaged in any transportation of freight or passengers in any Territory, or in the District of Columbia, is within the scope of the Act. 82 LIABILITY OF RAILROADS § 15. Method of Proof. A railroad, as to any of its local branches, is engaged in interstate commerce if, by filing sched- ules of rates for interstate traffic to and from any of the stations on such local branch, it holds itself out generally as ready to transact interstate busi- ness over such local branch. The freight and passenger tariffs are open to public inspection on each of the interstate railroads of the country, and are also filed with the Interstate Commerce Commission at Washington. Proof of the movement of interstate traffic over the tracks of almost every local subdivision of an interstate railroad may be secured by the service of a subpcena duces tecum upon the official having custody of the records of freight and passenger traffic over such subdivision. Proof of the transaction of general interstate traffic over any particular branch or subdivision of a railroad would seem to bring within the scope of the Act any employee who is injured while engaged in the maintenance or operation of any of the permanent instrumentalities of such branch or subdivision. § 16. Act Applies to Interstate Electric Lines. There can be little doubt that street railways which transport passengers across state lines are TO INTERSTATE EMPLOYEES 83 included within the terms of the Act. This statute differs from the Arbitration Act and the Safety Appliance Act in this, that it makes no express exclusion from its terms of street railways, while in those Acts street railways were expressly ex- cepted. The omission of any such exception in the present Act seems to indicate the congressional intent to include them. The language of the Act seems to include them. In view of the compre- hensive and inclusive definitions of interstate commerce made by the courts, it will be seen that the service and activities of most of the railroads in the United States bring them within the scope of the statute here under consideration. 1 1 The contention that street railways engaged in interstate traffic are within the scope of the Employers' Liability Act seems to find support in the reasoning of the Interstate Commerce Commission in its opinion that such railways were included in the Act to Regulate Commerce. Willson v. Rock Creek R. Co., 7 I. C. C. Rep. 83; West End Improvement Club v. Omaha & C. B. Ry. & B. Co., 17 I. C. C. Rep. 239, with authorities cited. 84 LIABILITY OF RAILROADS CHAPTER V WHAT EMPLOYEES ARE ENGAGED IN INTERSTATE COMMERCE ? § 17. Employees Included in the Act. To bring a case within the application of the Employers' Liability Act of 1908, not only must the railroad have been engaged in interstate traffic, but the employee for whose death or injury redress is sought must, at the time of the acci- dent, have been himself engaged in interstate commerce. A telegrapher may send messages only between points within a single State, so that in one sense he is an intrastate servant, yet many of the despatches he handles relate to interstate or through trains. These latter trains could not move without the telegraphic orders he transmits. So in a larger sense he is engaged in interstate commerce, and the safety of interstate operation may depend upon the proper performance of his duty. The work of a track-walker or track-repairer in like manner seems, at first blush, to be local in character. But no logic can exclude him from the interstate service, for his duty is as essential to TO INTERSTATE EMPLOYEES 85 the safe and expeditious movement of interstate trains as the work of the crew of such trains. And the logic which includes the telegrapher and the track-repairer in the common employment doctrine indubitably results in their inclusion in the interstate service in which the railroad is engaged. That an employee engaged in the work of repairing a track which is used indiscriminately for both interstate and intrastate commerce is en- gaged in interstate commerce has been determined in a case arising under this Act. Zikos v. Oregon L. & N. Co., 179 Fed. Rep. 893. In this case the Court said: "But the track of a railroad company engaged both in interstate and intrastate com- merce is, while essential to the latter, indispen- sable to the former. It is equally important that it be kept in repair. Where the traffic is not in fact interstate, although upon a railroad engaged in commerce between the States, such as trains devoted entirely to local business and wholly within the boundaries of a State, a different case is presented. There it is possible to identify what is and what is not interstate; but where, as in this case, a road is admittedly engaged in both, it becomes impossible to say that particular work done results directly for the benefit of one more than the other. Manifestly it is for the accom- modation of both. To hold, then, that a work- man engaged in repairs upon the track of such a 86 LIABILITY OF RAILROADS carrier is not furthering interstate commerce would be to deny the power to control an indispensable instrument for commercial intercourse between the States — to deny the power of Congress over interstate commerce, — but that the power ex- tends to the control of those instrumentalities through which commerce is carried on, is not an open question. . . . "The particular question is an apt illustration of the intricacies to which our dual system of government often leads; but the intricacy is but an incident, and it can neither defeat nor impair the power of Congress over interstate commerce. "Since the track, in the nature of things, must be maintained for commerce between the States, the work bestowed upon it inures to the benefit of such commerce. It is therefore subject to federal control, even though it may contribute to car- riage wholly within the State. Being inseparable, yet interstate commerce inherently abiding in the thing to be regulated, as to the track, the state jurisdiction must give way, or at least it cannot defeat the superior power of Congress over the subject matter whenever a carrier is using the track for the double purpose." In Colasurdo v. Central R. R. of N. J., 180 Fed. Rep. 832, another case arising under the Em- ployers' Liability Act of 1908, a plaintiff was held to be entitled to the remedy under the Act where TO INTERSTATE EMPLOYEES 87 he was injured while repairing a switch in the defendant's yards at Jersey City. This work of repairing a switch was held to be interstate business, for the reason that the switch was necessarily used in both kinds of commerce. Terminal charges have been held to be within the regulative power of Congress, therefore it may fairly be concluded that yardmen at terminals where local and interstate traffic are commingled and generally handled without discrimination, are engaged in interstate commerce and are within the scope of the Act. This has been expressly decided in Johnson v. Great Northern Ry. Co., 178 Fed. Rep. 643, citing Chicago Junction Ry. Co. v. King, 169 Fed. Rep. 372. By the terms of the Act "any" employee "while" engaged in interstate commerce is in- cluded in the Act. The protection of the Act is thus given only " while" the employee is engaged in interstate commerce. According to the interpretation already given by the courts, general service in the performance of duty relating to interstate commerce is not sufficient. The particular service in which an employee is engaged at the time of the injury must have direct relation to the interstate traffic in which the railroad company is engaged. Thus, an engineer of a train purely local (that is, a train 88 LIABILITY OF RAILROADS which is at the time engaged in the transporta- tion of no interstate freight, passengers or inter- state express matter) is not entitled to a remedy under the provisions of this Act. And this is true if he should be injured by a collision with an interstate train on an interstate highway, because he is not, at the time of the injury, himself en- gaged in interstate commerce, and the terms of the Act limit a recovery to employees who suffer injury " while" engaged in interstate commerce. But what rule may be laid down for the deter- mination of the question, "When is an employee engaged in interstate commerce?" The crew of an interstate train is of course included. A switch- man engaged in duty, as such, for an interstate train, a freight handler while employed in handling interstate or foreign freight and mechanics or car repair men, while engaged in work upon inter- state cars or other interstate instrumentalities, and while passing over the road for the purpose of making repairs upon cars or engines of an interstate train are also included, and emergency or wrecking crews while at work upon any train on an interstate highway may reasonably be included. y^"~ In other words, all who are at the time of injury engaged in duty which has direct relation to the interstate business of the carrier are entitled to the protection of the Act. TO INTERSTATE EMPLOYEES 89 J /The Act may fairly be interpreted to include all mechanics who are engaged at the time of injury upon instrumentalities which are generally and indiscriminately used for all the purposes of an interstate railroad, as, for instance, linemen, track repairers and laborers engaged in the general maintenance of the interstate highway or its signal wires or apparatus, and those whose duties relate to the construction, maintenance, and repair of those instrumentalities which are used in the business conducted by the interstate rail- road without discrimination between the local or interstate character of its traffic. Snead v. Central of Georgia Ry. Co., 151 Fed. Rep. 608. // These general terms include the vast majority of the employees of an interstate railroad who may be affected by peril of accident, for, as rail- roads are practically conducted, there are few employees whose duty is so purely local that they have no relation to interstate traffic. This interpretation of the Act is sustained in the case of Johnson v. Great Northern Ry. Co., 178 Fed. Rep. 643, in the Circuit Court of Appeals for the Eighth Circuit. District Judge William H. Munger, in the majority opinion, said: "It is argued that the Employers' Liability Act can have no application to the case, as plaintiff was not an employee engaged in interstate commerce. A part of his employment was to see the coupling 90 LIABILITY OF RAILROADS of cars and the air hose upon the cars which were placed upon the transfer tracks. Some of those cars, among them the one in question, were en- gaged in interstate commerce. " It is difficult to see why he was not an employee engaged in the movement of interstate commerce to as full an extent as a switchman engaged in the making up of trains in the railroad yards, as in the case oi' Chicago Junction Ry. Co. v. King, 169 Fed. Rep. 372." § 18. Employment must Relate to Movement of Traffic. Not every employee who is engaged in work auxiliary to interstate commerce is included in the Act. The work of the employee, to bring him within the terms of the Act, must be directly con- nected with and in aid of the traffic itself, or in the maintenance of instrumentalities which are gen- erally used in such interstate traffic. In Milner v. Great Northern Ry. Co., 2 Minton- Senhouse Workmen's Compensation Cases, 51, 52, Lord Justice A. L. Smith said that in his opinion a refreshment-room did not come within the meaning of a railway in the Workmen's Compen- sation Act, coupled with the Regulations of Rail- ways Act, 1873. By section 3 of the latter-men- tioned Act " railway" included every station used for the purpose of public traffic. The question TO INTERSTATE EMPLOYEES 91 was whether this refreshment-room was used for the purpose of public traffic, for in his opinion the section did not mean every part of the station, but that part of the station which was used for purposes of public traffic. He thought that a book-stall could not be said to be so used, neither could a hotel. In the case of South Eastern Railway Company v. Railway Commissioners, 6 Q. B. D. 586, the question was whether the Railway Commission had jurisdiction over refreshment-rooms. • The Commissioners had assumed such jurisdiction, but the Court of Appeal held that they were wrong in doing so, on the ground that refreshment-rooms did not come within the meaning of ' facilities for the receiving, forwarding, and delivering traffic upon the railway/ however desirable they might be for the comfort or convenience of passen- gers. ... A refreshment-room at a railway station was not used for the purposes of pub- lic traffic, but was only for the convenience of passengers." In the case of Philadelphia, B. & W. R. Co. v. Tucker, 35 App. D. C. 123, the Court said: "When Tucker was killed he was upon the premises of the defendant in response to its call, to assume the duties he had been engaged by the defendant to assume, and for their mutual interest and advantage. Can it be that 92 LIABILITY OF RAILROADS under such circumstances the relation which the decedent sustained to the defendant was that of a mere stranger? Is it possible that the Act under consideration warrants a distinction so fine as to permit a master to escape liability for negligence resulting in the injury of one hired to perform service because the injury occurs before the service is actually undertaken, notwithstand- ing that at the time of the injury the servant is properly and necessarily upon the premises of the master for the sole purpose of his employment? We think not. Such a rule, in our view, would be as technical and artificial as it would be unjust. We think the better rule, the one founded in reason and supported by authority, is that the relation of master and servant, in so far as the obligation of the master to protect his servant is concerned, commences when the servant, in pursuance of his contract with the master, is rightfully and necessarily upon the premises of the master. The servant in such a situation is not a mere trespasser nor a mere licensee. He is there because of his employment, and we see no reason why the master does not then owe him as much protection as it does the moment he enters upon the actual per- formance of his task. . . . "In Packet Company v. McCue, 17 Wall. 508, a bystander was hired on a wharf to assist in load- ing a boat which was soon to sail. This man had TO INTERSTATE EMPLOYEES 93 been occasionally employed in such work. His services occupied about two and one-half hours, when he was directed to go to 'the office/ which was on the boat, and get his pay. This he did and then attempted to go ashore. While on the gangplank the plank was recklessly pulled from under his feet and he was thrown against the dock, receiving injuries from which he died. Owing to the somewhat peculiar nature of the case it was held that it was for the jury to say, although the facts were undisputed, whether the relationship of master and servant existed until the man got completely ashore. The concluding sentence of the opinion of Mr. Justice Davis was as follows : ' The defense at best was a narrow one and, in our view, more technical than just/ "In Ewald v. The Chicago & N. W. R. Co., 70 Wis. 420, it was held that an engine-wiper employed in the defendant's roundhouse, while going to his work along a pathway crossing the defendant's yard and tracks was an employee of the defendant, hence could not recover for injury resulting from the negligence of a fellow-servant on the freight train causing the injury. The court in its opinion said: 'The peculiar facts of this case which make him such appear to involve pre- cisely the same principle as that class of cases where the plaintiff was being carried on his way from and to his place of labor by the railroad com- 94 LIABILITY OF RAILROADS pany, by consent, custom, or contract, and was injured by the negligence of other employees of the company. This carriage to the plaintiff was the means, facility, and advantage to which he was entitled by reason of his being an employee or servant, which entered into and became a part of his contract of employment or were incidental and necessary to it. . . . ' . . . Again, it may be said that the plaintiff was still an employee, because he was attempt- ing to use the pathway between the cars as the only customary and convenient means of access to and exit from the roundhouse which the com- pany had provided and was under obligation to keep open and safe for him and his fellow-workmen when he was injured.' "In Boldt v. New York C. R. Co., 18 N. Y. 432, plaintiff was injured while walking on a new track from his house to his work. The court said : ' But he was in the defendant's employment and doing that which was essential to enabling him to dis- charge his particular duty, viz., going to the spot where it was to be performed, and he was, more- over, going on the track where, except as the ser- vant of the company, he had no right to be. He was there as the employee of the company, and because he was such an employee.' "But it is urged that Fletcher v. Baltimore & Potomac R. Co., 168 U. S. 135, 18 Sup. Ct. Rep. TO INTERSTATE EMPLOYEES 95 35, sustains the view of the defendant on this question. We do not so read that case. There the plaintiff at the time of the accident had ended his work for the day, and had left the workshop and grounds of the defendant, and was moving along a public highway in the city with the same rights as any other citizen would have, when he was struck by the rebounding of a stick of timber thrown from a train of the defendant by one of its employees, a practice permitted by the company, and injured. It was held that ' the liability of the defendant to the plaintiff for the act in question is not to be gauged by the law applicable to fellow- servants, where the negligence of one fellow- servant by which another is injured imposes no liability upon the common employer.' Manifestly that case and this are materially different. There the plaintiff was not on the premises of the de- fendant, but upon a public highway where his relations to the defendant were precisely those of the general public to it. Its relation to him, there- fore, in such a situation was precisely what it would have been to any other pedestrian. Here, how- ever, the plaintiff was upon the premises of the defendant, upon its invitation, in the line of his employment, and solely because of such employ- ment. We hold, therefore, that at the time of his death Tucker was within the protection of said Act." 96 LIABILITY OF RAILROADS § 19. Causal Relation between Employment and Injury. The title of the Employers' Liability Act is "An Act relating to the liability of common carriers by railroads to their employees in certain cases." From this title, as well as from the context of the Act, it is apparent that the remedy provided is one which arises only when the employee is killed or injured from a cause which is incidental to 0} arising out of railroad employment. If any injury arises from a cause in no manner connected with, or arising out of such employ- ment, no recovery is possible under the Act. Section 1 expressly limits the right of recovery under its terms "to any person suffering injury while he is employed by such carrier in such commerce." In Armitage v. Lancashire & Yorkshire Ry. Co., 4 Minton-Senhouse Workmen's Compensation Cases, 5, in which case A maliciously threw a piece of iron at B, which struck the eye of C who was at work, it was decided that a workman who was injured through the tortious act of a fellow-work- man, which had no relation whatever to their employ- ment, had no claim against his employer, because the injury did not arise out of the employment. Collins, M. R., in delivering the opinion of the court, said: "It seems tome that in such a case the accident would not arise ' out of or in the course TO INTERSTATE EMPLOYEES 97 of the employment.' It would not be an incident of the employment at all. It would be entirely outside the scope of the employment of the doer of the act and of the injured workman. . . . It seems to me, as a matter of law, that we cannot say that the injury caused by a missile thrown by another workman entirely outside the scope of his employment was caused by an accident which arose out of his employment." There must be, as Lord M'Laren said in O'BrienS v. Star Line, Limited, I Butterworth's Workmen's \ Compensation Cases, 177, at page 181, "some causal relation between the employment and the accident." ^ ^ S In the case of Jackson v. Chicago, R. I. & P. / Ry. Co., 178 Fed. Rep. 432, 435, Smith McPherson/ District Judge, said: "The test of the employer's liability is not the fact that the negligent act of/ the servant was during the existence of his em-\ ployment; nor is the test that his act was done \ during the time he was doing some act for his ) employer. But the test is: Was the act causing the injury done in the prosecution of the master's business? Clancy v. Barker, 131 Fed. Rep. 161; Bowen v. Illinois C. R. Co., 136 Fed. Rep. 306; St. Louis S. W. R. Co. v. Harvey, 144 Fed. Rep. 806; Morier v. St. Paul, M. & M. R. Co., 31 Minn. 351, 17 N. W. Rep. 952; Hudson v. Missouri K. & T. R. Co., 16 Kan. 470." 98 LIABILITY OF RAILROADS "But where the servant, instead of doing that which he was employed to do, does something which he was not employed to do at all, the master cannot be said to do it by his servant," Maule, J., in Mitchell v. Crassweller, 13 C. B. 235, and Parke, B., in Joel v. Morrison, 6 C. & P. 501, "but if he was going on a frolic of his own, with- out being at all on his master's business, the master will not be liable." ; The statute makes the carrier liable for negli- gence of any of its officers, agents, or employees. Logically, therefore, the negligence to be actionable \ must be in the capacity of officers, agents, or I employees. It is not every act of negligence of a person who happens to be an employee, but the negligence of an employee, as such. The negli- gence must have some natural relation to the employment or business of the carrier, and must be negligence relating to or incidental to the employer's business. Of course, the statute does not apply to an injury received at a time, and place, and from a cause entirely disconnected with the employment. TO INTERSTATE EMPLOYEES 99 CHAPTER VI CONSTRUCTION OF THE ACT § 20. Statute is not Retroactive. And this was the interpretation given also to the Act of June 11, 1906. Hall v. Chicago, R. I. & P. Ry. Co., 149 Fed. Rep. 564. It was decided in the case of Winfree v. North- ern Pacific Ry. Co., 164 Fed. Rep. 698, that the expression " action hereafter brought, "in section 3 of the present Act indicates that the Act "does not apply to an action by an employee for an injury received before the statute was enacted." § 21. No Recovery when Injury Caused Solely by Plaintiff's own Negligence. If the injury is caused solely or primarily by the employee's own negligence, he cannot recover. If it was caused in whole or in part by the negligence of the railroad or any of its employees other than himself, he, or in case of his death his dependents, may recover. If the negligence of the railroad or any of its employees was the primary cause of, or proximately contributed to, the injury, a recovery may be had under the Act. Kennedy v. Erie Railroad Co., Charge to jury of District 100 LIABILITY OF RAILROADS Judge McCall, U. S. Circuit Court, Northern District of Ohio, November 13, 1909, not yet reported. § 22. Venue of Action. The Act as amended in 1910 permits a plaintiff to bring his suit in the Circuit Court 1 of the district where the cause of action arose, or in the district where the defendant may be doing business. § 23. Jurisdiction Concurrent in State and Federal Courts. The amended Act of 1910 also permits a con- current jurisdiction over actions for damages under this law in the courts of the several States and the courts of the United States. This permits the plaintiff to bring his action in a State court, and when the action is so begun, the defending rail- road is prohibited from removing the case from the state to the federal court. § 24. Survival of Action. The Act as amended provides for the survival of any right of action for the benefit of the sur- viving widow and children, in case an employee dies after receiving personal injuries. 1 For statement relative to the discontinuance of the Cir- cuit Courts of the United States and the assumption of their jurisdiction by the United States District Courts, see footnote on page 38. to interstate employees 101 § 25. Construction of Section 1 of the Act of 1908. If the construction which has been given to the concluding portion of section 1, by District Judge Whitson, Eastern District of Washington, in the case of Campbell v. Spokane & Inland Empire R. Co., not yet reported, is correct, the provision giving a remedy against the carrier for death or injury of an employee which arises "by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, ma- chinery, track, roadbed, works, boats, wharves, or other equipment" amounts only to a legislative re-enactment of the common law. In that case Judge Whitson said: "The theory that the provision allowing damages for defects or insufficiency in cars, engines, and the like has enlarged upon the liability theretofore existing cannot be accepted. No enactment was needed to enable an employee to hold his employer to the payment of damages when negligent in this regard." But the law of negligence as it existed generally throughout the country before the enactment of the Federal Employers' Liability Act provided no remedy for an injured railroad employee, no mat- ter how flagrant the negligence of his employer in permitting its cars, appliances, machinery, etc., to become defective, if the employee had knowl- 102 LIABILITY OF RAILROADS edge of the defective condition of such equipment and continued to use it in his work. He was then presumed to have assumed the risk of injury from such appliances. This was the common-law rule. This "assumption of risk" was contractual and arose out of the contract of employment. But this statute makes void any contract "the pur- pose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act." Therefore no contract for an assumption of risk is legally enforceable, either expressly or by implication. Certainly no express contract that the employee should assume the risk of defective appliances of the carrier which employed him would be of any avail to the defendant. Can it be possible that an implied contract may be pre- sumed which may be given legal force and efficacy where an express contract would fail to do so? If as to the defective appliances mentioned in the statute there is no assumption of risk arising from the employees' use of such appliances, with full knowledge of the character of the defects, then "the liability theretofore existing" has been "enlarged." This seems to be sustained by the reasoning of the Court of Appeals of the District of Columbia in the case of Philadelphia, B. & W. R. Co. v. TO INTERSTATE EMPLOYEES 103 Tucker, 1 35 App. D. C. 123, in its discussion of the interpretation of the Act of 1908. In that case the Court said: "In this assignment it is sought to interpose as a defense to the action the doctrine of assumption of risk. While the Act does not in terms refer to this doctrine, it does provide in section 3 'that no contract of employment . . . shall constitute any bar or defense to an action brought to recover damages for personal injuries to or death of such employee.' The doctrine of assumption of risk results from the contractual relations of the parties. . . . "In 1897 an Employers' Liability Act was passed in North Carolina. Section 2 of that Act provides : 'That any contract or agreement expressed or implied made by an employee of said company to waive the benefit of the aforesaid section shall be null and void.' Thereafter suit was brought by a railroad employee who was injured by reason of a patent defect in an engine, and the defense was that, inasmuch as he had continued to use this engine for some time after this defect was known 1 The Supreme Court of the United States on May 29th, 1911, affirmed the decision of the Court of Appeals, District of Columbia, in the case of Philadelphia, Baltimore & Washington Railroad Company, Plaintiff in Error v. Lillian Tucker, Admx., in a per curiam opinion citing the cases of El Paso & N. E. Ry. v. Gutierrez, 215 U. S. 87; and Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549. 104 LIABILITY OF RAILROADS to him, he assumed the risk of accident result- ing from said defect. The court, however, ruled otherwise. The court said, Coley v. North Caro- lina R. Co., 128 N. C. 534, 39 S. E. Rep. 43: 'It is agreed that assumption of risk is con- tractual either by express terms or by impli- cation; and disputes usually were as to whether the plaintiff contracted by implication or as- sumption for dangers not existing at the date of employment. And it would seem by this Act that the Legislature intended to put an end to such contentions, by saying in the first section that he shall have a right of action for injuries caused by such defective machinery, and by pro- viding in the second section that he cannot waive this right by contract express or implied.' The court in this opinion also called attention to the English case of Smith v. Baker, 1891, Appeal Cases, L. R., H. of L. 325, 60 L. J., Q. B. n. s. 683, in which was considered the English Em- ployers' Act of 1880, which provides that an employee shall not maintain an action against his master for injuries received from defective machinery, ways, etc., unless he gives notice of such defects to the master or some superior, unless the master already knows of the defects. A ma- jority of the Lords who rested their opinions upon 1 he Act agreed that it did away with implied as- sumption of risk. . . . TO INTERSTATE EMPLOYEES 105 "In interpreting this Act we should bear in mind 'the purpose of Congress to regulate the liability of employer to employee, and its evident intention to change certain rules of the common law which theretofore prevailed as to the responsibility for negligence in the conduct of the business of trans- portation.' El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. Rep. 217. Having that purpose in mind, courts ought not to place such a construction upon the Act un- less compelled by its terms so to do, as will in a large measure defeat such purpose. There are comparatively few employees of common carriers who would sacrifice their positions because of known defects. We think this Act was intended to quicken the responsibility of carriers and, by doing away with the doctrine of assumption of risk in cases based upon their negligence, compel them to take proper precautions for the safety of their servants. In other words, the Act was meant to discourage negligence. It is an easy thing to say that no one is compelled to remain in the service of the carrier, but experience demonstrates that this is only half a truth. It is the policy of the law to protect, so far as possible, those pursuing, and oftentimes necessarily pursuing, so hazardous an employ- ment. It is enough that they must assume the intrinsic risks of their calling, without com- 106 LIABILITY OF RAILROADS pelting them to assume the negligence of their employers. "Our attention is directed to the difference in the phraseology of the Employers' Liability Act of April 22, 1908 (35 Stat, at L. 65, chap. 149), XJ. S. Comp. Stat. Supp. 1909, p. 1171, as bearing upon the question under consideration. That Act excuses employees from the rule of contributory negligence in any case where a failure by the carrier to comply with any statute enacted for the safety of employees contributed to the injury complained of. The Act then provides that the doctrine of assumption of risk shall not be appli- cable to such a situation. We see no reason why that Act should be interpreted as a legislative declaration that the prior Act of 1906 did not do away with the doctrine of assumption of risk, in so far at least as the injury forming the basis of the action resulted from the negligence of the carrier. There was special reason in the later Act for inserting a provision in respect of the doctrine. Moreover, it well might be held that since the first section of the later Act in terms charges the master with responsibility for any defect or in- sufficiency due to its negligence in its cars, engines, appliances, etc., that such a statute was 'enacted for the safety of employees/ and hence that the failure of the carrier to keep its cars, engines, appliances, etc., sufficiently free from defects TO INTERSTATE EMPLOYEES 107 would prevent such carrier not only from inter- posing the defense of assumption of risk, but also from interposing the defense of contributory negligence. In other words, would the carrier, after admitting its negligence in failing to install and maintain proper and sufficient cars, engines, appliances, etc., and the injury resulting there- from, be permitted to escape responsibility by resorting to the defense of assumption of risks ? Clearly had section 1 in terms provided that car- riers should install and maintain proper and sufficient cars, etc., and that the failure to do so would render it liable for accidents resulting from such failure and deprive it of the defense of con- tributory negligence, the carrier would not be per- mitted to defeat the law by resorting to the doc- trine of assumption of risk. Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 52 Atl. Rep. 531. We are not called upon, however, to interpret the Act of 1908, and have alluded to it for the sole purpose of ascertaining, if possible, whether it sheds any light upon the meaning of the prior Act. We are not prepared to say that there is anything in the later Act which compels a different view than we have taken of the earlier one. Having in mind, therefore, the scope and purpose of the Act of 1906, we rule that the trial court was right in refusing the defendant's instruction upon the subject of the assumption of risk." 108 LIABILITY OF RAILROADS There is some importance and force to the sug- gestion of the District of Columbia court that the first section of the Act " in terms charges the master with responsibility for any defect or in- sufficiency " in the appliances named therein, that it is a statute "enacted for the safety of employees," and, therefore, that a failure on the part of the carrier to keep its cars and other appliances free from defects would relieve the plaintiff from any assumption of risk and from contributory negligence. This is the only interpretation which gives any force and effect to the language used by Congress in the latter part of the first section relating to de- fect and insufficiency in "cars, engines, appliances, machinery, tracks, roadbed, works, boats, wharves, or other equipment." According to Judge Whit- son's view no such enactment was needed. There- fore this provision was purposeless and added nothing to the remedial rights of the employee. But it is not lightly to be assumed that there was no purpose of Congress in the enactment of this provision. If a meaning can reasonably be found for its enactment, that interpretation should be followed. As the interpretation of the provision as to defects in cars, etc., followed in the Tucker Case seems to be logical, reasonable, and consonant with the general purpose and intent of the Act, TO INTERSTATE EMPLOYEES 109 it will probably be sustained rather than an inter- pretation which gives no force or effect to its terms. The common law places a premium upon de- fective appliances in one application of the well- known doctrine of assumption of risk, in this, that the more obviously defective instrumentali- ties are, the more easily may the employer demon- strate the knowledge of the defective condition on the part of an injured employee, and thus bar the latter's right to recover damages caused by the employer's admitted negligence. It may well be presumed that the provision making the defendant liable for a casualty to an employee caused by the defective condition of machinery, appliances, etc., of a carrier was intended to change this rule of the common law. Unless this construction is given the provision in section 1, as to defective machinery, appliances, etc., no possible purpose could exist for Congress merely to enact the common-law rule, leaving applicable to its provisions the assumption-of- risk doctrine, which deprives an employee of a remedy where the defects were notorious and manifest. This would not be consistent with the legislative hostility to the doctrine of assumption of risk shown throughout the statute. It is not consistent with the legislative intent to protect employees. Congress did not qualify the rule that defective 110 LIABILITY OF RAILROADS machinery, appliances, etc., were to be made the basis of a remedy for casualties resulting therefrom. It may therefore be presumed that the legislation was intended to give a remedy in such case un- qualifiedly, and without regard to the common- law rule which exempted the master from liability where the defects were manifest and known to the employee. Unless such Congressional intent ex- isted, there was no reason for enacting a provision as to the specific defects enumerated in the first section. The place this provision occupies in the Act indicates that it was not of minor importance, but to qualify this provision with the assumption-of- risk doctrine would give to it no importance and no meaning. TO INTERSTATE EMPLOYEES 111 CHAPTER VII STATUTES FOR SAFETY OF EMPLOYEES AND EFFECT OF THEIR VIOLATION § 26. Effect of the Violation of "Any Statute." The most radical and important departure made , by this statute from the rules of law heretofore ^ enunciated is found in the total abolition of the doctrines of contributory negligence and assump- / tion of risk in all cases where the violation of any statute enacted for the safety of employees con- tributed to the casualty upon which the suit is based. This seems to establish an absolute right of a / plaintiff to recover damages upon proof of the following: (a) That plaintiff was employed by defendant; (6) That defendant was a common carrier en- gaged in interstate commerce by railroad; (c) That plaintiff met with injury while he was engaged in interstate commerce; and, (d) That the violation of a statute enacted for the safety of employees contributed to the injury upon which his suit is based. It is clear that in such a case no defense is open 112 LIABILITY OF RAILROADS to the defendant arising out of the doctrine of as- sumption of risk or contributory negligence. In this particular the employee is given an advan- tage even over a passenger. The railroad may always defend against a suit for damages for personal injuries brought by a passenger, that the negligence of the passenger contributed to the injury. This defense is not now open in a suit by an employee engaged in interstate commerce, when the injury complained of is one to which the railroad's violation of a statute enacted for the safety of employees in any manner contributed. § 27. The Safety Appliance Acts. The most important of these statutes, the violation of which by an interstate railroad affords a basis for an action for personal injuries under the Employers' Liability Law, is the so-called Safety Appliance Act of 1893, as amended in 1896 and 1903. A full discussion of these statutes will be found on page 276 et seq., post. There seems to be no escape from the conclusion that Congress intended to give an absolute remedy to all interstate railroad employees who were injured by reason of the absence or defective con- dition of appliances required by statutes enacted to provide for the safety of employees. Sections 3 and 4 of the Employers' Liability Act TO INTERSTATE EMPLOYEES 113 of 1908 definitely and expressly indicate the in- tention of Congress to give to any employee to which the Act applies an absolute right to recover, where the employer has violated any of the statutes enacted to preserve the safety of employees. The language of the Act does not require that the violation of such safety statute shall be the sole cause of the accident, for the carrier is made absolutely liable where such violation contributed to the casualty, although this has been interpreted to mean that such violation was the proximate cause of the injury complained of. In the case of Johnson v. Great Northern Ry. Co., 178 Fed. Rep. 643, 647, Judge Munger said: "Nor do we think any question of contributory negligence or assumed risk upon the part of the plaintiff material in the determination of the case before us, Schlemmer v. Buffalo, R. & P. Ry. Co., 205 U. S. 1, 27 Sup. Ct. Rep. 407. By section 8 of the Safety Appliance Act it is provided ' That any employee of any such common carrier, who may be injured by any locomotive, car, or train, in use contrary to the provision of this Act, shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge.' "Again, we think the facts bring the case within 114 LIABILITY OF RAILROADS the provisions of Act Cong., April 22, 1908, c. 149 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1172) known as the ' Employers' Liability Act,' as the de- fendant in moving the car in question was engaged in interstate commerce, plaintiff was employed by such carrier in said commerce, and the proximate cause of the injury was the defective condition of the coupling pin. By that Act the question of contributory negligence, when applicable, is one of fact, to be submitted to the jury. The Act also provides: 'That no employee, who may be injured or killed, shall be held to have been guilty of con- tributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. . . . "From a consideration of the whole case, we think the defendant a railroad company engaged in interstate commerce; that the car in question had upon it a coupler which was defective and did not comply with the Act of Congress; that at the time plaintiff was injured the movement of the car was a movement by defendant in interstate com- merce; that plaintiff was injured while a servant of defendant and in the performance of his duty, aiding in the movement of interstate commerce; that the movement of the car with the defective coupler was the proximate cause of plaintiff's injury; that plaintiff did not assume the risk of TO INTERSTATE EMPLOYEES 115 injury incident to the employment. Whether plaintiff was guilty of any negligence which con- tributed to the injury was, if applicable, a question for the jury." § 28. The Hours of Service Law. Under the Hours of Service Law, 34 Stat. L. 1415, 1416, cases will undoubtedly arise where a right to recover is based upon the death or injury of an employee resulting from a violation of the terms of this statute. Where an employee is now on duty in excess of the period prescribed by the Hours of Service Law, such violation of statute would clearly entitle him, if he were injured, to recover under the provision of the Employers' Liability Act, without any defense being open to the railroad on the ground either of assumption of risk or contributory negligence. In the case of New York v. Erie R. Co., 198 N. Y. 369, 91 N. E. Rep. 849, the Court said: "One familiar form of this class of legislation is that which has for its object the promotion of the health and welfare of the employee, as especially in the case of women and children. Another class seeks to protect the safety of the public by limiting the hours of labor of those who are in control of dan- gerous agencies, lest by excessive periods of duty they become fatigued and indifferent and cause accidents leading to injuries and destruction of 116 LIABILITY OF RAILROADS life. This statute comes within the latter class, and this court, in the case of Pelin v. New York C. & H.R. R. Co., 102 App. Div. 71, 115 App. Div. 883, 188 N. Y. 565, affirmed a judgment where the basis of the recovery was as here, that the defendant had permitted or required an em- ployee to be on duty for a length of time in excess of that prescribed by another section of the Act which we are now considering." Another case upon this subject arising in North Carolina is the case of Lloyd v. North Carolina R. Co., 151 N. C. 536, 66 S. E. Rep. 604, upon which a right of action was based upon the re- quirement of service for a longer period than that permitted by the Hours of Service Law. In this case, however, the court held that the plain- tiff's right of recovery could only be based upon said law upon this subject which made penal the act of the employee in remaining on duty for a service in excess of the period therein prescribed. The court held that the participation by the plain- tiff in the unlawful act of remaining on duty dis- qualified him from a recovery on the ground that he was a participator in the violation of law, and was therefore not entitled to call upon the defendant to indemnify him from an injury which the court held resulted from such unlawful participation. That the Hours of Service Act is constitutional has been held in United States v. Illinois Central TO INTERSTATE EMPLOYEES 117 Ry. Co., 180 Fed. Rep. 630, and in Wisconsin v. Chicago, M. & St. P. Ry. Co., 136 Wis. 407, 117 N. W. Rep. 686. A case is now pending before the Supreme Court in which reargument has been ordered, which involves the question of the constitutionality of the Hours of Service Act. Baltimore & Ohio R. Co. v. Interstate Com- merce Commission, 31 Sup. Ct. Rep. 621. See also the recent cases: Black v. Charleston & W. C. Ry. Co., 69 S. E. Rep. 230; Kansas City So. Ry. Co. v. Quigley, 181 Fed. Rep. 190. § 29. The Ash Pan Law. Under the terms of the Employers' Liability Act a railroad company cannot plead the defenses of assumption of risk or contributory negligence in a suit for personal injuries received by an employee by reason of a violation of the provisions of the so-called Ash Pan Law of May 30, 1908, 35 Stat. L. 476, c. 225. This Act requires in terms that every locomotive engine engaged in interstate commerce shall be equipped with an automatic ash pan, self-dumping in its operation, which will permit the cleaning of the fire box and appurtenances without requiring the presence of a man or men beneath the engine. The full text of the statute will be found on page 333 of the Appendix, but as yet the law has never been adjudicated. 118 LIABILITY OF RAILROADS § 30. The Locomotive Boiler Inspection Law. This law provides, inter alia, "That, from and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this Act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provi- sions of this Act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for." This statute clearly falls within the provisions of the Employers' Liability Act of 1908, inasmuch as in its title the purpose is manifested of pro- moting the "safety of employees and travelers upon railroads "; and while, of course, it has not been construed by the courts, it is only reasonable to assume that cases will arise for death or injury caused by its violation. § 31. State Statutes. While it is manifest that violations of federal statutes enacted for the safety of employees will TO INTERSTATE EMPLOYEES 119 have the effect of barring the defense of contribu- tory negligence and assumption of risk, it is by- no means clear that the scope of these provisions of the law is limited to such federal statutes. The words "any statute" would seem naturally to include the statute of a State enacted for the safety of employees as well as a federal statute. In the Johnson Case, 196 U. S. 1, Chief Justice Fuller adopts the rule laid down by Mr. Justice Story in United States v. Winn, 3 Sumner 209: "In short, it appears to me that the proper course in all these cases is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature." Tested by this rule it would seem that the mani- fest purpose of Congress to provide for the safety of employees and to compensate for casualties which overtake them while in the hazardous work of railroading, would best be promoted by an in- terpretation tending to require of the railroads a strict compliance with all laws, state and federal, enacted for the safety of employees. The Employers' Liability Act of 1908 was en- acted after Mr. Justice Brewer had written, in the dissenting opinion in the Schlemmer Case, 205 U. S. 1, 27 Sup. Ct. Rep. 407, that "the rule is well settled that while in cases of this nature a 120 LIABILITY OF RAILROADS violation of the statutory obligation of the em- ployer is negligence per se, and actionable if in- juries are sustained by servants in consequence thereof, there is no setting aside of the ordinary rules relating to contributory negligence, which is available as a defense, notwithstanding the statute, unless that statute is so worded as to leave no doubt that this defense is also to be excluded." Evidently Congress had this expression in view when it expressly provided that such defenses should not be available where a statute is violated. It was the rule which Mr. Justice Brewer laid down which Congress intended to change and abrogate. This rule manifestly applied generally to the violation of any statute, state or federal, which was in existence at the time of the injury. The violation of any " statutory obligation" was to be the basis of the denial of defenses otherwise available. This is a rule to compel compliance with a safeguard required by any legal enactment. It is a rule Compelling care in safeguarding of the lives of railroad employees. It is a law which tends to enforce all laws enacted for the safety of employees. When negligence has reached the point of law-breaking, that is, the violation of any law, Congress evidently intended that the burden of the injuries resulting as its consequences should not be visited upon those who were powerless, but TO INTERSTATE EMPLOYEES 121 upon those "who could measurably control the causes" of such injuries. That Congress intended this interpretation may be gathered from the use of the term " any statute," and from the use of the term "any law" in the report of the Committee explaining this provision. In the determination of the question of the pro- visions in sections 3 and 4, extending the liability of the carrier to any case "where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of said employee," it may be noted that in the bill originally under consideration by the Committee, as proposed by Senator La Follette, the expression used was "where the violation of law by such common carrier, etc." This was made the subject of criticism before the Senate Committee on Education and Labor, February 21, 1908, and Charles J. Faulkner, Esq., counsel for the railroads, objected to this provision, and com- mented upon it as follows, page 43: "In other words, it takes from the carrier all defenses by proof that a law has been violated. The term law means a statutory law, a common-law prin- ciple, a rule or decision of a court that binds the carrier or any other provision of law, even the ordinance of a town. ... If the Chairman will permit, I would submit to the lawyers of the Com- mittee the proposition that there can be no action- 122 LIABILITY OF RAILROADS able negligence of a carrier that is not a violation of law. How can any case be presented in which the grossest negligence could be pleaded or even set up as a matter to determine the measure of damages, and how can there be any reduction of the damages because of contributory negligence where there is no actionable case of negligence that is not a violation of law. In other words, we are using language here which will confuse, which will lead and invite litigation, when a plain, simple declaration of what is the purpose of the Com- mittee can be made in such a way as to avoid any misunderstanding." And thereafter at the hearing Mr. R. H. Fuller, representing the railroad brotherhoods in advocacy of this legislation, said, page 109: "Now with re- gard to that provision of the bill which prevents a carrier from pleading the doctrine of contributory negligence in the event an employee is injured as the result of the carrier's violation of law, we do not think it is susceptible of that strained con- struction which was put upon it by ex-Senator Faulkner and the honorable Senator from Mary- land. It was only intended to apply in cases where a carrier had violated some statutory law passed for the protection of employees, and we are willing that the provisions shall be so amended as to limit it to those cases if, in the judgment of the Committee, such an amendment is necessary. . . ." TO INTERSTATE EMPLOYEES 123 On page 112 of this Report the following dia- logue is noted: "Senator Brandegee. You would be satisfied if that provision of the bill which says that the company cannot take advantage of that defense in case they violate the law was modified to read ' any law passed for the protection of employees ' ? " Mr. Fuller. Yes, sir. "Senator Brandegee. Something like that? "Mr. Fuller. Yes, sir, Senator, that is all it was intended for, and I do not think it would be held to apply to such cases as were mentioned. "Senator Brandegee. I think it could be, as it is without limitation, and the word ' law ' would be broad enough to cover an ordinance. "Senator Borah. It has been so held." It may be fairly assumed that when the change was made from the bill as drafted to the language in which it was finally enacted, and the words " a law " were stricken out and the words " any statute " inserted, that this change was pri- marily made to relieve the Act of the criticism that, as originally drafted, it included any viola- tion of law, common law, or statute, or even a municipal ordinance, and from this examination of the reports of the hearing before the com- mittee, it seems plain that it was the intention of Congress that the words "any statute" should include any statute, state or federal. 124 LIABILITY OF RAILROADS If it had been intended to limit this provision to federal statutes alone, the language used, and which is generally used with such intent, would have been "any Act of Congress," as is apparent from the use of this expression elsewhere in the Act. It is objected that this interpretation of the Act would render it constitutionally objectionable, as extending the federal rule to the limits of state legislation, or as making state legislation beyond the scope of federal power indirectly a part of the Federal Act, and that it admits a lack of uniformity in the regulations laid down in the Act by reason of the diversity of the statutes for safety as they exist in the different States. These contentions seem to be fully met and answered by the opinion of Chief Justice Mar- shall in Gibbons v. Ogden, 9 Wheat. 1, 207, where he says: "Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on any subject." And at page 205, "The Acts of Congress, passed in 1796 and 1799 (2 U. S. L., p. 545; 3 IT. S. L., p. 126) empowering and directing the officers of the general government to conform to and assist in the execu- tion of the quarantine and health laws of a State, proceed, it is said, upon the idea that these laws are constitutional. . . . Congress . . . has di- rected its officers to aid in the execution of TO INTERSTATE EMPLOYEES 125 these laws; and has in some measure adapted its own legislation to this object, by making provisions in aid of those of the States. But in making these provisions, the opinion is unequivocally mani- fested, that Congress may control the state laws, so far as it may be necessary to control them, for the regulation of commerce." Congress may adapt its legislation to state statutes for safety upon identically the same grounds as justified such action as to state health and quarantine Jaws. 126 LIABILITY OF RAILROADS CHAPTER VIII DAMAGES AND SUIT BY POOR PERSON § 32. Damages for Personal Injuries. For personal injuries not resulting in death, the employee who has a right to recover under the Employers' Liability Act is entitled to recover for pain and suffering, for loss of employment for such time as the injury affects ability to work, for compensation for disfigurement or disability, and for expenses of nursing, medical and surgical attendance. § 33. Damages for Death Prior to Act of 1910. For a death as the result of an injury received prior to April 5, 1910, the measure of damages was the loss in money that such death of the em- ployee caused to the beneficiaries, and as to such cases there was no survival of the cause of action for the pain and suffering or the expense to which the deceased employee had been subjected as a result of the accident. Walsh v. New York, N. H. & H. R. Co., 173 Fed. Rep. 494; Cain, Admx. v. Southern Ry. Co., U. S. Circuit Court, Knoxville, Tennessee, 1911. TO INTERSTATE EMPLOYEES 127 § 34. Amendatory Act of 1910. Section 2 of the Act of April 5, 1910, amending the Liability Act of 1908, enacted that "Any right of action given by this Act to a person suffering injury shall survive to his or her personal repre- sentative for the benefit of the surviving widow, or husband and children of such employee, and, if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee, but. in such cases there shall be only one recovery for the same injury." In cases aris- ing under this amendment, that is, in cases of death resulting from injury received subsequent to April 5, 1910, the beneficiaries are entitled to recover all the damages which the deceased em- ployee suffered or to which he was subjected as the result of the injury, and in addition thereto such pecuniary recompense as may compensate the beneficiary for the loss of the support and sus- tenance resulting from such death. In estimating this amount the jury has the right to take into consideration the age of the deceased, his health, strength, and capacity to earn money. Under the rule laid down by Mr. Justice Harlan in Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, the widow and young children who depend for support entirely upon the labor of a husband and father would be entitled to recover greater dam- ages than would be the case if there were no widow 128 LIABILITY OF RAILROADS and children and if the next of kin were not solely dependent upon the deceased for support. § 35. Annuity Tables. As was laid down in the case of Walsh v. New York, N. H. & H. R. Co., 173 Fed. Rep. 494, "annuity tables may be considered by the jury in ascertaining the compensation the plaintiff is entitled to receive for the pecuniary injuries sus- tained by the widow and children by reason of the death of the intestate; but the jury may also consider the state of health of the intestate, his age, habits, occupation, and the likelihood of his being able to work during the period of his ex- pectancy of life. ' ' And in the case of Cain, Admx. v. Southern Ry., ante, in charging jury, District Judge Sanford said: "Now you have heard the evidence as to the expectancy of life of a man of the age of this man, based upon the mortality tables of the insurance companies, the data collected by the insurance companies. Those are admitted in evidence merely to aid you, and they are not to control you. They are simply based upon averages, and there is no certainty that any man will live the average dura- tion of life. Those things are at the best probabili- ties, and a man's expectancy of life varies with his occupation. . . . And the first question for you to consider in that aspect of the case would TO INTERSTATE EMPLOYEES 129 be in what sum of money would compensate . . . for the loss in money that may be reasonably said to have resulted through the death of the husband and father, and the test would be what sum in money paid in a lump sum at the present time would compensate for the loss of money that they had a reasonable expectation, under all these circumstances, of receiving from their husband and father, if the husband and father had lived. That obviously would depend upon a great many considerations: upon his wages, what he was receiving and probably would receive; upon the expectation of living that he had, how long he probably would have lived to have given them money, on how much he spent on himself as dis- tinguished from what he spent on his wife and children, because, of course, the part of his wages that he would have spent upon himself would be entirely eliminated from your calculations; and then, too, it would depend upon the reasonable expectations that his widow and children had of receiving the money from him and their probable expectancy in life would have to be considered, how long they would probably live and how long the children would probably have received money from their father, which might depend upon whether the children were boys or girls. It de- pends upon a variety of circumstances. There is no hard and fast mathematical rule that can be 130 LIABILITY OF RAILROADS laid down. It is a matter that addresses itself to the sound common sense of the jury under all these circumstances." § 36. Suit by Poor Person. Taking cognizance of the fact that many plain- tiffs are unable, by reason of their poverty, to pay the onerous expenses incident to proceedings in the United States courts, Congress, by an Act approved June 25, 1910, 61st Congress, Sess. II, c. 435, enacted: "That any citizen of the United States entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prose- cute or defend to conclusion any suit or action, or a writ of error, or an appeal to the Circuit Court of Appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the. opinion of the court such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court or give security therefor, before or after bringing suit or action, or upon suing out a writ of error or appealing, upon filing in said court a statement under oath in writing that because of his poverty he is unable to pay the costs of said suit or action or of such TO INTERSTATE EMPLOYEES 131 writ of error or appeal, or to give security for the same, and that he believes that he is entitled to the redress he seeks by such suit or action or writ of error or appeal, and setting forth briefly the na- ture of his alleged cause of action or appeal.' ' 132 LIABILITY OF RAILROADS PART TWO The Constitutionality of Employers Liability Act of 1908 CHAPTER IX CONGRESS MAY REGULATE THE RELATION BE- TWEEN MASTER AND SERVANT ENGAGED IN INTERSTATE COMMERCE § 37. Constitutionality of the Act: In General. The constitutionality of the Employers' Lia- bility Act of 1908 has been expressly upheld in Walsh v. New York, N. H. & H. R. Co., 173 Fed. Rep. 494; Fulgham v. Midland Valley R. Co., 167 Fed. Rep. 660; Watson v. St. Louis, I. M. & S. Ry. Co., 169 Fed. Rep. 942; Zikos v. Oregon R. & N. Co., 179 Fed. Rep. 893; Colasurdo v. Central R. R. of N. J., 180 Fed. Rep. 832; St. Louis, I. M. & S. Ry. Co. v. Conley, 187 Fed. Rep. 949; Bradbury v. Chicago, R. I. & P. Ry. Co. (Iowa), 128 N. W. Rep. 1; Owens v. Chicago G. W. Ry. Co. (Minn.), 128 N. W. Rep. 1011. In the following cases the constitutionality of the Act was upheld by implication: Johnson v. Great Northern Ry. Co., 178 Fed. Rep. 643; Roush v. Great Northern Ry. Co., U. S. Circuit Court, TO INTERSTATE EMPLOYEES 133 E. Dist. of Washington, October 5, 1909; Win- free v. Northern Pacific Ry. Co., 164 Fed. Rep. 698; St. Louis, I. M. &. S. Ry. Co. v. Hesterly (Ark.), 135 S. W. Rep. 874. But the constitutionality of the statute has been challenged on the following grounds: a. That Congress is without power to regulate the relation of Master and Servant; b. That the Act abridges the freedom of Contract; c. That the Act provides a discriminatory classification; and d. That Congress is without power to provide a remedy for injuries caused by intrastate servants. These will be treated in their order, and under sub-division e of this discussion will be considered seriatim the principal objections to the constitu- tionality of the Employers' Liability Act of 1908 suggested by the Supreme Court of Errors of Connecticut, in the case of Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352. § 38. Review of Authorities in which Power of Regulation is Implied. That the Act regulates the relation between master and servant is not of itself a constitutional objection to its validity. Where necessary and proper in order to regulate and safeguard inter- state commerce, Congress has the power to regu- 134 LIABILITY OF RAILROADS late the relation of master and servant engaged in that commerce. Congress has acted upon this interpretation in a well-recognized code of specific regulations of the terms of the contract of employment in the mer- chant marine. Such regulations can only be supported by the power to regulate commerce. Congressional power to enact such legislation is sustained by the Supreme Court in the case of Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. Rep. 821. Mr. Justice Story, in Barque Chusan, 2 Story, 455, 464, 465, said: "The power to regulate com- merce includes the power to regulate navigation with foreign nations and among the States; and it is an exclusive power in Congress. This I con- ceive has been firmly established by the Supreme Court of the United States. (See Gibbons v. Ogden, 9 Wheat. 1, 193 to 198.) And the doc- trine stands, as I conceive, upon grounds which cannot be shaken without endangering the inter- ests of the whole Union, if not the very exist- ence of the Constitution as a frame of government for the professed objects and purposes which it was intended to accomplish. Now, there cannot be a doubt that the prescribing of rules for the shipping of seamen and the navigation of vessels engaged in foreign trade, or trade between the States, is a regulation of commerce. In what re- I TO INTERSTATE EMPLOYEES 135 spect does the exercise of the power to regulate, control, or extinguish the liens given by the mari- time law for material-men upon foreign vessels, differ from the power to regulate the shipping of seamen, or the navigation of foreign vessels? Each is a regulation of foreign commerce, or commerce among the States. ... ( I The power of Congress to regulate the relation of master and servant, both being engaged in interstate commerce, is asserted by Mr. Justice | White in the Employer's Liability Cases, 207 U. S. 463, 495, where he said: "... We fail to per- ceive any just reason for holding that Congress is without power to regulate the relation of master and servant,' to the extent that regulations adopted by Congress on that subject are solely confined to interstate commerce, and therefore are within the grant to regulate that commerce, or within the authority given to use all means appropriate to the exercise of the powers conferred." Mr. Justice Moody, in his dissenting opinion in the same cases, stated that he agreed "entirely with all that was said in the opinion of Mr. Justice White in support of the power of Congress to enact a law of this general character." He further said, at page 526: "It would seem, therefore, that when persons are employed in interstate or foreign commerce, as the employment is an essential part of that commerce, its terms and conditions, and the 136 LIABILITY OF RAILROADS rights and duties which grow out of it, are under the control of Congress subject only to the limits on the exercise of that control prescribed in the Constitution. ..." Attention is called upon this point to the deci- sion in the case of Adair v. United States, 208 U. S. 161. In the majority opinion Mr. Justice Harlan, at page 178, in reference to the previous decision of that court in the Employers' Liability Cases, 207 U. S. 463, said: ". . . In that case the Court sustained the authority of Congress, under its power to regulate interstate commerce, to prescribe the rule of liability, as between inter- state carriers and its employees in such inter- state commerce, in cases of personal injuries received by employees while actually engaged in such commerce. ..." And in his dissenting opinion in the Adair Case, above quoted, Mr. Justice McKenna said, at pages 182, 183: "In the inquiry there is neces- sarily involved a definition of interstate com- merce and of what is a regulation of it. As to the first, I may concur with the opinion; as to the second, an immediate and guiding light is afforded by the Employers' Liability Cases, 207 U. S. 463. In those cases there was a searching scrutiny of the powers of Congress, and it was held to be competent to establish a new rule of liability of the carrier to his employees — in a TO INTERSTATE EMPLOYEES 137 word, competent to regulate the relation of master and servant, a relation apparently remote from commerce, and one which was earnestly urged by the railroad to be remote from commerce. To the contention the Court said: 'But we may not test the power of Congress to regulate com- merce solely by abstractly considering the broad subject to which a regulation relates, irrespective of whether the regulation in question is one of interstate commerce. On the contrary, the test of power is not merely the matter regulated, but whether the regulation is directly one of inter- state commerce or is embraced within the grant conferred on Congress to use all lawful means necessary and appropriate to the execution of that power to regulate commerce.' In other words, that the power is not confined to a regula- tion of the mere movement of goods or persons." And in the recent case of Atlantic Coast Line R. Co. v. Riverside Mills, 31 Sup. Ct. Rep. 164- 168, Mr. Justice Lurton delivering the unani- mous opinion of the court, said: "In the Em- ployers' Liability Cases, 207 U. S. 463, power to pass an Act which regulated the relation of master and servant so as to impose on the carrier, while engaged in interstate commerce, liability for the negligence of a fellow servant, for which at common law there was no liability, and depriving such carrier of the common-law defense of contributory 138 LIABILITY OF RAILROADS negligence save by way of reduction of damages, was upheld." The existence of this power of Congress over the subject of the relation of master and servant has again and again been asserted by the Supreme Court in cases where the validity of State legis- lation upon the same subject has been sustained "in the absence of legislation of Congress upon the subject." Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161; Minneapolis & St. Louis Ry. Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. Rep. 1176; Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. Rep. 585; Tullis v. Lake Erie & W. R. Co., 175 U. S. 348, 20 Sup. Ct. Rep. 136. In the case of Baltimore & 0. R. Co. v. Inter- state Commerce Commission, 31 Sup. Ct. Rep. 621, Mr. Justice Hughes said: ''For there cannot be denied to Congress the effective exercise of its constitutional authority. By virtue of its power to regulate interstate and foreign commerce, Congress may enact laws for the safeguarding of the persons and property that are transported in that commerce and of those who are employed in transporting them. Johnson v. Southern Pacific Company, 196 U. S. 1, 25 Sup. Ct. Rep. 158; Adair v. United States, 208 U. S. 177, 178, 28 Sup. Ct. Rep. 277; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. Rep. 616; TO INTERSTATE EMPLOYEES 139 Chicago, Burlington & Quincy Railway Co. v. United States, 31 Sup. Ct. Rep. 612. The funda- mental question here is whether a restriction upon the hours of labor of employees who are connected with the movement of trains in interstate trans- portation is comprehended within this sphere of authorized legislation. This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection to life and property necessarily depends. This has been repeatedly em- phasized in official reports of the Interstate Com- merce Commission, and is a matter so plain as to require no elaboration. In its power suitably to provide for the safety of employees and travel- ers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive tours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act. And in imposing restrictions having reasonable relation to this end there is no inter- ference with liberty of contract as guaranteed by the Constitution. Chicago, Burlington & Quincy Railroad Company v. McGuire, 219 U. S. 549, 31 Sup. Ct. Rep. 259. "If then it be assumed, as it must be, that in the 140 LIABILITY OF RAILROADS furtherance of its purpose Congress can limit the hours of labor of employees engaged in interstate transportation, it follows that this power cannot be defeated either by prolonging the period of service through other requirements of the carriers or by the commingling of duties relating to inter- state and intrastate operations." § 39. It is a Regulation of Terms and Con- ditions UNDER WHICH INTERSTATE COM- MERCE is Moved. The regulation of master and servant as laid down in the Employers' Liability Act may be sup- ported as a regulation of commerce: Because it is a regulation of the terms and conditions under which employees move com- merce. It is objected that the contract of em- ployment of interstate employees of interstate carriers is not commerce, but is only incidental and auxiliary thereto. This logic would exclude the regulation of freight rates. The contract fixing compensation for carriage of freight is as incidental and as auxiliary to the commerce itself as fixing the terms of the contract of service in interstate commerce. If the contract with a railroad by the shipper for the service of the carrier in interstate transportation is a proper subject of federal reg- ulation, and all admit that it is, why is not the contract with the railroad by the employee for TO INTERSTATE EMPLOYEES 141 service in interstate transportation equally within the scope of the federal power? The railroad moves interstate commerce, and its contract to move the commerce is within federal power when it contracts so to do with the passen- ger or the shipper. The employee moves inter- state commerce, and his contract to move the commerce is within federal power when he con- tracts so to do with the railroad. A contract to move commerce is commerce, whether made by a railroad with a shipper or by an employee with a railroad. If a contract to move commerce is not commerce, then the regu- lation of freight rates is beyond the scope of federal power. The occupation of the employees of an inter- state carrier is commerce. A regulation of that occupation is a regulation of commerce. State laws regulating commercial travelers have been declared void as regulating interstate commerce. Robbins v. Shelby County Taxing District, 120 U. S. 489, 7 Sup. Ct. Rep. 592; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1. The solicitation of orders from which com- merce arises, or the making of contracts out of which commerce arises, is itself commerce. The business of interstate carriers is commerce and may be regulated. The occupation of employees of such carriers is commerce and may be regulated. 142 LIABILITY OF RAILROADS The contract in each case is a contract to move commerce, and all contracts in aid of the move- ment of commerce are within the congressional power of regulation. The train crew actually moves commerce. The telegraph operator, the bridge repairer, the switchman, and the yardman all assist in the movement of commerce, and that directly. It seems to be clear from the opinion of Mr. Justice Brewer in Chicago, R. I. & P. R. Co. v. Stahley, 62 Fed. Rep. 363, that roundhouse em- ployees putting a recently arrived engine in condition for immediate use and the work of track repairers "was work directly related to the move- ment of trains." Work directly related to the movement of trains when these trains are inter- state must necessarily be work directly related to the movement of interstate commerce and within the scope of federal power. § 40. It Furthers a Free Flow of Commerce by Promoting Industrial Peace. The regulation of master and servant as laid down in the Employers' Liability Act may be supported as a regulation of commerce: Because such regulation has such large re- lation to the promotion of industrial peace, and removes a potent cause of strife and strike which impedes a free flow of commerce between the TO INTERSTATE EMPLOYEES 143 States. Such regulation is a correlative to the power asserted in the Debs Case, 158 U. S. 564, to exist in the national government to put down disorderly railroad strikes by force of arms. May not Congress, by well-considered legislation, re- move the causes of industrial disturbance and prevent impediments to the movement of inter- state commerce without resorting to the national forces after disorder has become manifest? The federal power of coercive action upon the subject of disorders growing out of industrial disputes be- tween carriers and employees engaged in interstate commerce being admitted, In re Debs, 158 U. S. 564, 15 Sup. Ct. Rep. 900, it naturally follows that legislation in redress of grievances and in preven- tion of strife and disorder tending prejudicially to affect the movement of interstate commerce may be enacted by Congress according to its view of the public policy involved. The establishment of a legislative policy of justice to the men engaged in interstate railroad- ing may be the highest statesmanship in the regu- lation of interstate commerce. It is wiser to permit freedom to the legislative power to establish just relations by law, rather than call upon courts and troops after conditions have become acute. As the Supreme Court of West Virginia in sustaining the constitutionality of the Scrip Act, prohibiting laborers' wages being paid in other 144 LIABILITY OF RAILROADS than lawful money, Peel Splint Coal Co. v. State, 15 S. E. Rep. 1000, 1006, said: "Collisions be- tween capitalists and the workmen endangering the safety of the State stay the wheels of commerce, discourage manufacturing enterprise, destroy public confidence, and at times throw an idle population upon the bosom of the community. Surely the hands of the legislature cannot be so restricted as to prohibit the passage of laws directly intended to prevent and forestall such collisions." § 41. Employees are Instrumentalities of Interstate Commerce. The regulation of master and servant as laid down in the Employers' Liability Act may be supported as a regulation of commerce: Because employees are instrumentalities of interstate commerce and come within the well- known rule that Congress has the power to reg- ulate such instrumentalities. As Mr. Justice Johnson said in his concurring opinion in Gibbons v. Ogdeh, 9 Wheat. 1,230: ". . . The subject, the vehicle, the agent, and their various operations be- come the objects of commercial regulation. Ship- building, the carrying trade, and propagation of seamen are such vital agents of commercial pros- perity that the nation which could not legislate over these subjects would not possess power to regulate commerce. ..." TO INTERSTATE EMPLOYEES 145 In Northern Securities Co. v. United States, 193 U. S. 197, 24 Sup. Ct. Rep. 436, Mr. Justice Harlan, delivering the opinion of the court, said: "Whilst every instrumentality of domestic com- merce is subject to state control, every instru- mentality of interstate commerce may be reached and controlled by national authority, so far as to compel it to respect the rules for such com- merce lawfully established by Congress. No corporate person can excuse a departure or vio- lation of that rule under the plea that that which it has done or omitted to do is permitted or not forbidden by the State under whose au- thority it came into existence. ... So long as Congress keeps within the limits of its authority as defined by the Constitution, infringing no rights recognized secure by that instrument, its regulation of interstate and international com- merce, whether founded in wisdom or not, must be submitted to by all." In the case of Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 203, 5 Sup. Ct. Rep. 826, Mr. Justice Field said: "The power [to regulate com- merce] also embraces within its control all the instrumentalities by which that commerce may be carried on and the means by which it may be aided and encouraged. The subjects, therefore, upon which the power may be exerted are of in- finite variety. While with reference to some of 140 LIABILITY OF RAILROADS them which are local and limited in their nature or sphere of operation, the States may prescribe regulations until Congress intervenes and assumes control of them; yet when they are national in their character and require uniformity of regula- tion affecting alike all the States the power of Congress is exclusive." In United States v. Freight Association, 166 U. S. 290, 312, 17 Sup. Ct. Rep. 540, the Court said : "Railroad companies are instruments of com- merce and their business is commerce itself. State Freight Tax Case, 15 Wall. 232, 275; Telegraph Co. v. Texas, 105 U. S. 460, 464." § 42. Relations between Company and Em- ployee are not Local. The regulation of master and servant as laid down in the Employers' Liability Act may be supported as a regulation of commerce: Because federal judicial power has been as- serted by the Supreme Court over the subject- matter of the relations of master and servant upon the express ground that "it is obvious that the relations between the company and employee are not in any sense of the term local in character. , . . Further than that, it is a question in which the nation as a whole is interested. It enters into the commerce of the country. Commerce between the States is a matter of national regu- TO INTERSTATE EMPLOYEES 147 lation, and to establish it as such was one of the principal causes which led to the adoption of our Constitution." Baltimore and 0. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. Rep. 914. § 43. Human Agency is most Important Fac- tor in Movement of Commerce. The regulation of master and servant as laid down in the Employers' Liability Act may be supported as a regulation of commerce: Because the power to regulate commerce among the States confers full, complete, and paramount authority on Congress to establish rules of con- duct for such commerce, including rules govern- ing and protecting the human agency involved in such commerce, which is by far the most im- portant factor involved therein. Congress is not confined to the mere establish- ment of rules as to the property involved in such commerce, but may without question establish rules of conduct for the protection and safety of human life involved. This power has been exercised under the com- merce clause with the purpose of conserving human life in the regulation of pilots and pilotage. The Court in Cooley v. Port Wardens, 12 How. 299, speaking of the power of Congress over pilotage under the commerce clause, said: "It extends to 148 LIABILITY OF RAILROADS the persons who conduct it as well as to the in- struments used." Again, in Sherlock v. Ailing, 93 U. S. 99, Mr. Justice Field said of the commerce clause: "It is true that the commercial power conferred by the Constitution is one without limitation. It au- thorizes legislation with respect to all the subjects of foreign and interstate commerce, the persons engaged in it, and the instruments by which it is carried on. And legislation has largely dealt, so far as commerce by water is concerned, with the instruments of that commerce. It has embraced the whole subject of navigation, prescribed what shall constitute American vessels and by whom they shall be navigated; how they shall be regis- tered, or enrolled and licensed; . . . Since steam has been applied to the propulsion of vessels, legis- lation has embraced an infinite variety of further details, to guard against accident and consequent loss of life. "The power to prescribe these and similar regu- lations necessarily involves the right to declare the liability which shall follow their infraction. What- ever, therefore, Congress determines, either as to a regulation or the liability for its infringement, is exclusive of state authority." Congress has full sovereignty over interstate commerce. In the exercise of that sovereignty, effective regulations may be made to cover every TO INTERSTATE EMPLOYEES 149 aspect which has direct relation to such commerce. Its regulations are not confined to the inanimate factors or instrumentalities in the commerce over which it has control. Examples of this legislation may be found in those federal statutes enacted to "provide for the safety of crew and passengers by prescribing rules concerning boilers, engines, medicines, bulk, ventilation, and the like; also the number of the crew, or form and nature of their contract of hiring, their rights as against masters and owners; the powers of officers, etc. The number of such statutes is great and their par- ticular objects are numerous. . . . No one has as yet questioned the authority of Congress to enact such laws." Pomeroy's Constitutional Law, § 381. Story on the Constitution, § 1062, says: "If commerce does not include navigation, the gov- ernment of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or re- quiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government; it has been exercised with the consent of all America, and it has been always understood to be a commercial regulation. The power over navigation and over commercial intercourse was one of the primary objects for which the people of America adopted their government, and it is impossible that the 150 LIABILITY OF RAILROADS Convention should not have so understood the word 'commerce' as embracing it. Indeed, to construe the power so as to impair its efficacy would defeat the very object for which it was introduced into the Constitution; for there cannot be a doubt, that to exclude navigation and inter- course from its scope would be to entail upon us all the prominent defects of the confederation and subject the Union to the ill-adjusted systems of rival States, and the oppressive preferences of foreign nations in favor of their own navigation." In the Lottery Cases, 188 U. S. 321, 356, 23 Sup. Ct. Rep. 321, Mr. Justice Harlan says: "In this connection it must not be forgotten that the power of Congress to regulate commerce among the States is plenary, is complete in itself, and is subject to no limitation except such as may be found in the Constitution." The extent of this power of regulation may be seen from the statement of Mr. Justice Clifford in the Bred Scott Case, 19 Howard, 393, 614: "But it may be mentioned, in passing, that under this power to regulate commerce Congress has enacted a great system of municipal laws and extended it over the vessels and crews of the United States on the high seas and in foreign ports, even over citi- zens of the United States resident in China, and has established judicatures, with power to inflict even capital punishment within that country." TO INTERSTATE EMPLOYEES 151 The fullness of congressional power over inter- state commerce may be realized from an exami- nation of the statutes in the exercise of the com- merce power over maritime commerce which have been practically unchallenged from the earliest days of the Republic. The power to regulate interstate commerce is as full and ample as the power of regulation of foreign commerce. Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091; Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465, 8 Sup. Ct. Rep. 689, 1062; Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. Rep. 851; Pittsburg & S. Coal Co. v. Bates, 156 U. S. 577, 15 Sup. Ct. Rep. 415; Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. Rep. 40. And, as Judge Trieber said in the case of Watson v. St. Louis, I. M. & S. Ry. Co., 169 Fed. Rep. 942: ". . . it is now well settled that the power of Congress under the commerce clause is as complete upon the land [as upon the navigable waters of the United States]." In re Debs, 158 U. S. 564, 15 Sup. Ct. Rep. 900; United States v. Colorado & N. W. R. Co., 157 Fed. Rep. 343. See also Lancer v. Anchor Line, 155 Fed. Rep. 433. In the case of Spain v. St. Louis & S. F. R. Co., 151 Fed. Rep. 522, 527, Judge Trieber said: "The expression of the court that contracts with sailors 152 LIABILITY OF RAILROADS for their services are exceptional in their character and may be subjected to special restrictions for the purpose of securing full and safe carrying on of commerce on the water must be understood to refer solely to the propriety of the legislation and not the power, for no one will contend now that the commerce clause of the Constitution grants greater power to Congress over the com- merce carried on by water than that transported by land." It has been settled, since Gibbons v. Ogden, 9 Wheat. 1, that the power to regulate commerce among the several States is granted to Congress in terms as absolute as the power to regulate com- merce with foreign nations. The power to regulate commerce among the several States is vested in " Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. . . . "It has truly been said, that commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term. "If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there is some plain intelligi- ble cause which alters it." TO INTERSTATE EMPLOYEES 153 Of the word " commerce" Chief Justice Mar- shall, in the same case, at page 193, said: "The word used in the Constitution, then, compre- hends, and has always been understood to com- prehend, navigation within its meaning; and a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.'" In interstate commerce on the land, railroading is in all its constitutional aspects the same as navigation of the sea. The whole business and occupation of interstate railroading is within the congressional power of regulation. As Mr. Justice Brewer said, in In re Debs, 158 U. S. 564, 590, 15 Sup. Ct. Rep. 900: "Up to a recent date commerce, both interstate and inter- national, was mainly by water, and it is not strange that both the legislation of Congress and the cases in the courts have been principally con- cerned therewith. The fact that in recent years interstate commerce has come mainly to be carried on by railroads and over artificial highways has in no manner narrowed the scope of the constitu- tional provision, or abridged the power of Congress over such commerce. On the contrary, the same fullness of control exists in the one case as in the other, and the same power to remove obstructions from the one as from the other. 154 LIABILITY OF RAILROADS "Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad train and the steamship. Just so is it with the grant to the national government of power over interstate commerce. The Constitu- tion has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop." In the fullness of its power and authority over commerce, Congress may regulate a carrier or any of its instrumentalities on sea or land; may regu- late vessels, railroads, pilotage, locomotives, cars, and trains; may regulate the liabilities of ship- owners to shippers, and to seamen; may regulate the contract of employment of seamen; may regu- late freight rates, car distribution, combinations of carriers in restraint of trade; may prohibit the transportation of commodities in the sale of which the carrier has direct interest; and generally may determine the policy and conditions under which TO INTERSTATE EMPLOYEES 155 carriers shall conduct the business of interstate or foreign commerce. Therefore, there is no limi- tation of the power which excludes the regulation of the relation of master and servant when such regulation is found by Congress to be good public policy in the enactment of legislation under the commerce clause. The regulation of this relation, covering as it does the rights and duties and obli- gations and remedies of more than a million men engaged in the movement of interstate traffic, may be most important and salutary in its effect upon the free and unrestricted movement of commerce between the States. In many aspects labor is the most important factor in the movement of inter- state commerce, and if legislation upon the rights, remedies, and obligations of the employees is be- yond the power of Congress a vital factor in the movement of interstate commerce will be ex- cluded from legislative control. Unless a corporation employs servants it can- not act. The human element is the vital ele- ment in its operation. A railroad corporation itself cannot move com- merce. It can only move commerce through the employment of agents and instrumentalities. The employment, therefore, is an essential to any move- ment of commerce. The regulation of the employ- ment, that is, the regulation of the contract of the only railroad agents who can make the movement 156 LIABILITY OF RAILROADS of commerce possible, is a regulation of commerce, for the reason that an employment contract is a condition precedent to any movement of com- merce by a corporation. To assume the right of Congress to regulate the corporation itself, which has only a formal exist- ence as a legal entity, because such corporation is engaged in commerce and to deny to it the regula- tion of the human agencies who actually move the commerce seems highly technical and illogical. Unless Congress has full power to regulate all who engage in commerce, in any capacity, whether as agents, directors, or employees, the field of its power of regulation is restricted and the effective- ness of its full control over the subject-matter of commerce is impaired. TO INTERSTATE EMPLOYEES 157 CHAPTER X THE EMPLOYERS' LIABILITY ACT DOES NOT UN- duly abridge, the freedom of contract § 44. The Contention of the Railroad Counsel. It is objected by representatives of the rail- roads that the Employers' Liability Act is in- valid for the reason that it is in violation of the Fifth Amendment to the Constitution of the United States. The Act, they say, is an inva- sion of the "freedom of contract" which is guar- anteed as liberty and property by the Fifth Amendment. Their contention on this point is sustained by the Supreme Court of Errors of Connecticut in its opinion in the case of Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352. The declaration of the court in the Hoxie case is as follows: "It denies them [employees] one and all that liberty of contract which the Consti- tution of the United States secures to every person within their jurisdiction." With due deference to the learning and ability of the counsel who made this contention and to the high standing of the court which sustained it, it is submitted that their position on this aspect 158 LIABILITY OF RAILROADS • of the controversy is untenable. There are some conclusive reasons why their position cannot be sustained. § 45. No Limitation upon Power of Con- gress to Restrict the Exercise of the Right of Contract. No restriction is made in the Constitution which, when necessary to the exercise of its express powers, prohibits Congress from impairing the obli- gation of an executed contract, and therefore there is no limitation of its power to restrict the exercise of the right of contract. — If Congress may impair the obligation of a completed contract, it would be a strange anomaly which would exclude from its power the right of interference with an in- choate contract, or the option, right or liberty to make a contract. When an actual existent contract may be an- nulled by an act of Congress when its obligations come in conflict with the congressional enactment in the exercise of some express power of the Con- stitution, it seems to be a matter of grave doubt if the theoretical right of contract will be held to be a barrier to the exercise of congressional power which is otherwise constitutional. Constitutional prohibition against impairing the obligation of contracts is a prohibition upon the legislatures of the States and not upon Congress. TO INTERSTATE EMPLOYEES 159 In Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. Rep. 170, 312, Mr. Justice Miller, delivering the opinion of the court, said: "It is no answer to say that it interferes with the validity of con- tracts, for no provision of the Constitution pro- hibits Congress from doing this as it does the States; and where the question of the power of Congress arises, as in the legal tender cases and in the bankruptcy cases, it does not depend upon the incidental effect of its exercise on con- tracts, but on the existence of the power itself." Other cases which seem also to point to the same conclusion are Saterlee v. Matthewson, 2 Peters, 380; Legal Tender Cases, 12 Wall. 457, 550. It would seem, therefore, to be reasonably con- clusive that the Constitution vests in Congress full sovereignty over any subject within its ex- press powers, unlimited by the restraint which is upon the States, to impair the obligation of con- tracts, and that, therefore, the contention that an act of Congress invades the liberty of contract of an individual is no constitutional barrier to the exercise of legislation by Congress, which is other- wise constitutional. Where Congress is clothed with power by any of the express provisions of the Constitution, its ample sovereign power over the subject-matter may not be limited or restricted by the citizen's private right of contract. The powers conferred 160 LIABILITY OF RAILROADS upon Congress are of too serious and grave im- portance to be subject to the exercise of a right of contract at the will of the citizen which would operate to the nullification of national power. This was made so clear and conclusive by the decision of the Supreme Court in the Legal Tender Cases, 12 Wall. 457, 551, that the following quo- tation from the opinion therein would seem to settle the controversy upon this aspect of the question: "But, as already intimated, the objec- tion misapprehends the nature and extent of the contract obligation spoken of in the Constitu- tion. As in a state of civil society, the property of a citizen or subject is ownership, subject to the lawful demands of the sovereign, so contracts must be understood as made in reference to the possible exercise of the rightful authority of the government and no obligation or contract can extend to the defeat of legitimate government authority." § 46. Theoretical Freedom of Contract is sometimes against public policy. Theoretical freedom of contract may be impaired by legislation where the parties do not stand on an equal footing, in order to prevent the exer- cise of power of one over another, to coerce the ac- ceptance of onerous terms against the will and contrary to the real wishes of the other, or when TO INTERSTATE EMPLOYEES 161 any public interest or public policy is prejudicially affected by such exercise of power. 1 — In H olden v. Hardy, 169 U. S. 366, 18 Sup. Ct. Rep. 383, the Supreme Court said: "The legislature has also recognized the fact, which the experience of legislators in many of the States has corroborated, that the proprietors of these establishments and their operatives do not stand on an equality and that their interests are, to a certain extent, con- flicting. ... In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self- interest is often an unsafe guide, and the legisla- ture may properly interpose its authority. . . . But the fact that both parties are of full age and competent to contract does not necessarily de- 1 In the recent case of Poll v. Numa Block Coal Company (Supreme Court of Iowa), 127 N. W. Rep. 1105, Judge Weaver, delivering the opinion of the court, said: "Notwithstanding the absolute liberty with which every individual legally endowed to enter into contract for his personal labor or service and his equal legal right to abandon such service at any time subject only to liability for damages in case such act be not justified, it is nevertheless true in practical life that poverty, scarcity of employment, dependent family, and other circum- etances often impose moral compulsion upon the laborer to accept employment upon such terms and under such conditions as are offered him, and it is in recognition of this fact, as well as the further facts, that society has a direct interest in preserving the lives and promoting the well-being of all persons engaged in productive industry, that laws have been enacted to protect them against unnecessary hazard of injury by failure of employers to exercise proper care for their safety." 162 LIABILITY OF RAILROADS prive the State of the power to interfere when the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself." In Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. Rep. 427, the Court said: ". . . It may be conceded that this right to contract in relation to persons or property, or to do business within the jurisdiction of the State, may be regulated and sometimes prohibited when the contracts or business conflict with the policy of the State as contained in the statutes." That this inequality of standing of the parties is a basis for legislative interference with " free- dom of contract" is recognized by the Supreme Court in the case of Schlemmer v. Buffalo, Ro- chester & Pittsburgh Ry. Co., 205 U. S. 1, 27 Sup. Ct. Rep. 407, in the opinion of Mr. Justice Holmes, where he said, speaking of a statute which has marked features of resemblance to the statute here under consideration: "Probably the modifi- cation of this general principle by some judicial decisions and by statutes like section 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist." And Mr. Justice Bradley, in New York Central R. Co. v. Lockwood, 17 Wall. 357, justified a TO INTERSTATE EMPLOYEES 163 legislative invasion of the "freedom of contract" between carriers and their shippers upon the ground of the inequality of standing of the parties, and said: "The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to haggle or stand out and seek redress in the courts. His business will not admit such a course. He prefers, . rather, to accept any bill of lading or sign any paper the carrier presents; often, indeed, without knowing what the one or the other con- tains. In most cases he has no alternative but to do this or abandon his business. ... If the customer had any real freedom of choice, if he had any reasonable or practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodat- ing the public in the line of his employment, then, if the customer chose to assume the risk of negli- gence, it could with more reason be said to be his private affair and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrier in trade has assumed. The busi- ness is almost concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which 164 LIABILITY OF RAILROADS the public is compelled to accept. These circum- stances furnish an additional argument, if any were needed, to show that the conditions imposed by common carriers ought not to be adverse (to say the least) to the dictates of public policy and morality." Mr. Justice Stafford, in the case of Potter v. Baltimore & Ohio R. Co., 37 Washington Law Reporter, 466, well stated the test as to the bear- ing of this question of " freedom of contract" upon the validity of this legislation when he said: "The real heart of the question is whether the circumstances and situation are such that the law- making body has a right to say that the contract is made between parties, one of whom has pre- sumably an undue advantage over the other." And the same judge, in the case of Goldenstein v. Baltimore & Ohio R. Co., 37 Washington Law Reporter, 2, said: "The theory of the statute seems to be that during the period when the re- lation of employer and employee exists or is in contemplation, the parties do not stand on a level, but that the employee or person applying for employment is subject to the undue influence of the employer, as the borrower is supposed to be under the like power of the lender in the matter of interest." The real test is happily suggested by Professor Richard T. Ely in his " Outlines of Economics " TO INTERSTATE EMPLOYEES 165 as follows: "True liberty is not simply the per- mission but the power to act freely." In Narramore v. Cleveland, C, C. & St. L. Ry. Co., 96 Fed. Rep. 298, 302, the Court said, speaking through Judge Taft: " The only ground for passing such a statute is found in the in- equality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown him- self capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant 'to contract the master out' of the statute." In this same case Judge Taft quotes the case of Baddeley v. Granville, 19 Q. B. Div. 423, in which the English court says, at page 426: "An obligation imposed by statute ought to be capable of enforcement with respect to all future dealings between parties affected by it. As to the result of past breaches of the obligation, people may come to what agreements they like, but as to future breaches of it there ought to be no encouragement given to the making of an agree- ment between A and B, that B shall be at lib- erty to break the law which has been passed for the protection of A. If the supposed agreement come to this : that the master employs the servant on the terms that the latter shall waive the breach 166 LIABILITY OF RAILROADS by the master of an obligation imposed on him for the benefit of others as well as of himself, such an agreement would be in violation of public policy, and ought not to be listened to." § 47. Liberty of Contract is merely a Common-Law Right. Liberty of contract is not a right guaranteed by the Constitution and is not a vested right, but is, if not a mere economic right, merely a common-law right, which may be affected by the normal exercise of legislative power in the public interest. — "Lib- erty of contract" is a misnomer. Contract is ob- ligation. By every contract there is a subtraction from liberty. "Liberty to contract" would be a more accu- rate expression of the meaning of those who use the term "liberty of contract." There is much confusion in the use of this term. "Liberty of contract" is called property. If it is liberty, it is not property. Liberty implies volition, which cannot be predicated of property. If it is property, it is not liberty. It may be doubted if the right known as "lib- erty of contract" is more than an economic right, which has its place and weight in argument upon questions of legislative policy. But it is not a fixed and determined constitutional right, which no power of legislation can invade or impair. TO INTERSTATE EMPLOYEES 167 Congress is not even bound by the restriction upon the States forbidding the impairment of the obligation of actual contracts. Can it be that the right to contract is more sacred than the rights growing out of an existent contract which Con- gress in the exercise of its powers to regulate commerce may invade? Is the right to contract property? The right to contract is a right which exists before the con- summation of a contract. It is not a right to a contract. It is the mere option of one party to negotiate a contract with another, if that other is willing to contract. It is abstract and not concrete. The right to contract is not a right in or to any particular contract, and cannot be a property right, because its possessor as such has no interest or right in or to any specific contract, or in or to any particular or defined property. It is too vague and intangible, and is, as the Supreme Court of Massachusetts said of " profits," "more uncertain in its vicissitudes than the rights which the Con- stitution undertakes absolutely to protect." Saw- yer v. Commonwealth, 182 Mass. 245. The right to contract vests no right in any con- tract or to any contract. It is inchoate and in- determinate, and has no relation in itself to any particular contract, to any contract with any par- ticular individual, and has no relation or applica- 108 LIABILITY OF RAILROADS tion to any particular property or even to any specific cause of action. It lacks every element of property. This was clearly indicated by the declaration in the majority opinion in the Slaughter-House Cases, 16 Wall. 36, 80: "And it is sufficient to say that under no con- struction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exer- cise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision." And that the antici- pated profits from a future or prospective con- tract cannot be deemed property seems to be indicated in the opinion in Munn v. People, 69 111. 80, 91: " Anticipated profits are not and cannot be held and regarded as property in the ownership or possession of him who owns the article out of which profits are expected to flow. The property is one thing, and remains untouched — the profits are not in esse and cannot be claimed as property. When it is said one is deprived of his property, the understanding is it has been taken away from him — he is divested of title and possession." The right to contract may be properly re- garded as no more than a part of the abstract economic liberty of action of the individual which under all sj'stcms of government may be TO INTERSTATE EMPLOYEES 169 controlled by legislation. It is of the same quality as the freedom to trade, which the commercial power may regulate and restrain. It is like the freedom to eat and drink, which food laws and other statutory regulations may reach and con- trol where the safety of the public so requires. Sumptuary legislation impairing the freedom of the individual to buy and sell at his pleasure has long been sustained, and it never has been suc- cessfully contended that the right to buy, the freedom to contract, was any impairment of the constitutionality of such legislation. The right to buy labor is no more sacred than the right to buy property. The right to buy prop- erty, when any large public interest is involved and governmental authority exists otherwise over the subject-matter, may be legislatively regulated without invasion of the liberty and property clause of the Fifth Amendment. The right to contract is not so direct and spe- cific a right as the right of an owner to build upon his own land. The latter is properly termed a property right, because it inheres to specific prop- erty. Yet where public interests are involved, as, for example, the public health or safety from fire menace, the most stringent governmental regula- tions are permissible even with summary provi- sions for enforcement. These laws stand on a basis of authorized legislative power, and there- 170 LIABILITY OF RAILROADS fore the provisions of the Fifth Amendment do not reach them. No greater force and efficacy can be judicially attributed to the inchoate right to employ such labor as is willing to be employed than to the right of an owner to build on his own property. This seems to be clearly indicated by an illustration used by Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 1, at page 208: "A State, it is said, or even a private citizen, may con- struct lighthouses. But gentlemen must be aware that if this proves a power in a State to regu- late commerce, it proves that the same power is in the citizen. States, or individuals who own lands, may, if not forbidden by law, erect on those lands what buildings they please; but this power is entirely distinct from that of regu- lating commerce, and may, we presume, be re- strained, if exercised so as to produce a public mischief." If an owner of real estate may be "restrained" under the commerce power, it does not seem as if that power were inefficacious when it comes in conflict with the inchoate right of an individual to make any indefinite contract for labor he may be able to make, if he chooses to make it. But if "freedom to contract" is either liberty or property, or both, it may be affected by legis- lation, if due process is provided in the Act. And TO INTERSTATE EMPLOYEES 171 as the Act now under discussion provides for "due process," a regular hearing before a judicial tribunal, a trial by jury and all the formalities of "due process," the provisions of the Act are unaffected by the "due process" provision of the Fifth Amendment. No shipper of freight can assert a "freedom of contract" as a ground of the free exercise of his will concurrently with that of the managers of a railroad to fix freight rates regardless of the power to regulate commerce. New York Central R. Co. v. Lockwood, 17 Wall. 357. If "freedom of contract" is non-existent where a rate contract to move freight is in question, if the Fifth Amendment has no effect in such case, how can it be asserted where a labor contract to move traffic is in question? In the above query it is of course assumed that in each case the legislative regulation is otherwise a reasonable exercise of the power existing under the commerce clause. "Freedom of contract" is not a constitutional right. It is a matter of extreme doubt if anything more can be claimed for the right to contract than that it is a common-law right conferring upon the individual liberty of action which cannot be taken away except by some law passed in due conformity to the due process provision of the Constitution. If it is a mere common-law right, 172 LIABILITY OF RAILROADS it is not a vested right. There is no vested right in a rule of the common law, as was determined by the Supreme Court in Munn v. Illinois, 94 XJ. S. 113. At page 134 the Court said: "A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away with- out due process; but the law itself, as a rule of conduct, may be changed at will, even at the whim of the legislature, unless prevented by constitu- tional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed and to adapt it to the changes of time and circumstances." In Bertholf v. O'Reilly, 74 N. Y. 509, 524, the Court said : ' ' The legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies, and fasten re- sponsibility for injuries upon persons against whom the common law gives no remedy. We do not mean that the legislature may impose upon one man liability for an injury with which he has no connection. But it may change the rule of the common law, which looks only to the proximate cause of the mischief in attaching legal responsi- bility and allow a recovery to be had against those whose acts contributed, although remotely, TO INTERSTATE- EMPLOYEES 173 to produce it. . . . It is an extension by the legislature of the principle expressed in the maxim ' Sic utere tuo ut alienum non Icedas ' to cases to which it had not before been applied, and the propriety of such application is a legislative and not a judicial question." Where large questions of social economy of the State are affected, the legislature in its sound dis- cretion may legislate according to its view of the public policy involved, unaffected and uncon- trolled by the common-law rights of the citizen, if the physical liberty of the citizen is not violated and no right of the citizen to any specific property, real or personal, is invaded. But legislation, if supported by express consti- tutional power otherwise, may authorize a viola- tion of the personal liberty of the citizen or an invasion of the right of private property, if com- pensation for the property "taken" is provided in the Act, and if "due process of law" is pro- vided in its execution. And no abstract, intangible right not connected with physical liberty and not specifically related to property, real or personal, can in any manner be an impediment to the power of legislation where the subject-matter of the legislation is otherwise within the constitutional power of the State or nation. An arrest is clearly within the scope of the 174 LIABILITY OF RAILROADS Fifth Amendment. Yet arrests are authorized without violation of the Fifth Amendment when- ever legislation otherwise constitutional authorizes arrest as a penalty for its violation. If the Fifth Amendment does not avail as a protection against the physical invasion of actual liberty, how una- vailing constitutionally must it be when only a theoretical and intangible right is involved, even though such right may be called a "right of property"? In Moyer v. Peabody, 212 U. S. 78, 84, 29 Sup. Ct. Rep. 235, Mr. Justice Holmes, delivering the opinion of the court, said: "But it is familiar that what is due process of law depends upon circum- stances. It varies with the subject-matter and the necessities of the situation. Thus, summary pro- ceedings suffice for taxes and executive decisions for exclusion from the country. Murray v. Ho- boken Land & Improvement Co., 18 How. 272; United States v. Ju Toy, 198 U. S. 253, 263, 25 Sup. Ct. Rep. 644. . . . When it comes to a de- cision by the head of the State upon a matter in- volving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substi- tution of executive process for judicial process." If this position of the court in the Moyer Case is tenable, may it not with much greater force be said in a case not involving the actual liberty of TO INTERSTATE EMPLOYEES 175 the person, as the Moyer Case did, but only in- volving an abstract theoretical right to freedom of contract, that when it comes to a decision by the nation through its legislative department, upon a matter involving the safety of human life, the ordinary right to be free to contract must yield to what the nation, through its legislature, deems the necessities of the situation? § 48. This Act Frees Employee from the Burden of an Onerous Legal Fiction. This particular legislation aims to permit the employee to sell his personal services to an inter- state railroad free from the extraneous and fictitious condition attached to every contract of employment by legal construction not assented to by the parties, that the workman shall assume the risk of the mani- fest perils of his employment and thus the Act in its primary provision permits a freedom from the oper- ation of an onerous legal fiction, and relieves from a contractual assumption never assented to by the employee. The injustice of the release of the em- ployer, under the rule of assumption of risk as ju- dicially established, having been made apparent to the legislature, it had the right to prohibit private contracts intended to continue the injustice which the law was enacted to terminate. — " Liberty of contract" is strangely out of place as an objec- tion to this particular legislation. This legisla- 176 LIABILITY OF RAILROADS tion aims to leave the employee free to sell his personal services to an interstate railroad with- out any conditions attached thereto by a fiction or construction of law. The employee never ex- pressly assumes the risk of the perils of the em- ployment, including the peril of injury by a fellow-servant. The assumption of this risk is a legal fiction arbitrarily placed upon his contract by the courts. Thus, if the objection arising under the doctrine of " freedom of contract" is effective for the destruction of this statute, the employee's freedom of contract is made to accom- plish the creation of an obligation contrary to his interests and against his wishes. Thus in the nameof "freedom of contract" he is compelled to work under the terms of a contract which he ex- pressly repudiates. To insist upon "freedom of contract," to prevent relief from the consequences of a contract never made by the railroad men, and existing only by a legal fiction, would be the con- summation of a great legal wrong. In the report of the English Parliamentary Committee, which reported the original Em- ployers' Liability Act of 1880, Mr. Lowe, the Chairman of the Committee, says: "The contract which the judges have assumed to be entered into by every operative, involving, as it does, the ces- sion of most important rights without any con- sideration, is utterly unknown by the person to TO INTERSTATE EMPLOYEES 177 be bound by it, and was, to its fullest extent, un- known to the judges themselves." Mr. Lowe characterizes the insertion of the assumption of risk into the contract of employment as "an ex- traordinary stretch of judicial legislation," and he says that it is to be regarded "with the utmost jealousy and dissatisfaction," as it alters the common law "not in any abstruse or remote point, but in a matter which most nearly concerns the interests of hundreds of thousands of Her Ma- jesty's subjects." In the same parliamentary re- port Justice Brett is quoted: "I say now that the law is that you cannot properly import any con- dition or stipulation into a contract except one which in the minds of all reasonable men must have been in the contemplation and intention of both parties to the contract at the time it was made." And yet it is soberly suggested that "freedom of contract" is a reasonable ground upon which to base the perpetuation of a contract never made by the workman and existing only by the requirement of the judges. It cannot be that the policy adopted by the courts to compel those who embark in perilous work to assume danger of death or injury from the fault of others can be forced perpetually upon the workmen against their wishes and against the legislation of Con- gress, intended to relieve them from its injustice, upon any ground which can properly be charac- 178 LIABILITY OF RAILROADS terized as freedom or liberty of any kind or name. When a railroad man engages to work as engi- neer or trainman, he is selling his services and no more. The company is buying his services and no more, but the common law has artificially affixed a condition to the contract of employment that when the employee sells his services he must risk life and limb if the manifest perils of the employment require it. By the contract of the parties, nothing passes from the employee but his services. The contract judicially superimposed upon the parties requires by implication the pass- ing to the employer of the right to conduct his business in a manner manifestly perilous to the employee, and without requital to kill or injure the employee by means of the manifestly perilous manner in which the business is conducted. It may be a harsh method of stating the doctrine as laid down by the courts at common law to say that when the workman undertakes to sell his services the court compels him to place his life or limb at the peril of the master's business, or to say that the sale of personal services in a contract of employment involves the sale of the life or limb of the employee if the manifest perils of the master's business require it. But that is a much more correct method of stating the effect of the judicial contract than the expression the common TO INTERSTATE EMPLOYEES 179 law used, that the employee voluntarily assumes the risk of the manifest perils of the business. And it is to be remembered that this artificial term of the contract judicially affixed thereto is one from which the servant can in no manner escape. Courts say he may leave the particular employ- ment if dangerous, but the same condition attaches in any employment in which he may engage. That the doctrine commonly called assumption of risk exists entirely by legal deduction and is at- tached to the contract of employment merely by artificial construction, attention is called to the statement of Lord Benholm in Gregory v. Hill, 1869, 8th Sc. Sess. Cas., 3d Series, p. 282: "I am free to admit that I think the explanation given of this limitation is a very unsatisfactory and ar- tificial one — a supposed contract between master and servant, that the latter should not claim damages in such a case. Can there be anything more artificial?" Hawkins, J., in Thrussell v. Handy side, L. R. 20 Q. B. D. 359, 364, said: "If the plaintiff could have gone away from the dangerous place with- out incurring the risk of losing his means of livelihood, the case might have been different; but he was obliged to be there. His poverty, not his will, consented to incurring danger." Cockburn, C. J., in Woodley v. Metropolitan District R. R. Co. (1877), L. R. 2 Exch. Div. 384, 180 LIABILITY OF RAILROADS at p. 389, said: "Morally speaking, those who employ men on dangerous work without doing all in their power to obviate the danger are highly reprehensible. . . . The workman who depends on his employment for the bread of himself and his family is thus tempted to incur risks to which, as a matter of humanity, he ought not to be exposed." For a court to insist upon the workman's "freedom of contract, " to force upon him a judi- cial contract which he repudiates, is illogical and manifestly unjust. It does not tend to promote popular respect for the courts to assign "freedom of contract" as a ground for the judi- cial compulsion of a contract never made by the parties and distinctly repudiated by one of the parties thereto. All intelligent men know that the "freedom of contract" here granted by this decision, to quote the words of a recent writer, "gives them [the workers] their precise opposites as ironic forms of personal lib- erty." As the writer just above quoted, George W. Alger, in "Moral Overstrain," 1906, at page 170, says: "The enormously increasing number of railroad accidents in this country, compared with other countries, has attracted much attention. The great number of deaths thus occasioned are of railway employees; but there are enough pas- sengers killed every year to make the legal status of the railway employee, as regards his right to TO INTERSTATE EMPLOYEES 181 safety while at work, important to the public, as well as to him and his fellows. The safety of the railroad employee is too closely bound to that of the passenger to be separated in the eyes of the law. When the collision comes, the engineer may die first, but the passengers are there in the cars right behind him. "These two illustrations might be multiplied, but further examples would add little. The workman does not want the vain liberty, so often declared to him by the courts, of throwing up his job and looking for another. He does not take kindly to the judicial affirmations to him of the right to be maimed without redress, or to be killed, by his employer's indifference to his safety. His grievance is not directly with the courts and law. The workman knows little about the law, and most of what he understands he does not like. He objects to the economics on which these kill- ing decrees are rendered against him. He does not call it economics, but at the bottom the real trouble from the workman's point of view is the blindness of the courts, which do not seem to notice or to understand the social and economic conditions under which he has to work. For the law still embodies in these decisions an outworn philosophy, the old laissez faire theory of extreme individualism. This theory resolutely closed its eyes to all common, obvious, social, and economic 182 LIABILITY OF RAILROADS distinctions between men, considered either as individuals or as classes, and with self-imposed blindness imagined rather than saw the servant and his master acting upon a plane of absolute and ideal equality in all matters touching their contractual relation; both were free and equal, and the proper function of government was to let them alone. If the servant was dissatisfied with the conditions of his employment; if the dangers created, not merely by the necessities of the work, but by the master's indifference to the safety of his men, were in the eyes of the latter too great to be endured with prudence, then, being under this theory a free 'agent' to go or stay, if he chose to stay, he must take the possible consequences of personal injury or death. "To the workingman of to-day this theory embodies the liberty of barbarism, — the ' free- dom' of the Stone Age. This freedom is to him not liberty, but injustice." The suggestion of " freedom of contract" for the railroad men in such a connection is as perilous to public interests and public policy as it is un- fair, unreasonable, and unjust in its consequence to the men involved. "Freedom of contract" is the basis of the denial of the right of the legislature to give relief. Courts cannot give the relief, because they are bound by the doctrine of stare decisis. TO INTERSTATE EMPLOYEES 183 Therefore the workmen are notified that no relief is open to them except by their own initiative. The workmen are ironically told that they are perfectly free, as superior men, to obtain a con- tract from their employer which no employer will grant, and which no employer in all economic his- tory ever granted. The workmen are told by the courts that they have "freedom of contract" to induce the em- ployer to voluntarily assume the burden of indus- trial accidents. No sane man can expect that employees will find any remedial results from this "freedom of contract" if the employee acts individually. If the million and a half railroad men are to continue employed as railroad men, this doctrine closes every door to compensation for injury. But if they act collectively and refuse to work until the objectionable term is removed from contracts of employment by express and formal renunciation by the employer of the provision the courts have attached to such contracts, then we have the exercise of the "freedom of contract" by the employee. This means a strike, and can mean nothing else. Assent to this doctrine by the courts would block every other avenue of relief. 184 LIABILITY OF RAILROADS § 49. This Doctrine has not Impaired Legis- lation Forbidding Contracts to Avoid the Consequences of Negligence in Handling Freight. The doctrine of liberty of contract has not been applicable to impair legislation forbidding carriers to contract to relieve themselves from the consequence of negligence of them or their agents where satisfaction for damage or delay to shipments of freight was the subject-matter of the contract and therefore it is not reasonable to suppose that it can be a barrier to legislation, the subject-matter of which is satisfaction for fatal or other injury to men. — From the cases of New York Central R. Co. v. Lockwood, 17 Wall. 357, and Baltimore & Ohio S. W. R. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. Rep. 385, and cases cited, it is clear that carriers by railroad are not per- mitted to relieve themselves from liability for negligence of their servants or agents resulting in loss or damage to shippers or injuries to pas- sengers. This rule has been judicially established in its application to shippers and passengers. Can it be possible that there is not legislative power to make similar limitation upon the right to contract in cases which involve injuries to men employed by railroads? The whole subject seems to be disposed of by Mr. Justice Peckham in the case of the Addyston Pipe & Steel Co. v. United TO INTERSTATE EMPLOYEES 185 States, 175 U. S. 211, 20 Sup. Ct. Rep. 96, for reasons which seem to be satisfactory and con- clusive, when he says: " Regulation to any sub- stantial extent, of such a subject by any other power than that of Congress, after Congress has itself acted thereon, even though such regulation is effected by means of private contracts between individuals or corporations, is illegal, and we are unaware of any reason why it is not as objection- able when attempted by individuals as by the State itself. In both cases it is an attempt to regulate a subject which, for the purpose of regu- lation, has been . . . exclusively granted to Con- gress, and it is essential to the proper execution of that power that Congress should have juris- diction as much in the one case as in the other.' ' § 50. This Doctrine cannot Impair an Ex- press Legislative Power. Where express power exists over any subject- matter, the exercise of legislative power upon that subject is not impaired by the freedom of contract of the individual. — If legislative power otherwise ex- ists over the subject-matter of legislation, there is no constitutional " liberty of contract" standing in the way of its exercise. If legislative power does not exist over the subject-matter, legislation is invalid without the invocation of a constitutional "liberty of contract." So validity of legislation 186 LIABILITY OF RAILROADS in no manner depends upon liberty of contract. Any statute otherwise valid is not void because it impairs ''liberty of contract." Cases in which this right of "liberty of contract" have been dis- cussed were cases not supported otherwise by valid legislative power. For example, in Adair v. United States, 208 U. S. 161, 28 Sup. Ct. Rep. 277, the court held that there was "no such connec- tion between interstate commerce and membership in a labor organization as to authorize Congress to make it a crime against the United States for an agent of an interstate carrier to discharge an employee because of such membership on his part." Having thus determined that the legisla- tion under discussion in the Adair Case was not a valid exercise of power under the commerce clause, there seems to have been little relevancy in the discussion indulged in upon the question of "liberty of contract." If the Act was not a regulation of commerce, it was beyond the power of Congress. Also, in the case of Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. Rep. 539, the legislation then before the court fixing the hours of labor for bakers in New York was declared to be uncon- stitutional because it was not a valid health regulation and had no other basis in any rec- ognized power of government. It would seem, therefore, that no invocation of the doctrine of TO INTERSTATE EMPLOYEES 187 "liberty of contract" was essential to the decision of the case, and that health, safety, commerce, and revenue laws, and statutes of frauds are valid without reference to "liberty of contract." Valid regulations of commerce are not af- fected by this doctrine. United States v. Joint Traffic Association, 171 U. S. 505, 573, 19 Sup. Ct. Rep. 25, Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228, 229, 20 Sup. Ct. Rep. 96; New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 26 Sup. Ct. Rep. 272; Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. Rep. 428. See also article by Richard Olney, 42nd American Law Review, 161. In the case of Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 20 Sup. Ct. Rep. 96, the Court unanimously said: "But it has never been, and in our opinion ought not to be, held that the word [liberty] included the right of an individual to enter into private con- tracts upon all subjects, no matter what their nature, and wholly irrespective (among other things) of the fact that they would, if performed, result in the regulation of interstate commerce and in the violation of an Act of Congress upon that subject. The provision in the Constitution does not, as we believe, exclude Congress from legislating with regard to contracts of the above 188 LIABILITY OF RAILROADS nature while in the exercise of its constitutional right to regulate commerce among the States. On the contrary, we think the provision regard- ing the liberty of the citizen is, to some extent, limited by the commerce clause of the Constitu- tion, and that the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and sub- stantially, and not merely indirectly, remotely, incidentally, and collaterally, regulate to a greater or less degree commerce among the States." In Patterson v. Kentucky, 97 U. S. 501, the court said: "It [the court] has, nevertheless, with marked distinctness and uniformity, recognized the necessity growing out of the fundamental conditions of civil society, of upholding state police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health, and property which each State owes to her citizens." Legislation within the limits of the powers of government to protect the safety, health, peace, good order, and morals of the community, and which is in each case a legitimate and normal ex- ercise of the power to protect the community in such respects, is not at all vitiated by any pri- vate right of contract. Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. Rep. 13; Patterson v. Ken- TO INTERSTATE EMPLOYEES 189 tucky, 97 U. S. 501; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357; Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. Rep. 383; St. Louis, I. M. & St. P. R. Co. v. Paul, 173 U. S. 404, 19 Sup. Ct. Rep. 419; Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. Rep. 1; Jacobson v. Massa- chusetts, 197 U. S. 11, 25 Sup. Ct. Rep. 358. See also, as to validity of legislation under express legislative power which invades the private right of contract, Union Pacific Ry. Co. v. Goodridge, 149 U. S. 680, 13 Sup. Ct. Rep. 970; Frisbie v. United States, 157 U. S. 160, 15 Sup. Ct. Rep. 586. That legislation may restrain, regulate, and control those engaged in a particular occupation, in the exercise of that occupation, seems to be clearly and indubitably established by the majority opinion in the Slaughter-House Cases, 16 Wall., at page 80: "The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the Fifth Amendment, as a re- straint upon the federal power. It is also to be found in some form of expression in the constitu- tions of nearly all the States, as a restraint upon the power of the States. This law, then, has practically been the same as it now is during the 190 LIABILITY OF RAILROADS existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal Government." This strong statement of the majority of the court is emphasized by the fact that the minority opinions in the same case urged the doctrine now sought to be engrafted upon our Constitution. Mr. Justice Field, page 106, cited from a Circuit Court decision, Live Stock Association v. Crescent City Co., 1 Abbott's U. S. Rep. 399: "There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner." Mr. Justice Bradley, page 116, said: "A calling, when chosen, is a man's property and right." Mr. Justice Swayne, page 127, said: "Labor is property, and as such merits protection. The right to make it available is next in importance to the rights to life and liberty." It may be remarked in passing, as bearing upon the validity of the Employers' Liability Act, which confers a right to his life upon the railroad employee, that the remark just quoted from Mr. Justice Swayne follows his declaration that "life is the gift of God, and the right to preserve it is the most sacred of the rights of man." The right of a citizen to contract, or his liberty and freedom to contract, is not superior to the rights and powers of a State. And yet even TO INTERSTATE EMPLOYEES 191 though legislative power over a subject-matter is within the reserve powers of the State or within the police power of the State, that does not im- pair the paramount right of Congress to act upon that subject-matter in the execution of any of the powers delegated to Congress by the Con- stitution of the United States. As was said by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 210, 211: "The nullity of any Act inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the state legislatures as do not transcend their powers, but, though enacted in the execu- tion of acknowledged state powers, interfere with or are contrary to the laws of Congress made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case the Act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not con- troverted, must yield to it." Like the rights of States, the rights of citizens are controlled, impaired, and governed by legis- lation of Congress when such legislation is within the express or implied powers conferred by the Constitution. 192 LIABILITY OF RAILROADS The right to contract, like the right to con- struct lighthouses on one's own land, Gibbons v. Ogden, 9 Wheat. 1, 208, may be restrained if in conflict with the due and proper regulation of commerce. In a recent case decided by the Court of Ap- peals of the District of Columbia, McNamara v. Washington Terminal Company, 35 App. D. C. 230, involving the constitutionality of the federal Employers' Liability Act, the court made a care- ful analysis and review of the objection made to the statute that it invades the " freedom of con- tract." Upon this subject the Court said: "That the right of contract is subject to many limita- tions imposed in the interests of the general public, or, to preserve the public health, morals, or safety, is of course not denied. The decisions of the Su- preme Court of the United States are replete with declarations to that effect. In Munn v. People of Illinois, 94 U. S. 113, a statute fixing the maxi- mum charges for the storage of grain and prohib- iting charges for larger amounts was sustained. A California statute making it unlawful for em- ployees -to work in laundries between the hours of 10 p. m. and 6 a. m. met with the approval of the court in Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730. In Frisbie v. United States, 157 U. S. 1G0, 15 Sup. Ct. Rep. 586, an Act of Congress limiting the fees of attorneys prosecut- TO INTERSTATE EMPLOYEES 193 ing pension claims was held to be within the police power. The Court said: 'It is within the un- doubted power of government to restrain some individuals from all contracts, as well as all in- dividuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligation, except for the necessaries of exist- ence; to the common carrier the power to make any contract releasing himself from negligence, and, indeed, may restrain all engaged in any employ- ment from any contract in the course of that em- ployment which is against public policy.' H olden v. Hardy, 169 U. S. 366, 18 Sup. Ct. Rep. 383, involved a statute of Utah regulating the hours of labor in mines. Speaking of the right of con- tract, the Court said : ' This right of contract, how- ever, is itself subject to certain limitations which the State may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly ex- panded in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous or so far detri- mental to the health of employees as to demand special precautions for their well-being and protec- tion or the safety of adjacent property.' In deal- ing with the capacity of the parties to contract, the Court observed : ' But the fact that both parties 194 LIABILITY OF RAILROADS are of full age and competent to contract does not necessarily deprive the State of the power to interfere, where the parties do not stand upon an equality or where the public health demands that one party to the contract shall be protected against himself. "The State still retains an in- terest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the State must suffer." ' After a full review of the adjudged cases, the Court held the statute to be a valid exercise of the police power of the State. An Act of the legislature of the State of Tennessee re- quiring the redemption in cash of store orders or other evidences of indebtedness issued by em- ployers in lieu of wages was held, in Knoxville Iron Company v. Harbison, 183 U. S. 13, 22 Sup. Ct. Rep. 1, not to be in conflict with any provi- sions of the Constitution of the United States re- lating to contracts. A statute of the United States prohibiting the payment of seamen's wages in advance was held to be within the power of Con- gress in Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. Rep. 821. Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. Rep. 358, involved a law of that Commonwealth making vaccination com- pulsory in the discretion of a board of health in a' city or town. The Court, in sustaining the law, TO INTERSTATE EMPLOYEES 195 said: 'The liberty secured by the Constitution of the United States to every person within its juris- diction does not import an absolute right in each person to be at all times and in all circumstances wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.' The legislature of Arkansas enacted a law making it unlawful to screen coal before weighing it for payment of miners' wages. This law was sustained in McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. Rep. 206. The Court said: 'The mere fact that the court may differ with the legislature in its views of public policy, or that judges may hold views in- consistent with the propriety of the legislation in question, affords no ground for judicial interfer- ence, unless the act in question is unmistakably and palpably in excess of legislative power.'" The latest expression of the Supreme Court upon this subject is the unanimous opinion de- livered by Mr. Justice Hughes in the case of Chicago, Burlington & Quincy Railroad Co. v. McGuire, 31 Sup. Ct. Rep. 259. In this case the Court said that the right to make contracts is subject to the exercise of the powers granted to Congress for the suitable conduct of matters of national concern, as, for example, the regulation of commerce with foreign nations and among the several States. Addyston Pipe & Steel Co. v. 196 LIABILITY OF RAILROADS United States, 175 U. S. 228, 231, 20 Sup. Ct. Rep. 96; Patterson v. Bark Eudora, 190 U. S. 174, 176, 23 Sup. Ct. Rep. 821; Atlantic Coast Line Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. Rep. 164; Louisville & Nashville R. Co. v. Mottley, 31 Sup. Ct. Rep. 265. It is subject also, in the field of state action, to the essential authority of government to main- tain peace and security, and to enact laws for the promotion of the health, safety, morals, and welfare of those subject to its jurisdiction. This limitation has had abundant illustration in a variety of circumstances. Thus, in addition to upholding the power of the State to require reasonable maximum charges for public service, Chicago, Burlington & Quincy R. Co. v. Iowa, 94 U. S. 155; Railroad Commission Cases, 116 U. S. 307, 6 Sup. Ct. Rep. 334, 348, 349, 388, 391, 1191; Wilcox v. Consolidated Gas Co., 212 U. S. 19, 29 Sup. Ct. Rep. 192; and to prescribe the hours of labor for those employed by the State or its municipalities, Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. Rep. 124; the Supreme Court has sustained the validity of state legislation pro- hibiting the manufacture and sale of intoxicating liquors within a State, Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273; Crowley v. Chris- tensen, 137 U. S. 86, 11 Sup. Ct. Rep. 13; pro- hibiting the sale of cigarettes without license, TO INTERSTATE EMPLOYEES 197 Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. Rep. 633; prohibiting contracts for options to sell or buy grain or other commodity at a future time, Booth v. Illinois, 184 U. S. 425, 22 Sup. Ct. Rep. 425; and prohibiting the employment of women in laundries more than ten hours a day, Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. Rep. 324. The principle involved in these decisions is that where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legisla- ture transcends the limits of its power in interfering with liberty of contract; but where there is reason- able relation to an object within the governmental authority, the exercise of the legislative discretion is not subject to judicial review. The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative con- siderations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a par- ticular manner, are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance. 198 LIABILITY OF RAILROADS It would seem clear that if an enactment had no relation to any subject-matter properly within legislative power, no invocation of any freedom of contract was essential to its judicial overthrow. The declaration by the Supreme Court in the McGuire Case, 31 Sup. Ct. Rep. 259, that " where there is reasonable relation to an object within the governmental authority, the exercise of the legislative discretion is not subject to judicial review," seems logically to point to this conclusion, that if a law is valid and based upon some legis- lative power thereto enabling, "liberty of contract " is immaterial. If it is void for lack of legislative power over the subject-matter of the enactment, freedom of contract is unavailing. Hence it follows that liberty of contract can in no manner afford a test in and of itself of the va- lidity of legislation. Such validity in no manner depends upon whether or not it invades the liberty of contract. The case of Louisville & Nashville R. Co. v. Mottley, 31 Sup. Ct. Rep. 265, holds that an ex- isting contract, valid when made, may be rendered null by legislation of Congress within its power under the commerce clause. This seems to foreshadow the end of liberty of contract as an objection to the validity of legislation. TO INTERSTATE EMPLOYEES 199 § 51. This Doctrine Imports a Dangerously Loose Construction of the Constitution. Speaking in general terms of the doctrine of "liberty of contract," it may not be out of place to say that the school of constitutional construc- tion which would make " liberty of contract" a constitutional right is by no means a school of strict construction of the Constitution. Nor is it a construction preservative of the Constitution. It does not even serve the purpose of its defenders to conserve property interests. It is a loose construction, for it adds to the Constitution a meaning never intended by its authors, a meaning not within the natural inter- pretation of its provisions, and a meaning which a majority of the Supreme Court in the Slaughter- House Cases expressly repudiated. The fathers of the Republic founded a govern- ment "of the people, for the people, and by the people." Through chosen representatives respon- sible to the people the laws were to be made. And legislative power was not meant to be sub- ordinated to the guardianship of a co-ordinate department of the Government. Limits there are to the exercise of legislative power, but ,they are expressed in the Constitution and are not to be judicially created. A court to-day may give emphasis to the right to contract . Another court to-morrow differently con- 200 LIABILITY OF RAILROADS stituted may place the emphasis upon the right of the people to live, and the right to all the means necessary to enjoy the right to live. This would open a breach in the Constitution wide enough to justify the most radical schemes of socialistic experiment. A court to-day may enlarge upon the natural right, the sacred right, of contract, and having added to the fundamental charter of government a provision for the protection of what the court believes to be a natural right of man, what is there to prevent a future court from adding to the in- strument such rights as Tolstoi asserts to be the natural rights of man? If the door is opened to the judicial protection of rights not specified in the Constitution, then the judicial view of the future as to the limits of the natural rights of men is of more importance than the words of the Con- stitution. Thus, those courts which are foremost in ex- pressing their zeal for the protection of property, and which are at the same time most eager to rec- ognize a constitutional guarantee for the preser- vation of the right of contract, are unconsciously paving the way for a loose construction of the Constitution which may be made the basis for a justification of collectivism in government. The advocates of the wildest socialistic schemes of government base their claims upon the identical TO INTERSTATE EMPLOYEES 201 ground adopted by this modern school of judicial thought, the natural, sacred, and inalienable rights of men. So, in the interest of property those courts are unconsciously opening a way for constitutionally changing in the most radical manner the rules of law under which such property is at the present time enjoyed. The logical conclusions deducible from their enunciations countenance an economic doctrine destructive of the very object they are seeking to preserve. 202 LIABILITY OF RAILROADS CHAPTER XI THE ACT DOES NOT CREATE A DISCRIMINA- TORY CLASSIFICATION § 52. The Contention of Railroad Counsel. The Committee appointed by the Conference of Railroad counsel which convened in Atlantic City, N. J., July 13, 14, and 15, 1908, in their "Report on the Questions arising under the Em- ployers' Liability Act," says, page 64: " . . . it would seem to be clear that the Act is un- constitutional because, "(1) It includes within its provisions interstate employees of railroads alone, and, in conse- quence, it does not bring within this class all employees similarly situated, namely, "(a) The interstate employees of other inter- state carriers, and, "(b) The interstate employees of all other per- sons engaged in interstate commerce. "(2) The language of the Act includes within its terms not only those railroad employees whose occupations are attended by the hazards peculiar to railroading, but also all other employees of railroads whose occupations are in no wise at- tended with such hazards; TO INTERSTATE EMPLOYEES 203 "(3) The Act includes within its terms one class only of interstate employers, to wit, rail- roads ; and this without regard to the hazards of the employment." § 53. Doctrine of Common Employment In- volves Same Classification. It is objected that all employees of railroads cannot be classified together. To this it may be answered that for more than half a century the railroads themselves have invoked the same clas- sification under the " doctrine of common employ- ment." Ever since the decision in the case of Farwell v. Boston & Worcester R. Corporation, 4 Mete. 49, the courts have held that the same common employment provided a proper classi- fication for a denial of the right of recovery in case of personal injuries to employees. Baron Alderson in Hutchinson v. York, N. and B. R. Co., 5 Exch. 343, stated that the defense of fellow-service was applicable to any servant "whenever he is acting in the discharge of his duty as the servant of him who is the common master of both." The common law denied a remedy to one in the service of the same master without any question of the propinquity of danger in his own particular line of general service for the reason that he was within the general service of his em- 204 LIABILITY OF RAILROADS ployer, and so obliged to assume all risk of injury from the manifest perils of the master's business, including the risk of injury from the negligence of fellow-servants. It was the peril of the master's business he was obliged to assume. His assump- tion of risk was not limited to the manifest perils of his own particular line of work for which his service was engaged, but it included all perils which were incident to the master's business. The master was immune for injury to any of his servants caused by the negligence of any other of his servants within the general scope of the master's business in which both servants were employed. For example, a painter engaged to work as an employee of a railroad, and who was engaged in painting a railroad building beside the track, not only assumed the risk of any in- jury accruing to him which would naturally arise from the particular work in which he was engaged, but he also was obliged to assume the risk of injury from any other branch of the service of the same common master, the railroad. If, while engaged in painting, he was injured by a train on his employer's railroad leaving the track and overturning his ladder, he had no remedy. Thus a class was judicially established to all of whom was denied the right to recover for personal injuries under circumstances which gave rise to an action in favor of all not within the excluded class. TO INTERSTATE EMPLOYEES 205 This line of classification was clearly pointed out by Justice Field in Chicago, Milwaukee & St. Paul Ry. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. Rep. 184, as follows: "The general liability of a rail- road company for injuries, caused by the negli- gence of its servants, to passengers and others not in its service, is conceded. It covers all injuries to which they do not contribute. But where injuries befall servants in its employ, a different principle applies." Those judicially classed together under the above rule, it is now asserted, cannot be legis- latively classed together. Now it is urged that a railroad employee who in his particular occupation is not ordinarily sub- jected to the extreme hazards of the master's busi- ness must, if at any time he be overtaken by any of those hazards, be denied a remedy, and that it is unconstitutional for the legislature to provide a remedy in such case. The logic which included him in the general service of a common master to deny him a remedy at common law is now reversed in an endeavor to invalidate an act which follows the line of in- clusion established and existing at common law. Considering the question of classification merely, is it possible that there can be a valid judicial classification excluding all in the class from a remedy at law and that the same classification is invalid in legislation permitting a remedy? 206 LIABILITY OF RAILROADS Can there be a constitutional right requiring the segregation of those not in the hazardous occupations of railroading from those directly connected with such service, when a legislature acts, and yet no constitutional right to the same segregation when a court rules that all employees as a class are without a remedy merely because they are in the same common employment? Employees who have been judicially unified and classified so as to exclude them from remedy should not, when legislation has granted a remedy to them all as the same class, be thereafter judi- cially segregated for the purpose of perpetuating the denial of remedy. Such alternate unification and segregation, always to deny a remedy to em- ployees, would be a reproach to which the courts will not subject themselves. Those who criticise this legislation on the ground that its terms are too inclusive, as extending a remedy to all employees of interstate railroads, seem to forget that it is the rule of common em- ployment which is under consideration. Under this rule of common employment all employees who were engaged in the same general employ- ment and who derived their authority and com- pensation from the same source were fellow- servants. All in the same common employment were by i lie common law denied the remedy given others TO INTERSTATE EMPLOYEES 207 under like circumstances. All in the same common employment may by a statute become entitled to a remedy which the common law denied. In each case the classification is identical. Now, the remedy may be as comprehensive as the evil it seeks to meet, provided always that the legislative power is constitutionally ample to reach that evil. The courts, therefore, where leg- islative power over the subject-matter is other- wise admitted to exist, will scarcely condemn as unconstitutional a legislative act based upon the very classification which they have themselves judicially created and sustained. The argument against the legislative classifica- tion in the Employers' Liability Act of 1908 is an open attack upon the " equality," the "due pro- cess," and the "arbitrary" character of the rule of common employment, established by the courts in conformity with the wishes of defendant rail- roads. For the rule of common employment is open to all the constitutional objections which are so strenuously urged by railroad counsel against the validity of this legislation. If these particular objections are tenable, then they apply to the common law, which must thereby fall. In other words, if it is an unconstitutional classification, as now urged by railroad counsel, to include in a legislative Act all who are in the service of the same railroad company, the classi- 208 LIABILITY OF RAILROADS fication established in the judicial rule, excluding from a remedy all who serve the same common master, is unconstitutional. If these contentions are well grounded, it seems to be logically inevitable that to deny to all em- ployees as a class a remedy which is given by law to all others than employees, is " arbitrary classi- fication," is "unequal," and is a denial of "due process of law." § 54. Equal Protection of the Law Clause does not Restrain Normal Exercise of Governmental Power. The whole contention that the Act of 1908 offends against the equal protection of the law clause of the Constitution is conclusively disposed of by the reasoning in the recent unanimous opinion of the Supreme Court in the case of Louisville & Nashville R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. Rep. 676. In the opinion written by Mr. Justice White in this case it was said: "That the Fourteenth Amendment was not intended to and does not strip the States of the power to exert their lawful police authority is settled, and requires no refer- ence to authorities. And it is equally settled — as we shall hereafter take occasion to show — as the essential result of the elementary doctrine that the equal protection of the law clause does TO INTERSTATE EMPLOYEES 209 not restrain the normal exercise of governmental power, but only abuse in the exertion of such authority, therefore that clause is not offended against simply because as the result of the exer- cise of the power to classify some inequality may be occasioned. That is to say, as the power to classify is not taken away by the operation of the equal protection of the law clause, a wide scope of legislative discretion may be exerted in classifying without conflicting with the constitu- tional prohibition. "It is beyond doubt foreclosed that the Indiana statute does not offend against the equal pro- tection clause of the Fourteenth Amendment, because it subjects railroad employees to a dif- ferent rule as to the doctrine of fellow-servant from that which prevails as to other employments in the State. Tullis v. Lake Erie & W. R. Co., 175 U. S. 348, 20 Sup. Ct. Rep. 136; Pittsburg, C. C. & St. L. Ry. Co. v. Ross, 212 U. S. 560, 29 Sup. Ct. Rep. 688. But while conceding this, the argu- ment is that classification of railroad employees for the purpose of the doctrine of fellow-servant can only consistently with equality and uni- formity embrace such employees when exposed to dangers peculiarly resulting from the operation of a railroad, thus affording ground for distin- guishing them for the purpose of classification from co-employees not subject to like hazards or 210 LIABILITY OF RAILROADS employees engaged in other occupations. The ar- gument is thus stated: 'Plaintiff in error does not question the right of the legislature of Indiana to classify railroads in order to impose liability upon them for injuries to their employees incident to railroad hazards, but it does insist that to make this a constitutional exercise of legislative power the liability of the railroads must be made to depend upon the character of the employment and not upon the character of the employer.' Thus stated, the argument tends to confuse the question for decision, since there is no contention that the statute as construed bases any classifi- cation upon some supposed distinction in the person of the employer. The idea evidently in- tended to be expressed by the argument is, that although, speaking in a general sense, it be true that the hazards arising from the operation of railroads are such that a classification of rail- road employees is justified, yet as in operating railroads some employees are subject to risks peculiar to such operation and others to risks which, however serious they may be, are not in the proper sense risks arising from the fact that the employees are engaged in railroad work, the legislative authority in classifying may not con- found the two by considering in a generic sense the nature and character of the work performed by railroad employees collectively considered, but TO INTERSTATE EMPLOYEES 211 must consider and separately provide for the distinctions occasioned by the varying nature and character of the duties which railroad opera- tives may be called upon to discharge. In other words, reduced to its ultimate analysis the con- tention comes to this, that by the operation of the equal protection clause of the Fourteenth Amendment the States are prohibited from ex- erting their legitimate police powers upon grounds of the generic distinction obtaining between per- sons and things, however apparent such distinc- tion may be, but, on the contrary, must legislate upon the basis of a minute consideration of the distinctions which may arise from accidental circumstances as to the persons and things com- ing within the general class provided for. When the proposition is thus accurately fixed it neces- sarily results that in effect it denies the existence of the power to classify, and hence must rest upon the assumption that the equal protection clause of the Fourteenth Amendment has a scope and effect upon the lawful authority of the States con- trary to the doctrine maintained by this court without deviation. This follows since the neces- sary consequence of the argument is to virtually challenge the legislative power to classify and the numerous decisions upholding that authority. To this destructive end it is apparent the argu- ment must come, since it assumes that however 212 LIABILITY OF RAILROADS completely a classification may be justified by general considerations, such classification may not be made if inequalities be detected as to some persons embraced within the general class by a critical analysis of the relation of the persons or things otherwise embraced within the general class. A brief reference to some of the cases dealing with the power of a State to classify will make the error of the contention apparent. "In Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. Rep. 594, while declar- ing that the power of a State to distinguish, select, and classify objects of legislation was of course not without limitation, it was said, 'necessarily this power must have a wide range of discretion.' After referring to various decisions of this court, it was observed: "'There is therefore no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical in- equalities. And necessarily so. In a classification for governmental purposes there cannot be an ex- act exclusion or inclusion of persons and things.' "Again, considering the subject in Orient Ins, Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281, it was reiterated that the legislature of a State has necessarily a wide range of discretion in dis- tinguishing, selecting, and classifying, and it was declared that it was sufficient to satisfy the TO INTERSTATE EMPLOYEES 213 demand of the Constitution if a classification was practical and not palpably arbitrary. "In Minnesota Iron Co. v. Kline, 199 U. S. 593, 26 Sup. Ct. Rep. 159, a statute of Minnesota, providing that the liability of railroad companies for damages to employees should not be diminished by reason of accident occurring through the negli- gence of fellow-servants, was held not to discrimi- nate against any class of railroads, or to deny the equal protection of the laws because of a proviso which excepted employees engaged in construction of new and unopened railroads. In the course of the opinion the Court said (p. 598) : "'The whole case is put on the proviso, and the argument with regard to that is merely one of the many attempts to impart an over-mathe- matical nicety to the prohibitions of the Four- teenth Amendment.' These principles were again applied in Martin v. Pittsburg & L. E. R. Co., 203 U. S. 284, 27 Sup. Ct. Rep. 100, and the doctrines were also fully considered and reiter- ated at this term in Southwestern Oil Co. v. Texas, 217 U. S. 114, 30 Sup. Ct. Rep. 496." § 55. Legislation Applicable only to Em- ployees of Railroad Companies is not Arbitrary. In the case of Mobile, Jackson & Kansas City Rij. Co. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 214 LIABILITY OF RAILROADS Rep. 136, Mr. Justice Lurton, delivering the opin- ion of the court, conclusively disposed of the con- tention that legislation of this general character is objectionable as an unjust classification, and said : "It is urged that this legislation, applicable only to employees of a railroad company, is arbitrary, and a denial of the equal protection of law, unless it be limited in its effect to employees imperiled by the hazardous business of operating railroad trains or engines, and that the Mississippi Supreme Court had, in prior cases, so defined and construed this legislation. Ballard v. Mississippi Cotton Oil Co., 81 Miss. 532, 34 So. Rep. 533; Bradford Con- struction Co. v. Heflin, 88 Miss. 314, 42 So. Rep. 174. " It is now contended that the provision has been construed in the present case as applicable to an employee not subject to any danger or peril peculiar to the operation of railway trains, and that therefore the reason for such special classifi- cation fails, and the provision so construed and applied is invalid as a denial of the equal protec- tion of the law. "This contention, shortly stated, comes to this: that although a classification of railway employees may be justified from general considerations based upon the hazardous character of the occupation, such classification becomes arbitrary and a denial TO INTERSTATE EMPLOYEES 215 of the equal protection of the law the moment they are found to embrace employees not exposed to hazards peculiar to railway operation. "But this court has never so construed the lim- itation imposed by the Fourteenth Amendment upon the power of the State to legislate with ref- erence to particular employments as to render ineffectual a general classification resting upon obvious principles of public policy because it may happen that the classification includes persons not subject to a uniform degree of danger. The in- sistence, therefore, that legislation in respect of railway employees generally is repugnant to the clause of the Constitution guaranteeing the equal protection of the law merely because it is not lim- ited to those engaged in the actual operation of trains is without merit. "The intestate of the defendant in error was not engaged in the actual operation of trains. But he was nevertheless engaged in a service which subjected him to dangers from the operation of trains, and brought him plainly within the gen- eral legislative purpose. The case in hand illus- trates the fact that such employees, though not directly engaged in the management of trains, are nevertheless within the general line of hazard inherent in the railway business. The deceased was the foreman of a section crew. His business was to keep the track in repair. He stood by the 216 LIABILITY OF RAILROADS side of the track to let a train pass by; a derailment occurred and a car fell upon him and crushed out his life. "In the late case of Louisville & N. R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. Rep. 676, an Indiana fellow-servant act was held applicable to a member of a railway construction crew who was injured while engaged in the construction of a coal tipple alongside of the railway track. This whole matter of classification was there con- sidered. 'Nothing more need be said upon the subject, for the case upon this point is fully covered by the decision referred to." In other cases the Supreme Court has affirmed the constitutional validity of statutes of States, which confined to railroads a remedy for injuries otherwise open to the "common employment" defense. The classification of railroads was held to be reasonable and not arbitrary. Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161; Tullis v. Lake Erie & W. R. Co., 175 U. S. 348, 20 Sup. Ct. Rep. 136; St. Louis, M. B. T. Ry. Co. v. Callahan, 194 U. S. 628, 24 Sup. Ct. Rep. 857; Chicago, Kansas & Western R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. Rep. 585; and Peirce v. Van Dusen, 78 Fed. Rep. 693. Mr. Justice McKenna delivering the opinion of the court in Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. Rep. 594, said: TO INTERSTATE EMPLOYEES 217 "The clause of the Fourteenth Amendment es- pecially invoked is that which prohibits a State denying to any citizen the equal protection of the laws. What satisfies this equality has not been and probably never can be precisely defined. Generally it has been said that it 'only requires the same means and methods to be applied im- partially to all the constituents of a class so that the law shall operate equally and uniformly upon all persons in similar circumstances.' Kentucky Railroad Tax Cases, 115 U. S. 321, 337, 6 Sup. Ct. Rep. 57. It does not prohibit legislation which is limited, either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions, both in the privilege conferred and the liabilities imposed. Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. Rep. 350. Similar citations could be multiplied. But what is the test of likeness and unlikeness of cir- cumstances and conditions? These expressions have almost the generality of the principle they are used to expound, and yet they are definite steps to precision and usefulness of definition, when connected with the facts of the cases in which they are employed. With these for illus- tration it may be safely said that the rule pre- scribes no rigid equality and permits to the dis- 218 LIABILITY OF RAILROADS cretion and wisdom of the State a wide latitude as far as interference by this court is concerned. Nor with the impolicy of a law has it concern. Mr. Justice Field said in Mobile County v. Kimball, 102 TJ. S. 691, that this court is not a harbor in which can be found a refuge from ill-advised, unequal, and oppressive State legislation. And he observed in another case, ' It is hardly necessary to say that hardship, impolicy, or injustice of state laws is not necessarily an objection to their constitutional validity.' . . . "And in matters not of taxation, if A be a different kind of corporation than B, it may sub- ject A to a different rule of responsibility to ser- vants than B, Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161; to a different measure of damages than B, Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. Rep. 207, and it permits special legislation in all of its varieties. Missouri Pacific Ry. Co. v. Mackey, 127 U..S. 205, 8 Sup. Ct. Rep. 1161; Minneapolis & St. Louis Ry. Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. Rep. 1176; Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. Rep. 570. In other words, the State may distinguish, select, and classify objects of legislation, and necessarily this power must have a wide range of discretion. . . . "And Mr. Justice Brewer, in Gulf, Colorado & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rop. TO INTERSTATE EMPLOYEES 219 255, after a careful consideration of many cases, said: 'It is apparent that the mere fact of classifi- cation is not sufficient to relieve a statute from the reach of the equality clause of the Four- teenth Amendment, and that in all cases it must appear not only that a classification has been made, but also that it is one based upon some rea- sonable ground — some difference which bears a just and proper relation to the attempted classi- fication—and is not a mere arbitrary selection." Limited in its application to the servants of an interstate railroad while such railroad and the injured servant are engaged in interstate com- merce, the language of the Supreme Court of North Carolina in its consideration of a statute of that State is clearly applicable here. In Nich- olson v. Transylvania R. Co., 138 N. C. 516, 51 S. E. Rep. 40, the Court said that "the inten- tion of the legislature was that the doctrine of the non-liability of the master for injuries to an employee caused by the negligence of a fellow- servant should be abolished as to all employees in railroad service, 'whether (as we have said in Sigman v. Southern R. Co., 135 N. C. 184, 47 S. E. Rep. 421) they are running trains or ren- dering any other service, we have no disposition to do otherwise than to affirm fully our ruling already made and cited above. But the Act applies only to employees of a ' railroad- oper at ing ' ; 220 LIABILITY OF RAILROADS not that such employees must be operating the trains, but they must be employees in some depart- ment of its work of a railroad which is being oper- ated. Such business is a distinct, well-known business, with many risks peculiar to itself, and all the employees in such business, whether run- ning trains, building or repairing bridges, laying tracks, working in the shops, or doing any other work in the service of an 'operating railroad,' are classified and exempted from the rule which re- quires employees to assume the risk of all injuries which may be caused by the negligence of a fellow- servant." § 56. The Inclusion of All Railroad Em- ployees is a Reasonable Classification. "Reasonableness" may be predicated of a classification which follows the judicial rule of inclusion of all in a common employment. When it is admitted that railroading is a hazardous oc- cupation to which legislative regulation is appli- cable, it cannot be asserted that it is " unreason- able" or " arbitrary" to include all within the common employment of railroading as coming within the scope of legislative classification. The courts probably assumed, as a reason for the defense of common employment, the diffi- culty of drawing a line between servants in a- common employment. May not the same diffi- TO INTERSTATE EMPLOYEES 221 culty in defining in precise terms what occupations in railroading are extraneous to the hazards of such occupation, be a " reasonable" basis for their inclusion in a statute intended to remedy the injustice of the common-employment doctrine of the common law? As all in the common employment are unified by the common-law rule, can it be said to be un- reasonable or arbitrary to include them all in a statute intended to relieve from the disability of servants to recover under the common-law rule? Such a classification as this statute makes, certainly "is not a mere arbitrary selection." It is "based upon some reasonable ground." It is based upon "some difference which bears a just and proper relation to the attempted classifica- tion." It cannot be said that the classification adopted in the statute is a "mere excuse for unjust discrimination," when its purpose is to relieve a class from a "discrimination" existing in the com- mon law which the legislature deems "unjust." As it has been determined that a classification of "railroads" in a remedial statute like the pres- ent is open to no constitutional objection, the in- clusion in its terms of all railroad employees in the same common employment is not constitutionally objectionable. It is a general inclusion. It is all-embracing. It divides railroad employees into no class. It 222 LIABILITY OF RAILROADS makes no distinction between employees in rail- road service. It favors no branch of railroad service. All the servants of railroads are treated alike. The only limitation made is the necessary one that the railroad shall be engaged in interstate commerce, and the remedy is given to all servants of such a railroad who are injured "while engaged" in interstate commerce. This limitation is made because necessary to bring the case within the scope of the federal power. No other limitation, division, or classification of the servants of rail- roads is made or attempted. In general terms it may be asserted that all such servants who meet with death or injury while engaged in a perilous employment are sufficiently within the scope of its perils to permit their classification together. "If a man is injured or killed in any .line of work, it was hazardous in his case." Message of President Roosevelt to Congress, December 8, 1908. The killed and injured servants are classified together, and no classification or specification of the precise nature of the accident causing the death or injury is necessary. The perilous nature of the general employment of railroading to which their service has constant relation may be a reasonable and sufficient basis for the classifica- tion of all who have been killed and injured in such service. TO INTERSTATE EMPLOYEES 223 There is no compulsory requirement that train accidents be segregated from shop accidents, or the casualties arising from track work or construc- tion work. Each of these branches of railroad work has its own perils. Congress has the power to reach such of them as have any relation to inter- state commerce, and has no power to reach similar accidents in service of other employers not engaged in interstate commerce. All who have contracts of service with the car- rier may be included in legislation which affects an implied term in said contract if the legislature has the power over the subject-matter. If the subject-matter is interstate service, Congress has power to regulate the implied terms of all con- tracts of service. In the congressional legislation under the com- merce clause regulating the issue of passes, all employees of carriers have been classed together as an exception to the general rule which makes penal the issue of passes to the public generally. The classification together of all the employees of a railroad is not an unfamiliar one, and cannot be said to be arbitrary or discriminatory. The same classification may be found in statutes enacted in England upon the same general subject as that upon which Congress has legislated. The final and conclusive answer to the conten- tion that all the employees of a railroad cannot 224 LIABILITY OF RAILROADS be the beneficiaries of remedial legislation is made by the Supreme Court in the case of Balti- more & 0. R. Co. v. Baugh, 149 U. S. 368, 384, 13 Sup. Ct. Rep. 914, where it was declared that "All enter into the service of the same master to further his interests in the one enterprise." TO INTERSTATE EMPLOYEES 225 CHAPTER XII CONGRESS MAY PROVIDE A REMEDY FOR IN- JURIES CAUSED BY INTRASTATE SERVANTS § 57. The Injury from a Cause within the Control of the Interstate Employer Constitutes the Interference with In- terstate Commerce. It has been asserted that there is constitutional objection to the Act in that it affords a remedy to an interstate employee who may be injured as the result of negligence of a fellow-servant who is engaged in intrastate commerce. (Report of Committee appointed by Conference of Railroad Counsel at Atlantic City, N. J., July 13, 14, 15, 1908.) If the casualty resulting to an employee of an interstate railroad, while such employee is him- self engaged in interstate commerce, results from a cause over which the interstate employer has authority and control, there does not seem to be much ground for discrimination as to the local or interstate status of such cause. Congress has said in effect that if the master allows or permits any agency over which he has authority and control to invade the domain of 226 LIABILITY OF RAILROADS interstate commerce to the extent of violating the right to safety of his interstate employees, he cannot plead as a defense the fellow-servant doctrine. The congressional power extends to any ser- vant of an interstate road, while he is about his master's business, and is engaged in interstate commerce, to the extent of protecting him from any injury arising from a cause within his em- ployer's control. The injury to him constitutes an interference with interstate commerce, and Congress has the power to fix the liability of the carrier therefor. If an act of an intrastate servant is so directly connected with interstate commerce that it in- jures one who is engaged in interstate commerce, such act is so proximate to interstate commerce as to bring it within the power of Congress. In re Debs, 158 U. S. 564, 15 Sup. Ct. Rep. 900. The acts of the Chicago rioters in the Debs Case were in one sense purely local. But the interference with instrumentalities of interstate commerce brought such acts within the scope of the federal power. Under the application of the doctrine of re- spondeat superior, others than the actual par- ticipants in violence were punished under the power of the federal government to protect com- merce. Similarly the doctrine of respondeat TO INTERSTATE EMPLOYEES 227 superior may be permitted to apply to an injury to an interstate servant of an interstate rail- road from local causes and instrumentalities which are within the control of such interstate carrier. Even an intrastate servant of an interstate carrier is one of the cogs in a mechanism which as a complete whole is interstate and within federal control. As Lord Colonsay said in Wilson v. Merry, 19 L. T. Rep. n. s. 30; L. R. 1 Scotch App. 326: "We must look to the functions the party dis- charges and his position in the organism of the force employed, and of which he forms a con- stituent part." >. Such an intrastate servant is hired by the \ interstate carrier, is paid by the interstate car- \ rier, his service is for the benefit of the interstate I carrier. And his service is essentially necessary for the interchange of local and interstate traffic, and is always performed under orders and authority emanating from superior officers of I the company, who are themselves interstate employees. As a matter of fact, there is no distinction as to the employment by carriers of their servants in interstate and intrastate commerce. As already cited from the Baugh Case, 149 U. S. 368, 384, 13 Sup. Ct. Rep. 914: "All enter into the service 228 LIABILITY OF RAILROADS of the same master, to further his interests in the one enterprise." § 58. The Impossibility of Segregating In- trastate from Interstate Employees. So great is the intermingling of interstate and state traffic in the business of an interstate rail- road, that it would be almost, if not absolutely, impossible to name any servant of an interstate road who was solely and exclusively a state ser- vant or agent of that railroad. An interstate railroad is run as a unit. All the departments and divisions of such railroads are closely correlated and intermingled, and it would be difficult to define a distinct line of segregation. The financial affairs of the road are managed as a whole. The direction and control of trains are under one head. The general orders covering all operations of the road come from the same general manager. Particular orders as to the dispatch of trains originate with interstate train dispatchers. The same engines, cars, and other instrumentalities are indiscriminately used in interstate and intrastate business. The same tracks are used for both interstate and intra- state traffic. The most distinctively local branches have physical connection with the interstate tracks, and foreign cars loaded with interstate traffic, and trains of the road itself containing TO INTERSTATE EMPLOYEES 229 cars loaded in whole or in part with interstate traffic, pass indiscriminately over these local divisions. At the ticket offices of every local branch of such a railroad tickets are sold over the entire interstate railroad, and also over intrastate con- necting lines. Inasmuch as interstate passengers are thus solicited and afterwards carried over such seemingly local branches, all engaged in their transportation, and all co-operating in the maintenance of the track for their transporta- tion, are engaged in interstate commerce. \ Every local freight station on the line receives \ and transmits freight for all other stations on the line, and for points beyond the State, and thus all who co-operate in any of the work of the re- ceipt or transmission of such freight are engaged in interstate commerce. All who participate in the maintenance of_the instrumentalities for the general use of the road, even in the maintenance of such instrumentalities as are used on purely local branches, necessarily participate in the work of interstate commerce, because interstate commerce is carried on over every part, branch, section, and division of the entire system of such interstate road. / 230 LIABILITY OF RAILROADS CHAPTER XIII A REVIEW OF THE HOXIE CASE § 59. Relation of this Act to Sovereignty of States. The Supreme Court of Errors of Connecticut in the case of Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, declared the Employers' Lia- bility Act of 1908 to be unconstitutional, and in the course of the opinion spoke of the statute as one which " reduces the limits within which sovereignty of the States has for more than a century been freely exercised." As to commerce, the sovereignty of a State ex- tends only to that commerce which is exclusively internal and within its own limits. No sovereign power of a State ever existed over commerce with other States. Over interstate commerce federal authority is paramount, and has been ever since the adoption of the Constitution. This Act confers a right of action not existing under the laws of Connecticut, and not existing at common law, for the benefit of an employee of an interstate railroad, or his dependents if he is injured or killed while engaged in interstate TO INTERSTATE EMPLOYEES 231 commerce. It confers a federal right where none existed heretofore. How does this "reduce the limits of the sov- ereignty of the States?" No right existing by the laws of the States is reduced, impaired, or qualified. No right of any servant of an exclusively local railroad is in any manner affected or impaired by this statute. No limitation is made or at- tempted by the Act upon the enforcement of a right of action of a local servant of a local rail- road. By its terms there is no impairment of any statutory or judicial rule applicable to ac- tions of which the State has sole jurisdiction. No limitation of the sovereignty of the States exists because a federal right, now conferred where none heretofore existed, is different in its terms and conditions from the terms and conditions under which actions which are authorized under local law are heard and determined in local courts. No change in local actions under local laws is made or is sought to be made. No limitation can be predicated of state au- thority when all actions constitutionally au- thorized by the statutes of a State, or arising exclusively in such commerce as is within the sole jurisdiction of the State, remain unaffected and uncontrolled by the terms of the federal statutes. 232 LIABILITY OF RAILROADS No obligation exists to compel Congress in the establishment of a new federal right to confer it in terms which shall be uniform with the terms and conditions under which somewhat similar rights are enforced in the courts of the States. Such compulsion of uniformity would render futile any attempt by Congress to legislate upon any subject where state legislation existed upon subjects more or less remotely related to the sub- ject-matter of proposed federal legislation. When no right within the scope of Constitu- tional exercise of state power is impaired or affected, the establishment by Congress of a federal right in the exercise of its constitutional powers cannot properly be said to "limit the sovereignty of the States." There is and can be no " conflict" and no limi- tation of state sovereignty, where the national Congress creates a new right of action under cir- cumstances where the common law and the law of a "State" denied such a right of action. The terms and conditions of such a federal cause of action have no relation to the terms and conditions under which causes of action under substantially different circumstances exist under the undoubted power and authority of the State. Where, as disclosed in the Connecticut case, a State right to recover from an employer for the negligence of a fellow-employee is non-existent, TO INTERSTATE EMPLOYEES 233 how can the creation of a federal right under such circumstances limit the sovereignty of the States or conflict with their procedure? As no right of action exists under the circumstances in Connecticut, it is extremely difficult to under- stand why, as the court in the Hoxie Case says, the proceeding authorized by the federal law "could only be sustained by disregarding many of the requirements of our own law [that of Connecticut] with respect to both pleadings and evidence.' ' As before stated, the federal law establishes no rule of pleading or evidence. No more diffi- culty exists in the enforcement of such a cause of action as Congress has here established in the courts of a State than in the courts of the United States. The procedure in both is identical. The recognition of such a right in either the courts of a State or in the courts of the United States in no manner limits the sovereignty or impairs the au- thority of the State. The past inaction of Congress on a particular subject within its express powers affords no aid to an argument against its authority upon such subject. "Surely there is no statute of limitations which bars Congress from the exercise of any of its granted powers, nor any authority, save that of the people whom it represents, which may with 234 LIABILITY OF RAILROADS propriety challenge the wisdom of its choice of the time when remedies shall first be applied to what it deems wrong." Mr. Justice Moody, dis- senting opinion Employers' Liability Cases, 207 U. S. 522. The court in the Hoxie Case refers to the Act in question as "an Act of Congress which, if valid, reduces the limits within which the sov- ereignty of the State has for more than a century been freely exercised." But if the Act in question is a regulation of commerce, the fact that it in- vades the reserved powers of the State, or the sovereignty exercised under the police power of the State for more than a century, does not in any degree affect or limit the power of Congress. That legislative power over a subject-matter is within the reserved powers of the States or within the police power of the State does not impair the paramount right of Congress to act upon that subject-matter in the execution of any of the powers delegated to Congress by the Con- stitution of the United States. Gibbons v. Ogden, 9 Wheat. 1, 210, 211. § 60. No Action under Two Thousand Dollars. In the course of the opinion in the Hoxie Case the Court says: "It is true that under the present statutes of the United States no action under the TO INTERSTATE EMPLOYEES 235 Act of 1908 would lie in a court of the United States unless the damages claimed exceeded $2,000. Congress may, however, well be deemed to have had in mind the power of the plaintiff to claim what damages he pleases, and the rule that the sum named determines the jurisdiction." To claim that Congress intended either that no right of action should lie in any court for a case legitimately involving less than $2,000, or that plaintiff should claim excessive damages, to bring himself within the jurisdiction of a Circuit Court of the United States, is tantamount to the asser- tion that Congress did not intend that actions under the Act of 1908 should be brought in state courts. But the fact that no action for damages under $2,000 would lie in any court if confined under the statute to the United States Circuit Courts, would seem to negative the suggestion that Congress intended to bar such actions, and to indicate the congressional intent that they should be brought in the state courts. In 1 Foster's Federal Practice, 90, the rule is plainly laid down and fortified by ample au- thority that, "Where the plaintiff exaggerates the amount in dispute the court may, on exception properly taken, try the question of jurisdiction separately without a jury, and if the damages appear to have been purposely and fraudulently magnified, it may dismiss the case. ..." 236 LIABILITY OF RAILROADS Among the cases cited in support of this propo- sition are the following: Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 23 Sup. Ct. Rep. 754; Chicago Cheese Co. v. Fogg, 53 Fed. Rep. 72; Simon v. House, 46 Fed. Rep. 317; H olden v. Utah & M. Mach. Co., 82 Fed. Rep. 209; Horst v. Merkley, 59 Fed. Rep. 502; Max- well v. Atchison, T. & S. F. R. Co., 34 Fed. Rep. 286; Bedford Quarries Co. v. Welch, 100 Fed. Rep. 513; Bank of Arapahoe v. David Bradley Co., 72 Fed. Rep. 867. In contrast with the suggestion of an exaggera- tion of a plaintiff's claim as a basis for the juris- diction of the United States Circuit Court in cases involving under $2,000, may be noted the case of Smeltzer v. St. Louis & S. F. R. Co., 168 Fed. Rep. 420, in which the Court, referring to this same statute, said: " . . . suits for $2,000 and less must be brought in the state courts, other- wise jurisdiction obtains in no court, state or federal, for that class of cases, and the Act of Congress, to that extent, is unenforceable. Any other conclusion would not only nullify the twentieth section of the Hepburn Act under con- sideration, but many other Acts of deep concern to the country, among others Act May 30, 1908, c. 225, 35 Stat. 476, Ho promote the safety of employees on railroads'; Act April 22, 1908, c. 149, 35 Stat. 65, known as the 'Employers' TO INTERSTATE EMPLOYEES 237 Liability Act'; Act June 29, 1906, c. 3594, 34 Stat. G07 (U. S. Comp. St. Supp. 1907, p. 918), known as the 'Act to prevent cruelty to animals while in transit ' ; and others which might be cited." It is provided by the Judiciary Act of March 3, 1875, 18 Stat. 472 (U. S. Comp. Stat. 1901, 511): "That if in any suit commenced in a Cir- cuit Court ... it shall appear to the satisfac- tion of said Circuit Court . . . that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, . . . the said Circuit Court shall proceed no further therein, but shall dismiss the suit. ..." This ruling in the Hoxie Case, if sustained, would leave any citizen with a federal right to recover an amount under $2,000 without a remedy in any court in the land, except in the Territories and District of Columbia. Assignees in bankruptcy, national banks, and all who base a right upon a federal law, to recover a sum less than $2,000, would find no court in the land open to them, if this rule enunciated by the Connecticut court were to be generally applied. But it is said the application is made only to a "new cause of action" created by Congress. Yet there was a time when each of such now 238 LIABILITY OF RAILROADS well-established causes of action was new, and it was never thought proper to bar them from state courts. § 61. Action by Personal Representative and Distribution of Fund. In the course of the opinion in the Hoxie Case it was said: "The Act gives a remedy for injuries causing death, without limitation of the damages recoverable, in favor of the executor or adminis- trator; the fund to be distributed in a manner which is inconsistent with the law of every State with respect to the devolution of the estate of a deceased person. In our opinion Congress cannot create such a right of action in favor of personal representatives of an inhabitant of a State. They are appointed, or their appointment is approved, by authority of the State, exercised through some court to which they are accountable. If the damages recoverable are to be treated as repre- senting estate left by the decedent, it is for the State of his domicile to regulate their distribution. If they are to be treated as a fund created by this Act, which does not represent anything that ever belonged to the decedent, it was, in our opinion, not within the competency of Congress thus to bring into existence a new duty of executors or administrators to collect and a new duty of mas- ters to pay what the decedent never owned. Such TO INTERSTATE EMPLOYEES 239 legislation falls solely within the sphere of the States." In United States v. Hall, 98 U. S. 343, objections similar to those which the court here urges were raised to the constitutionality of an act of Con- gress providing punishment for "every guardian . . . who embezzles or fraudulently converts the pension of his ward." The defendant contended in that case that such a law was unconstitutional on the following grounds : "a. That it is municipal in its character, oper- ating on the conduct of individuals, and that it assumes to take the place of ordinary state legislation. 11 b. That if Congress may pass such a law, then Congress may assume all the police regu- lations of the States and work their entire de- struction. "c. That inasmuch as the state law authorized the guardian to receive the pension money, the defendant cannot be subjected to an indictment under an Act of Congress for embezzling it after he lawfully received it. "d. That matters of police regulation are not surrendered to Congress, but are exclusively within state legislation. "e. That a guardian is a state officer, and as such is not subject to the laws of Congress in the performance of his duties." 240 LIABILITY OF RAILROADS But the Supreme Court, Mr. Justice Clifford delivering the opinion, said: "It is competent for Congress to enforce by suitable penalties all legis- lation necessary or proper to the execution of power with which it is intrusted. ..." To be sure, the provision referred to in the Hall Case just cited referred specifically to the distribu- tion of the nation's own bounty, and arose from the power under the Constitution to raise armies and declare war. But the federal legislative power is not to be measured differently when in exercise of the war power than when it arises under the commerce clause. The legislative power may provide for the pro- tection of beneficiaries when a fund arises under a federal right as fully as when it arises from a federal appropriation. It is also to be noted that the court in the Hall Case said that "The word 'guardian,' as used in the Act of Congress, is merely the designation of the person to whom the money granted may be paid for the use and benefit of the pensioners." A similar interpretation may be given to the words "personal representatives" in the Act now under consideration. Indeed this is the construc- tion given under the Workmen's Compensation Act in England. "If there is to be an executor or administrator, the whole sum awarded must be paid to him. He does not, however, receive it TO INTERSTATE EMPLOYEES 241 as personal representative of the deceased workman, nor is it part of the workman's estate, or liable for his debts. He holds it as a trustee under the statute." (Note to 1 Minton-Senhouse's Workmen's Com- pensation Cases, page 149.) As the fund is no part of the estate of the de- ceased workman, but is a fund which arises solely from the federal law, there is no applicability of state laws as to the devolution of such estate. When Congress has acted upon a matter within the scope of its power, all state legislation which in any manner conflicts with it must give way. It is inconceivable that the power of Congress to create a fund for the benefit of the widows and orphans of railroad employees, and to determine the beneficiaries of this fund, or to make the per- sonal representative a trustee for its distribution in the manner set forth in the statute, is in any manner impaired or affected by the laws of a state governing the distribution of the estate of the deceased. As held by the Supreme Court of the United States in Gulf, C. & S. F. R. Co. v. Hcfley, 158 U. S. 98, 15 Sup. Ct. Rep. 802: "When a state statute and a federal statute operate upon the same sub- ject-matter, and prescribe different rules concern- ing it, the state statute must give way." But here there is no real conflict. The estate of deceased is administered according to state law. 242 LIABILITY OF RAILROADS The fund arising from the federal statute is dis- tributed in accordance with the terms of that statute. If in order to sustain the constitution- ality of the Act, it were necessary to give to the term "personal representative" a significance other than its strictly technical meaning as execu- tor or administrator, such meaning might be given to it without violence to the terms. For a case where in an act of Congress the term "personal representatives" was interpreted to mean "heirs," see Emerson v. Hall, 13 Peters, 409. Although this also was a case of the granting of a gratuity or a donation by the Government itself upon grounds of public policy within its admitted powers, there does not seem to be much doubt that the same rule would be applicable where a new federal right is created upon grounds of public policy, and that such federal right is wholly within the regulation of Congress as to its terms and con- ditions, and as to the class who shall be benefi- ciaries. The subject-matter being within its regulative power, legislative authority as to all details exists in Congress without limitations other than those existing in the Constitution, and under such cir- cumstances its discretion as to the public policy involved is unlimited and uncontrolled by the laws or policy of the States. TO INTERSTATE EMPLOYEES 243 § 62. Railroad Held to Liability of Insurer. The opinion in the Hoxie Case suggests as objections to the constitutionality of the Act a number of hypothetical cases illustrative of pos- sible applications of the statute. A review of these illustrations will not now be made, but it is believed that they have been fully answered in the discussion of "the Causal Relation between Employment and Injury" on page 96, ante. Another objection raised by the court in the Hoxie Case is stated as follows: "It serves to confirm this conclusion [that the Act is unconsti- tutional] that the liability thrown upon the carrier by section 1 is not confined to damages resulting solely from the negligence of its officers, agents, or employees. It is fixed and complete if such negligence contribute in any de- gree to the injury, although it be partly due to the act or omission of a mere stranger. There can be no contribution between wrongdoers. If, there- fore, the carrier in such case could be held under the statute, his property would be taken to pay for wrong, mainly, perhaps, done by one with whom it stood in no contractual re- lations, and who, except for this particular Act, had no connection with commerce between the States." This objection is based upon the doctrine that there can be no contribution between wrongdoers. 244 LIABILITY OF RAILROADS But "wrongdoer" in the sense in which it is used in the rule of law quoted by the court means one who is guilty of an act malum in se. This rule has no application to the ordinary questions of negligence. The rule has been well stated to be that "where the offense is merely malum pro- hibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to ad- minister justice between them, although both parties are wrongdoers." Smith, Master and Servant, 5th ed., 195, citing Lowell v. Boston & Lowell Railroad Corporation, 23 Pickering 33. Railroad accidents seldom occur as the result of an act malum in se. They are rarely the result of an intentional wrongful act. They are almost without exception the result of some unintentional disregard of orders resulting from forgetfulness, or by some lapse of care for which the law has no higher characterization than "negligence." It is almost impossible to conceive of an accident to a railroad man in which it would be possible to charge his employer with culpable moral wrong within the meaning of the term malum in se. In any case not involving such moral wrong the right of contribution is left to the employer to enable him to recover from any third party whose act or negligence aided in producing the injury TO INTERSTATE EMPLOYEES 245 for which he is held to be primarily liable in an action brought under the Act. A statute of Nebraska open to all the objections as to a passenger which the Connecticut court here urges as to an employee, namely, that the railroad could be held to liability as an insurer for injury resulting where it was in no degree proved to be in fault, was expressly upheld by the Supreme ' Court of the United States in the case of Chicago, R. I & P. Ry. Co. v. Zernecke, 183 U. S. 582, 22 Sup. Ct. Rep. 229. § 63. Jurisdiction of State Courts. In the course of the opinion in the Hoxie Case it was said: "If it be assumed that Congress has power to prescribe a different rule for accidents occurring in or outside of Connecticut in the course of running a railroad train between States, and to create a new statutory action for its enforcement cognizable by the courts of the United States, it can not, in our opinion, require such an action to be entertained by the courts of this State." From the foundation of the government up to the present time it has, by the universal practice of all courts, been considered without very serious question that federal statutes are enforceable in state courts, both as a cause of action for a plaintiff and as a matter of substan- tive defense for a party sued in such courts. 246 LIABILITY OF RAILROADS Chancellor Kent, in his Commentaries (1 Kent's Com. 400), says: "In judicial matters the concur- rent jurisdiction of the state tribunals depends altogether upon the pleasure of Congress, and may be revoked and extinguished whenever they think proper, in every case in which the subject-matter can constitutionally be made cognizable in the federal courts; and that, without an express pro- vision to the contrary, the state courts will retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject-matter." Pomeroy, "Introduction to the Constitutional Law of the United States," 9th ed., page 621, § 743, says: " Strip the national government of an authority to apply a sanction commensurate with its power to legislate, and just so far we subtract from that legislation the necessary ele- ment of a command. Strip the government of the ability to make that sanction supreme, and we equally invalidate the authority of the legislative utterance. This attribute of supremacy would be destroyed by permitting the state courts, for example, to decide upon the effect of national laws, and by making their decisions, in the par- ticular State where made, of an equal authority with those pronounced upon the same subject by the national judges. This difficulty thus to be .•ipprehendcd from the action of state tribunals could only be prevented in one of two ways: either TO INTERSTATE EMPLOYEES 247 by removing from them the power to decide at all upon rights and duties which spring from the national legislation, and conferring the function exclusively upon the United States courts; or by permitting the state judiciary to exercise a juris- diction in such cases, but making that jurisdiction subordinate to the authority of the national courts, and rendering the local decisions reviewable by the United States judges, who could in this manner enforce their attribute of supremacy in relation to the matters under consideration. In theory the former of these plans would have been the more simple and perfect. But it was perhaps best, from some motives of expediency, that the Constitution should not expressly determine be- tween these two methods, but should clothe Con- gress with the power of making such a choice of the alternatives as should be found to promote the convenience of the people. Congress possesses such an authority; it might make all this juris- diction exclusive in the national courts, but has done so only in particular cases; it might suffer the state tribunals to exercise a complete concur- rent power, subject to an equally complete lia- bility to review, but has done so only to a limited extent. Whether Congress shall adopt one or the other alternative is a mere question of policy; it may do either." The Supreme Court of the United States decided 248 LIABILITY OF RAILROADS in the case of Teal v. Felton, 12 Howard 284, that a state court had jurisdiction to try an action brought against a postmaster who refused to deliver a newspaper on which there was "an initial," unless the addressee would pay letter postage, the action being founded on sections 13 and 30 of the Act of Congress passed in 1825, forbidding a writing or memorandum on a news- paper or other printed matter, pamphlet, or magazine transmitted by mail. The Court said, page 292, Mr. Justice Wayne delivering the opin- ion: "But it is said that the courts of New York had not jurisdiction to try the case. The objec- tion may be better answered by reference to the laws of the United States in respect to the ser- vices to be rendered in the transmission of letters and newspapers by mail, and by the Constitution of the United States, than it can by any general reasoning upon the concurrent civil jurisdiction of the courts of the United States and the courts of the States, or concerning the exclusive jurisdiction given by the Constitution to the former. " The United States undertakes, at fixed rates of postage, to convey letters and newspapers for those to whom they are directed, and the postage may be prepaid by the sender, or be paid when either reach their destination by the person to whom they are addressed. When tendered by the latter or by his agent, he has the right to the immediate TO INTERSTATE EMPLOYEES 249 possession of them, though he has not had before the actual possession. If then they be wrongfully withheld for the charge of unlawful postage, it is a conversion for which suit may be brought. His right to sue existing, he may sue in any court hav- ing civil jurisdiction of such a case, unless for some cause the suit brought is an exception to the general jurisdiction of the court. Now, the courts of New York having jurisdiction in trover, the case in hand can only be excepted from it by such a case as this having been made one of exclusive juris- diction in the courts of the United States, by the Constitution of the United States. That such is not the case we cannot express our view better than Mr. Justice Wright has done in his opinion in this case in the Court of Appeals. After citing the second section of the third article of the Con- stitution he adds: 'This is a mere grant of juris- diction to the federal courts, and limits the extent of their power, but without words of exclusion or any attempt to oust the state courts of concurrent jurisdiction in any of the specified cases in which concurrent jurisdiction existed prior to the adop- tion of the Constitution. The apparent object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary.' We will add, that the legislation of Congress, immediately after the Constitution was carried into operation, confirms the conclusion of 250 LIABILITY OF RAILROADS the learned judge. We find in the 25th section of the Judiciary Act of 1789, under which this case is before us, that such a concurrent jurisdiction in the courts of the States and of the United States was contemplated, for its first provision is for a review of cases adjudicated in the former, ' where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity.' " In the case of The Moses Taylor, 4 Wall. 411, 429, the Court said: " The Judiciary Act of 1789, in its distribution of jurisdiction to the several federal courts, recognizes and is framed upon the theory that in all cases- to which the judicial power of the United States extends, Con- gress may rightfully vest exclusive jurisdiction in the federal courts. It declares that in some cases, from their commencement, such jurisdiction shall be exclusive; in other cases it determines at what stage of procedure such jurisdiction shall attach, and how long and how far concurrent juris- diction of the state courts shall be permitted. Thus, cases in which the United States are parties, civil causes of admiralty and maritime jurisdiction, and cases against consuls and vice- consuls, except for certain offenses, are placed, from their commencement, exclusively under the cognizance of the federal courts. On the other TO INTERSTATE EMPLOYEES 251 hand, some cases, in which an alien or a citizen of another State is made a party, may be brought either in a federal or a state court, at the option of the plaintiff; and if brought in the state court may be prosecuted until the appearance of the de- fendant, and then, at his option, may be suffered to remain there, or may be transferred to the ju- risdiction of the federal courts. Other cases, not included under these heads, but involving ques- tions under the Constitution, laws, treaties, or authority of the United States, are only drawn within the control of the federal courts upon ap- peal or writ of error, after final judgment. By subsequent legislation of Congress, and particu- larly by the legislation of the last four years, many of the cases, which by the Judiciary Act could only come under the cognizance of the fed- eral courts after final judgment in the state courts, may be withdrawn from the concurrent jurisdic- tion of the latter courts at earlier stages, upon the application of the defendant. The constitu- tionality of these provisions cannot be seriously questioned, and is of frequent recognition by both state and federal courts." It is difficult to understand why the Connecti- cut court cites the case of Claflin v. Houseman, 93 U. S. 130, 136, as authority for its position in the Hoxie Case, for a careful consideration of the opinion of Mr. Justice Bradley in the Claflin 252 LIABILITY OF RAILROADS Case shows conclusively that the opinion affords no basis for the contention that the state court is not authorized and required to enforce federal statutes. In this opinion Mr. Justice Bradley said: "The general question whether state courts can exercise concurrent jurisdiction with the federal courts in cases arising under the Constitution, laws, and treaties of the United States has been elaborately discussed both on the bench and in published treatises, sometimes with a leaning in one direction and sometimes in the other; but the result of these discussions has, in our judgment, been, as seen in the above cases, to affirm the jurisdiction, where it is not- excluded by express provision or by incompati- bility in its exercise arising from the nature of the particular case. "When we consider the structure and true rela- tions of the federal and state governments there is really no just foundation for excluding the state courts from all such jurisdiction. "The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the state laws are. "The United States is not a foreign sovereignty, as regards the several States, but is a concurrent and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct TO INTERSTATE EMPLOYEES 253 sovereignties, having concurrent jurisdiction in the State, — concurrent as to place and persons, though distinct as to subject-matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sov- ereignty competent to hear and determine such kind of rights and not restrained by its constitu- tion in the exercise of such jurisdiction. Thus a legal or equitable right acquired under state laws may be prosecuted in the state courts, and also, if the parties reside in different States, in the fed- eral courts. "So rights, whether legal or equitable, acquired under the laws of the United States may be prose- cuted in the United States courts, or in the state courts competent to decide rights of the like char- acter and class; subject, however, to this quali- fication, that where a right arises under a law of the United States, Congress may, if it see fit, give to the federal courts exclusive jurisdiction. "See remarks of Mr. Justice Field in The Moses Taylor, 4 Wall. 429, and Story, J., in Martin v. Hunter Lessee, 1 Wheat. 334, and Mr. Justice Swayne in Ex parte McNeil, 13 Wall. 236. "This jurisdiction is sometimes exclusive by ex- press enactment and sometimes by implication. " If an Act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its en- forcement, there is no reason why it should not be 254 LIABILITY OF RAILROADS enforced, if not provided otherwise by some Act of Congress, by a proper action in a state court. "The fact that a state court derives its exist- ence and functions from the state laws is no reason why it should not afford relief ; because it is subject also to the laws of the United States, and is just as much bound to recognize these as opera- tive within the State as it is to recognize the State laws. The two together form one system of juris- prudence which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. "The disposition to regard the laws of the United States as emanating from a foreign jurisdiction is founded on erroneous views of the nature and re- lations of the state and federal governments. "It is often the cause or the consequence of an unjustifiable jealousy of the United States gov- ernment, which has been the occasion of disastrous evils to the country. "It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by Chief Justice Taney in the case of Ableman v. Booth, 21 How. 506, and hence state courts have ho power to revise the action of the federal courts, TO INTERSTATE EMPLOYEES 255 nor the federal the state, except where the fed- eral Constitution or laws are involved. But this is no reason why state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their juris- diction is competent, and not denied." In Ex parte Siebold, 100 U. S. 371, the Court said: "The power of Congress, as we have seen, is paramount, and may be exercised at any time and to any extent which it deems expedient; and so far as it is exercised and no further the regula- tions effected supersede those of the State which are inconsistent therewith. "As a general rule, it is no doubt expedient and wise that the operations of the state and national governments should, as far as practicable, be con- ducted separately, in order to avoid undue jeal- ousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. " We cannot yield to such a transcendental view of state sovereignty. The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity. "There are very few subjects, it is true, in which 256 LIABILITY OF RAILROADS our system of government, complicated as it is, requires or gives room for conjoint action between the state and national sovereignties. Generally the powers given by the Constitution to the gov- ernment of the United States are given over distinct branches of sovereignty from which the state governments, either expressly or by neces- sary implication, are excluded. "But in this case expressly, and in some others by implication, as we have seen in the case of pilot- age, a concurrent jurisdiction is contemplated; that of the State, however, being subordinate to that of the United States, whereby all question of precedency is eliminated." If a federal right cannot be the basis of a plain- tiff's claim in a state court; if those courts derive their power and authority and compensation from the States for the purpose of deciding only con- troversies arising under the law of the State, written and unwritten, — then a defense based upon a federal right would be equally unenforce- able in said courts. If they refuse to try federal questions for a plaintiff because they are without jurisdiction, how can they consent to try a federal question when asserted as a ground of defense by the party proceeded against? The frequent exercise of the power of removal to the federal court, from 1789 down to the present day, of cases from the state courts to the federal TO INTERSTATE EMPLOYEES 2.17 courts, because such cases involve federal questions, clearly indicates that the parties to such causes in the state courts before whom such cases were pending all considered that such actions were not demurrable because based on a federal right; that the fact that the federal right was involved was not a defense, but merely a cause for removal. If, in those cases where defendants have secured the removal of causes pending in State courts involv- ing a federal right, they had an absolute defense upon the ground that the State court was not required to try the federal question, it is remark- able that such claim was not asserted as a de- fense, but was merely used as a basis for removal under a federal statute. If a state court may decline jurisdiction of a case involving a federal right, it may, by a parity of reasoning, decline to hear a case arising under the laws of a sister State, yet the comity between States has always recognized the rights of a party when the parties to the cause were otherwise within the jurisdiction of a state court, to base his right to recover under the laws of a sister State or of a foreign nation. Connecticut now refuses comity to the federal power which would be and is usually and without cavil extended to foreign powers. If it were a mere matter of comity, the States, in deference to the practice in the fed- eral courts, whenever consistent, to entertain juris- 258 LIABILITY OF RAILROADS diction of matters arising under state statutes, should recognize and enforce in their respective courts, whenever consistent, matters and rights accruing under the federal law. "The Constitution and the laws of Congress passed in pursuance thereof are the supreme law of the land." But it would not be supreme if any- right given by it could be overridden, either by state enactment or by judicial decision. In Higgins v. Central New England and W. R. Co., 155 Mass. 176, 180, the Supreme Judicial Court of Massachusetts, after referring to transi- tory causes of action which did not exist at com- mon law, but which were created by the statute of another State, and passed to the administrator of the deceased, said: "When an action is brought upon it here the plaintiff is not met by any diffi- culty upon these points. Whether our courts will entertain it depends upon the general principles which are to be applied in determining the question whether actions founded upon the laws of other States shall be heard here. These principles re- quire that, in case of other than penal actions, the foreign law, if not contrary to our public policy or to abstract justice or pure morals, or calculated to injure the State or its citizens, shall be recognized and enforced here, if we have jurisdiction of all necessary parties, and if we can see that, consist- ently with our own forms of procedure and law of TO INTERSTATE EMPLOYEES 259 trials, we can do substantial justice between the parties." This is the rule of comity usually recognized in the application of foreign law, but the federal power is in no sense foreign to the States. As was said by the Supreme Court of the United States in the case of Defiance Water Company v. Defiance, 191 U. S. 184, 24 Sup. Ct. Rep. 63, "Moreover, the state courts are perfectly com- petent to decide federal questions arising before them, and it is their duty to do so," citing Robb v. Connolly, 111 U. S. 624, 637, 4 Sup. Ct. Rep. 544; Missouri Pacific Ry. Co. v. Fitzgerald, 160 U. S. 556, 583, 16 Sup. Ct. Rep. 389. As was said by Mr. Justice Shiras, in comment- ing upon the concurrent jurisdictional power of the state and federal courts, in the case of Murray v. Chicago & N. W. Ry. Co., 62 Fed. Rep. 24; "A further point is made in support of the de- murrer, to the effect that this court succeeds only to the jurisdiction of the state court in which the action was originally brought, and that state courts have no jurisdiction over cases arising out of interstate commerce, the argument being that, as the State cannot legislate touching interstate commerce, the state courts are without power to determine cases of the like character. This posi- tion is not well taken. The limitations upon the legislative power of the nation and of the several 260 LIABILITY OF RAILROADS States do not necessarily apply to the judicial branches of the national and state governments. The legislature of a State cannot abrogate or modify any of the provisions of the federal Con- stitution nor of the Acts of Congress touching matters within congressional control, but the courts of the State, in the absence of a prohibitory provision in the federal Constitution or Acts of Congress, have full jurisdiction over cases arising under the Constitution and laws of the United States. The courts of the States are constantly called upon to hear and decide cases arising under the federal Constitution and laws, just as the courts of the United States are called upon to hear and decide cases arising under the law of the State, when the adverse parties are citizens of different States. The duty of the courts is to explain, apply, and enforce the existing law in the particular cases brought before them. If the law applicable to a given case is of federal origin, the legislature of a State cannot abrogate or change it, but the courts of the State may apply and enforce it; and hence the fact that a given subject, like interstate commerce, is beyond state legislative control, does not, ipso facto, prevent the courts of the State from exercising jurisdiction over cases which grow out of this commerce. Had this action remained in the state court in which it was originally brought, that court would have ( TO INTERSTATE EMPLOYEES 261 had jurisdiction to hear and determine the issues between the parties, because Congress has not enacted that jurisdiction over cases of this char- acter is confined exclusively to the courts of the United States, and therefore the jurisdiction of the state court was full and complete." In the case of Brown v. Walker, 161 U. S. 591, 606, 16 Sup. Ct. Rep. 644, Mr. Justice Brown, delivering the opinion of the majority of the court, said: "There is no such restriction, how- ever, upon the applicability of federal statutes. The Sixth Article of the Constitution declares that ' This Constitution, and the laws of the United States which shall be made in pursu- ance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' "The language of this article is so direct and explicit, that but few cases have arisen where this court has been called upon to interpret it, or to determine its applicability to state courts. But, in the case of Stewart v. Kahn, 11 Wall. 493, 505, the question arose whether a debt contracted by a citizen of New Orleans, prior to the breaking out of the Rebellion, was subject in a state court to the statute of limitations passed by Congress June 262 LIABILITY OF RAILROADS 11, 1864, declaring that as to actions which should accrue during the existence of the Rebellion, against persons who could not be served with process by- reason of the war, the time when such persons were beyond the reach of judicial process should not be taken or deemed to be any part of the time limited by law for the commencement of such actions. The court held unanimously that the debt was subject to this Act, and in delivering the opinion of the court Mr. Justice Swayne said : ' But it has been insisted that the Act of 1864 was intended to be administered only in the federal courts, and that it has no application to cases pending in the courts of the State. The language is general. There is nothing in it which requires or will war- rant so narrow a construction. It lays down a rule as to the subject, and has no reference to the tribunals by which it is to be applied. A dif- ferent interpretation would defeat, to a large ex- tent, the object of its enactment. . . . The judi- cial anomaly would be presented of one rule of property in the federal courts, and another and a different one in the courts of the States, and debts could be recovered in the former which would be barred in the latter.' This case was affirmed in United States v. Wiley, 11 Wall. 508; and in May- field v. Richards, 115 U. S. 137, 5 Sup. Ct. Rep. 1187. See also Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. Rep. 170, 312. The same principle has TO INTERSTATE EMPLOYEES 263 also been applied in a number of cases turning upon the effect to be given to treaties in actions arising in the state courts. Foster v. Neilson, 2 Pet. 253; The Cherokee Tobacco, 11 Wall. 616; The Head Money Cases, 112 U. S. 580, 5 Sup. Ct. Rep. 247. . . . " The Act in question contains no suggestion that it is to be applied only to the federal courts. It declares broadly that ' no person shall be ex- cused from attending and testifying . . . before the Interstate Commerce Commission ... on the ground . . . that the testimony . . . required of him may tend to criminate him, etc. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, etc.' It is not that he shall not be prosecuted for or on account of any crime con- cerning which he may testify, which might pos- sibly be urged to apply only to crimes under the federal law and not to crimes, such as the passing of counterfeit money, etc., which are also cogniz- able under state laws ; but the immunity extends to any transaction, matter, or thing concerning which he may testify which clearly indicates that the immunity is intended to be general, and to be applicable whenever and in whatever court such prosecution may be had." In the case of Chesapeake & Ohio Ry. Co. v. 264 LIABILITY OF RAILROADS American Exchange Bank, 92 Va. 495, 23 S. E. Rep. 935, an action for damages on account of injury to a shipment of live stock being trans- ported over the defendant's line of road, the Court said: "Shearman and Redfield, in their work on Negligence, say: 'The violation of a statute or ordinance regulating the speed of vehicles, horses, or trains, or requiring special signals or warnings to be given upon their ap- proach, or light to be shown, is such a breach of duty as may be made the foundation of an action by any person belonging to the class intended to be protected by such a regulation, provided he is specially injured thereby. The violation of a statute of the United States may be made the basis of an action of negligence in a state court ' "We have no doubt that one of the objects of section 4386 of the Revised Statutes of the United States was to prevent loss to the owners of live stock which would result from its being carried long distances by common carriers without food, water and rest. The plaintiff belongs to the class intended to be protected thereby, and has the right to recover from the defendant the damages which were caused, if any, by its viola- tion of the statute, and, having such right, he could bring his action in the state court." In the case of Bradbury v. Chicago, R. I. & P. TO INTERSTATE EMPLOYEES 265 Ry. Co., (Iowa) 128 N. W. Rep. 1, Mr. Justice Ladd, speaking for the court, said: "The matter of jurisdiction is not touched in the Act of Con- gress, and it is now well settled that state courts may exercise concurrent jurisdiction with the federal courts in all cases arising under the Con- stitution, laws and treaties of the United States, unless exclusive jurisdiction has been conferred, expressly or by necessary implication, on the federal courts. Claflin v. Houseman, 93 U. S. 30; Raisler v. Oliver, 97 Ala. 714, 12 So. Rep. 238; Wilcox v. Luco, 118 Cal. 642, 45 Pac. Rep. 676, 50 Pac. Rep. 758; Schuyler Nat' I Bank v. Bollong, 24 Neb. 827, 40 N. W. Rep. 414; Bletz v. Columbia Nafl Bank, 87 Pa. St. 92; Brincker- hoff v. Bostwick, 88 N. Y. 60; People v. Welch, 141 N. Y. 273. . . . "An illustration of the exercise of exclusive jurisdiction by the federal courts will be found in Copp v. Louisville & N. R. Co., 43 La. Ann. 511, 9 So. Rep. 441, where a plea to the jurisdiction of the state court was sustained on the ground that the Act of Congress on which the action for damages was based directed that it be brought in the United States courts. In Hoxie v. New York, N. H. & H. R. Co., the Supreme Court of Errors of Connecticut reached the conclusion that, by fair implication, the Act of Congress ex- cludes jurisdiction of the state courts and in any 266 LIABILITY OF RAILROADS event the state court was under no obligation to enforce the rights therein created. The last point appears to have been considered as though in- volving a question of comity merely, regardless of the convenience and propriety of enforcing all rights and redressing all wrongs within the jurisdiction of the local courts. "The prevailing rule is that where a cause of action accrues by virtue of the statute of any State, the action may be maintained in any other State if not contrary to the public policy or law of the place where the suit is brought. Boyce v. Railway, 63 Iowa 70, 18 N. W. Rep. 673; Morris v. Railway, 65 Iowa 727, 23 N. W. Rep. 143. See cases collected in note to Reeves v. Railway, 70 L. R. A. 513. "In such cases the law of the place where the right was acquired or the liability incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the State where the action is brought. Herrick v. Railway, 31 Minn. 1, 16 N. W. Rep. 413. "Even where the cause of action arises in a foreign country, suits may be maintained in our courts though jurisdiction can be declined, but this is seldom done unless from fear of inability to do full justice through lack of knowledge of the laws of the place where the cause of action TO INTERSTATE EMPLOYEES 267 arose. Mason v. The Blaireau, 2 Cranch 240 Roberts v. Dunsmuir, 75 Cal. 203, 16 Pac. Rep. 782 Great Western R. Co. v. Miller, 19 Mich. 305 Cofrode v. Gardner, 79 Mich. 332, 44 N. W. Rep. 623; Evey v. Railway, 81 Fed. Rep. 294. The reasons which induce state courts to exercise jurisdiction of causes of action arising in a for- eign country or under legislation of another State should be quite as persuasive in favor of assuming jurisdiction over causes of action arising under the statutes of the United States, with this in addition, that these are the laws of the very people the jurisdiction of whose courts is invoked. See 11 Cyc. 996. If a cause of action has become fixed and a legal liability incurred, the doors of the courts of this State should not be closed to the prosecution of such cause of action, regardless of whether the same may have arisen under the statutes of another State, an Act of Congress, or the laws of a foreign country, unless to en- force it would be contrary to the laws or public policy of the State or complete justice probably could not be done. Unless the Act of Congress should be construed to confer exclusive juris- diction on the federal courts, or the mode of procedure is such that the state courts cannot safely undertake to enforce the liability defined, there seems no ground for declining to exercise a jurisdiction fully approved by the authorities. 268 LIABILITY OF RAILROADS The statute is silent concerning jurisdiction, but it is said that the rules of practice prescribed therein and the direction as to who shall be the beneficiaries thereunder are so inconsistent with the state laws as to indicate the congressional intent that redress may be had in the federal courts alone. In order to dispose of this objec- tion it will be necessary to set out the main pro- visions of the- Act. [Citing full text of §§ 1,3, 4 and 6 of the Act of 1908. See Appendix, pp. 319, 320 and 321.] " It is manifest from the mere reading that this Act effects quite as important a change in the trial of such causes in the federal courts as would be possible in the state courts. Thus the federal decisions are harmonious on the proposition that the negligence of complainant which contributes proximately to the injury will defeat the recovery of damages therefor. So, too, in the absence of local statutes, the fellow-servant doctrine and that of assumption of risks have been broadly applied in all federal courts. Hereafter all of these rules are to be modified or eliminated where the in- juries are such as contemplated in the above Act. If inconvenience and confusion would result from an attempt to enforce the Acts in the state courts, like consequences will be the outcome of a similar undertaking in the courts of the United States. Let us examine the several sections and ascertain TO INTERSTATE EMPLOYEES 269 the alleged inconsistencies which are said to pre- clude the maintenance of actions based thereon in the state courts. No one, we apprehend, would say that the state courts are not compe- tent to entertain suits by the persons authorized by section 1 to recover damages or to distribute those recovered as specified. Under the statutes of this State the suit is prosecuted in the name of the administrator, where death is alleged to have resulted from wrongful act, and anything re- covered distributed as personal property among the heirs. It goes to the surviving spouse and children, if any there are, and if not, to the parents of the deceased, precisely as under the federal statute. In event there are neither spouse and children, nor parents of deceased, the remoter heirs are entitled thereto under the State statute, while under this Act the damages go to the next of kin dependent upon deceased. As the state statute must give way to that of Congress, no in- consistency is involved. All essential is that effect be given to the latter as though the former were not on the statute book. Nor can it be said that this involves an interference by Congress with the distribution of an estate through the probate court of the State. The cause of action was created by Congress in the exercise of its power to regulate commerce among the several States, and it is elementary that in doing so it 270 LIABILITY OF RAILROADS might determine who was entitled to maintain the same and for whose benefit. The admin- istrator is not required thereby to institute pro- ceedings; he may do so, and in that event can recover only for the benefit of the person entitled under the Act to the damages. The administrator therein sustains the relation to the beneficiaries like that of trustee to his cestui que trust, and it is of little concern whether he shall distribute the damages recovered in pursuance of an order of the court wherein recovered or in the appropriate probate court. Surely no court would permit an administrator, after recovering damages under a statute specifically prescribing who is entitled thereto, to divert the money elsewhere. " It must be borne in mind that this Act does not relate to the distribution of the personal property of an estate. The cause of action does not belong to the estate of the deceased person, but to certain classes for whose benefit the admin- istrator is authorized to recover damages, and we see no ground for saying this is contrary to our law or its policy. In a few States, notably Connecti- cut, the fellow-servant doctrine is still applied in cases of injury caused in the use and operation of railways, and it seems to have been thought in the Hoxie Case that for a state court to apply that doctrine in causes based on injuries received in intrastate commerce and to proceed in actions TO INTERSTATE EMPLOYEES 271 based on the federal statute on the theory that the master is responsible for the acts of the fellow-servant would create confusion, ' setting up in the same tribunal different standards of right and policy and practice.' More than fifty years ago the fellow-servant doctrine was eliminated by the legislature of this State wherever the injury was occasioned by the negligent act of the fellow- servant engaged in the use and operation of a railway, and though that doctrine has been con- tinually applied in all cases involving injuries suffered in other employments, little difficulty has been experienced in discriminating between situations exacting the application of the different rules. Indeed, the situation of employees en- gaged in the operation of railways ordinarily is such that they can exert little direct or personal influence upon each other in discharging their respective duties, and their opportunities for guarding against the negligent acts of one another are so limited that in many if not in most of the states, laws have been enacted declaring the master liable for the negligent acts of the ser- vant when engaged in the use and operation of railways, even though the injured party be a fellow-servant. " And we apprehend that the design of Congress was to furnish this measure of protection to em- ployees engaged in interstate commerce in those 272 LIABILITY OF RAILROADS States where, for reasons such as are suggested in the Hoxie Case, none have been provided by local legislation. Section 4 is somewhat similar to a statute of this State relating to assumption of risks. (Ch. 219 Acts 33rd Gen. Assem.) And the only difficulty in entertaining suits for liability under the Act of Congress, as it seems to us, will develop in the construction and applica- tion of section 3. Under the decisions of this State contributory negligence, if the proximate cause, has always been held to defeat recovery. But such has been the rule in the federal courts and, as said, is now, save as modified by this Act. No greater difficulty will confront the state courts in applying this or other sections of the Act than the courts of the United States, and for this reason there is no ground for inferring from the somewhat radical nature of the Act that it was the intent of Congress to confer exclusive juris- diction on the federal courts. With all due re- spect for the eminent court holding otherwise in the Hoxie Case, we are not persuaded by the reasoning of its opinion. Differences between the federal and local courts no greater than those between different statutes or laws of the same State do not alone justify the conclusion that Congress intended to deny jurisdiction of the state courts nor furnish a satisfactory reason for refusing that comity due to sovereign govern- TO INTERSTATE EMPLOYEES 273 ment. Nor does it appear to have convinced the Congress, for an Act approved April 5, 1910, 36 Stat. 291, declared the jurisdiction of the United States courts under this Act concurrent with that of the state courts, and further declared that 'no case arising under this Act and brought in any- state court of competent jurisdiction shall be removed to any court of the United States.' " For a further discussion of this topic see Senate Report No. 432, 61 Congress, 2 Session, March 22, 1910; Owens v. Chicago G. W. Ry. Co., (Minn.) 128 N. W. Rep. 1011; St. Louis, I. M. & S. Ry. Co. v. Hesterly, (Ark.) 135 S. W. Rep. 874, and cases there cited. § 64. Justice and Policy of Fellow-Servant Rule. The Hoxie Case refers to the rule that a servant cannot recover from his master for injuries re- ceived from the negligence of a fellow-servant acting in the same line of employment as a "rule of justice" and a "rule of policy, " and as " resting upon considerations of right and justice that have been generally accepted by the people of the United States." In the case of Burke v. Norwich & W. R. Com- pany, 34 Conn. 474, 479, the Court said: "The principle relied upon by the defendants, that a master is not liable to a servant for an injury to 274 LIABILITY OF RAILROADS him occasioned by the misconduct or negligence of a fellow-servant, has been so often recog- nized both in this country and in England that it must now be considered as settled law. Two reasons are usually assigned for the rule: 1st, That the employed must be supposed to have contracted with reference to the perils of the business, including those which may arise from the character and conduct of his fellow-employees ; and 2d, That public policy requires that each servant should be influenced by its operation to be not only careful of his own doings, but as watchful as possible over the acts of his asso- ciates. Farwell v. Boston & Worcester R. Company, 4 Met. 49. "The justness of this reasoning has been ques- tioned by high judicial authority. Little Miami R. Co. v. Stevens, 20 Ohio 435. However plausible may be the theory, it is very doubtful whether, in fact, a spinner in a factory or a fire- man on a railroad ever made an examination into the condition of the machinery, the mode of con- ducting the business, or the character and habits of the operative, for the purpose of ascertaining the extent of his risk as an element in calculating the proper amount of his wages. A passenger in a railroad car may well be presumed to have a vivid consciousness of his risk, but it has never been understood that he contracts with reference TO INTERSTATE EMPLOYEES 275 to it when he buys his ticket, so as to be his own insurer. Again, a principal is responsible to an employee for his own negligence, — why should he not be liable for that of his agent over whom the employee has no control, and of whom he may have no knowledge. "With respect to considerations of policy, it is by no means certain that the public interests would not be best subserved by holding the superior, with his higher intelligence, his surer means of information, and his power of selecting, directing, and discharging subordinates, to the strictest accountability for their misconduct in his service, whoever may be the sufferer from it." Among the decisions of the Supreme Court of Errors of Connecticut may be found strong state- ments criticising the defense of common employ- ment, and completely answering the suggestion in the Hoxie Case, that the rule rests upon con- siderations of justice or policy. In the case of Zeigler v. Danbury & Norwalk Railroad Company, 52 Conn. 543, 556, the majority of the court says: "The defense of common employment has little of reason or principle to support it, and the ten- dency in nearly all jurisdictions is to limit rather than enlarge its range. It must be conceded that it cannot rest on reasons drawn from consider- ations of justice or of public policy." 276 LIABILITY OF RAILROADS PART III The Safety Appliance Acts l CHAPTER XIV ABSOLUTE mandatory obligation to comply WITH SAFETY APPLIANCE ACTS § 65. Liability of Carriers under Act is Absolute. The relief of railroad men from the burden of the common-law rules was begun when Senator 1 The following is a list of actions for death or personal injuries in which the Safety Appliance Act has been applied or construed : Briggs v. Chicago & N. W. Ry. Co., 125 Fed. Rep. 745; Brink- meier v. Missouri Pac. Ry. Co., 105 Pac. Rep. 221; Carson v. Southern Ry. Co., 46 S. E. Rep. 525; Chicago Junction Ry. Co. v. King, 169 Fed. Rep. 372; Chicago, M. & St. P. Ry. Co. v. Voelker, 129 Fed. Rep. 522; Cleveland, C. C. & St. L. Ry. Co. v. Baker, 91 Fed. Rep. 224; Coleman, State ex rel. v. Kelly, 70 L. R. A. 450; Coley v. North Carolina R. Co., 128 N. C. 534, 39 S. E. Rep. 43; Crawford v. New York C. & H. R. R. Co., 10 Am. Neg. Rep. 166; Dawson v. Chicago, R. I. & P. Ry. Co., 114 Fed. Rep. 870; Denver & R. G. R. Co. v. Arrighi, 129 Fed. Rep. 347; Denver & R. G. R. Co. v. Gannon, 90 Pac. Rep. 853; Devine v. Illinois Central R. Co., 156 111. App. 369; Donegan v. Baltimore & A. Y. Ry. Co., 165 Fed. Rep. 869; Elmore v. Seaboard Air Line Ry. Co., 41 S. E. Rep. 786; Erie R. Co. v. Russell, 183 Fed. Rep, 722; Gilbert v. Burlington, C. R. & N. Ry. Co., 128 Fed. Rep. 529; Greenlee v. Southern Ry. Co., 30 S. E. Rep. 115; Harden v. No. TO INTERSTATE EMPLOYEES 277 White of Louisiana, now Chief Justice of the United States, offered in the Senate an amend- Carolina R. Co., 40 S. E. Rep. 184; Hohenleitner v. Southern Pacific Co., 177 Fed. Rep. 796; International & G. N. Ry. Co. v. Elder, 99 S. W. Rep. 856; Johnson v. Gr at Northern Ry. Co., 178 Fed. Rep. 643; Johnson v. Mammoth Vein Coal Co., 114 S. W. Rep. 722; Johnson v. Southern Pacific Co., 196 U. S. 1; Kansas City M. & B. R. Co. v. Flippo, 35 Southern Rep. 457; Kelleyv. Great Northern Ry. Co., 152 Fed. Rep. 211; Larabeev. New York, N. H. & H. R. Co., 66 N. E. Rep. 1032; Lewis v. Pennsylvania R. Co., 69 Atl. Rep. 821; Luken v. Lake Shore & M. S. Ry. Co., 154 111. App. 550, 248 111. 377; Lyon v. Charleston & W. C. Ry. Co., 56 S. E. Rep. IS; Mallott v. Hood, 66 N. E. Rep. 247; Mobile, J. & K. C. R. Co. v. Bromberg, 37 Southern Rep. 395; Myrtle v. Nevada C. & O. Ry. Co., 137 Fed. Rep. 193; Nichols v. Chesapeake & O. Ry. Co., 105 S. W. Rep. 481; Norfolk & W. Ry. Co. v. Hazelrigg, 170 Fed. Rep. 551; Phila- delphia & R. Ry. Co. v. Winkler, 56 Atl. Rep. 112; Plummer v. Northern Pacific Ry. Co., 152 Fed. Rep. 206; Rio Grande South- ern R. Co. v. Campbell, 96 Pac. Rep. 986; Rosney v. Erie R. Co., 135 Fed. Rep. 311; St. Louis, I. M.