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(Circuit Court, E. D. Arkansas, E. D. March 13, 1907.) 1. CONSTRUCTION-PRESUMPTIONS.

The presumption that statutes are constitutional will be indulged in until the contrary is clearly shown.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional


Congress has the power, under the conimerce clause of the Constitution, to legislate for the safety and protection of employés engaged in interstate commerce, whether the transportation be on water or on land.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Commerce, & 3.) 3. SAME-PERSONAL INJURIES.

It is within the power of Congress, under the commerce clause, to regulate the liability of a common carrier to its employés for personal injuries

received while engaged in interstate transportation. 4. SAME-REGULATION OF COMMERCE.

The act of Congress of June 11, 1906, C. 3073, 34 Stat. 232, relating to the liability of common carriers engaged in commerce between the states to their employés, as stated in its title, commonly called the “Federal Employers' Liability Act," is a regulation of interstate commerce, and is with

in the Coustitutional power of Congress to regulate commerce. 5. STATUTES-MASTER AND SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT-IN


The federal einployers' liability act is not void because, as alleged, it applies equally to intrastate and interstate commerce, as its provisions are separable, so as to be valid when invoked by an employé engaged ou a train actually employed in interstate traffic. The title of the act, which is the best summary of its purpose, removes any ambiguity that may be in the text.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, $8 58


The federal employers' liability act is remedial and not penal, which fact takes it out of the rule laid down in the Trade-Mark Cases, 100 U.



The plaintiff in this case, who alleges that he was engaged at the time of the accident on a train engaged in interstate comunerce, is within the rule of law that courts will not listen to an objection of unconstitutionality of an act by a party whose right it does not affect in the particular case on trial.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, $$ 39, 40.]

(Syllabus by the Court.) Armstrong & Gravette and J. T. Coston, for plaintiff. W. J. Orr, for defendant.

TRIEBER, District Judge. The constitutionality of the act of Congress of June 11, 1906, c. 3073, 34 Stat. 232, generally known as the "Employers' Liability Act," is attacked upon two grounds: First, that Congress has no power to create and enforce liabilities growing out of the employment of servants by carriers, even if those carriers be engaged in interstate commerce; and, second, if it has such power, the language of the act is so general as to include intrastate commerce, and both are so inseparably connected as to make the whole act unconstitutional.

In passing upon the constitutionality of an act, the courts are governed by certain well-settled rules. Statutes are always presumed to be constitutional, and this presumption will be indulged until the contrary is clearly shown; statutes will be so construed, so far as it is possible to do so, that they shall harmonize with the Constitution, to the end that they may be sustained. On the other hand, if the statute is clearly unconstitutional, the duty of the court is to so declare.

1. The power to regulate commerce among the several states is granted to Congress by the Constitution in terms as absolute as is the power to regulate commerce with foreign nations. Brown v. Houston, 114 U. S. 627, 630, 5 Sup. Ct. 1091, 29 L. Ed. 257; Bowman v. Railway Co., 125 U. S. 465, 482, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700; Crutcher v. Kentucky, 141 U. S. 47, 58, 11 Sup. Ct. 851, 35 L. Ed. 6-19; Pittsburg Coal Co. v. Bates, 156 U. S. 577, 578, 15 Sup. Ct. 415, 39 L. Ed. 538.

"Definitions as to what constitutes 'interstate commerce' are not easily given so that they shall clearly define tbe full meaning of the term. We know from the cases decided in this court that it is a tern of very large significanee. It comprehends, as it is said, intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale, and exchange of commodities between the citizens of different states, and the power to regulate it embraces all the instruments by which such commerce may be conducted." Hopkins v. United States, 171 U. S. 578, 597, 19 Sup. Ct. 40, 47 (43 L. Ed. 290).

Ever since the decision of Gibbons v. Ogden, 22 U. S. 1, 6 L. Ed. 23, it has been held to be a term of the largest import, comprehending intercourse for the purposes of trade in any and all its forms, including transportation. For a full collation of the authorities on that subject, see the Lottery Cases, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492.

Has Congress under that provision of the Constitution, section 8 of article 1, the power to enact legislation regulating the employment of those necessarily required to manage the vehicles necessary for the transportation of interstate commerce? That Congress has assumed, ever since the adoption of the Constitution, that, under the commerce clause, it possesses the power to regulate the employment of and legislate for the protection of those engaged on the vehicles used for interstate transportation, is evidenced by the fact that the first Congress which met after the adoption of the Constitution enacted a statute for the regulation and protection of those employed on merchant.vessels, thien practically the only means of transporting passengers, as well as goods and merchandise, in interstate or foreign commerce. By the act of July 20, 1790, 1 Stat. 131, the employment of seamen on the vessels engaged in interstate commerce was regulated, and from time to time Congress has added to and changed these acts. The various statutes may be found on pages 3061 to 3125, U. S. Comp. St. 1901. As late as 1852 Mr. Justice Curtis, in Cooley v. Board of Wardens, 53 U. S. 299, 361, 13 L. Ed. 996, stated that the validity of these acts had never been questioned.

That the power of Congress to regulate navigation depends solely on the commerce clause is beyond question. In Gibbons v. Ogden the question before the court was whether an act of the Legislature of the state of New York granting an exclusive right to navigate the waters of the state was repugnant to the national Constitution, and its invalidity was placed solely on the ground that navigation is commerce and therefore within the grant to Congress “to regulate commerce with foreign nations and among the several states and with the Indian tribes." In every case decided by the Supreme Court, as well as every other national court since then, the validity or invalidity of every act of Congress in any wise affecting navigation has been determined solely upon the commerce clause. To cite all these cases would serve no useful purpose, but an examination of a few of the most important cases will show that this is one of the few rules of law upon which there is not even an apparent conflict among the decisions of the courts. United States v. Coombs, 12 Pet. 78, 9 L. Ed. 1004; Cooley v. Board of Wardens, 53 U. S. 299, 13 L. Ed. 996; Pennsylvania v. Wheeling Bridge Co., 59 U. S. 421, 15 L. Ed. 435; Foster v. Davenport, 63 U. S. 244, 16 L. Ed. 248; Gilman v. Philadelphia, 70 U. S. 713, 18 L. Ed. 96; The Daniel Ball, 77 U. S. 557, 19 L. Ed. 999; Miller v. Mayor, 109 U. S. 385, 3 Sup. Ct. 228, 27 L. Ed. 971; Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. 821, 47 L. Ed. 1002; North Bloomfield, etc., Co. v. United States, 88 Fed. 664, 32 C. C. A. 84; The Chusan, 2 Story, 455, Fed. Cas. No. 2,717.

Mr. Justice Story, in his great work on the Constitution (section 1062), says on that subject:

"If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring 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 always been 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 convention should not so have understood the word 'commerce' as embracing it. Indeed, to construe the power so as to impair its efficiency would defeat the very object for which it was introduced into the Constitution, for there cannot be a doubt that to exclude navigation and intercourse 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 Chusan, Mr. Justice Story, in speaking of that subject, says:

"The power to regulate commerce includes the power to regulate navigation with foreign nations and among the states, and it is an exclusive power in Congress. This, I conceive, has been fully established by the Supreme Court in Gibbons v. Ogden, 9 Wheat. (U. S.) 193. 6 L. Ed. 23 and the doctrine stands, as I conceive, upon grounds which cannot be shaken without endangering the interests of the whole Union, if not the very existence 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 respect does the exercise of a power to regulate, control, or extinguish the

llens glven by the maritime law for materialmen upon foreign vessels difer from the power to regulate the sbipping of seamen or the navigation of foreign Fessels? Each is a regulation of foreign commerce or commerce among the states."

In The Daniel Ball the act of Congress of July 7, 1838, 5 Stat. 304, and the amendatory act of August 30, 1852, 16 Stat. 61, imposing a penalty on steam vessels to transport passengers or freight on any of the navigable waters of the United States without first having procured a license and complied with other provisions of the acts of Congress, were before the court. The issues determined were what constituted navigable waters of the United States, subject to the control of Congress, under the Commerce clause, and it was unanimously held:

"And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by unit. ing with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water."

And on page 565 of 77 U. S. (19 L. Ed. 999) the court say: "The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of Congress."

In North Bloomfield, etc., Co. v. United States, an act of Congress regulating hydraulic mining in California, to the end that navigable waters should not be obstructed, was attacked as unconstitutional. But the United States Circuit Court of Appeals for the Ninth Circuit, in overruing this contention, held that the power of Congress to pass the act in question under the commerce clause was undoubted.

But it is claimed that such legislation can only be sustained under the police power; that that power is vested in the states solely and not in the general government, and therefore a regulation for the protection of employés, such as is attempted to be given by this act, can only be exercised by the states. That Congress might legislate under the commerce clause touching liability for torts or the protection of passengers and employés has been intimated by the Supreme Court in a number of cases.

In Sherlock v. Alling, 93 U. S. 99, 103 (23 L. Ed. 819), it was said: "It is true that the commercial power conferred by the Constitution is one without limitation. It authorizes 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 bas embraced the whole subject of navigation, prescribed what shall constitutė American vessels, and by whom they shall be navigated; how they shall be registered or enrolled, and licenses ; . *. Since steam has been applied to the propulsion of vessels, legislation has embraced an intinite variety of further details, to guard against accident and consequent loss of life.

“The power to prescribe these and similar regulations necessarily involves the right to declare the liability wbich sball follow their infraction. Whatever, therefore, Congress determinés, either as to a regulation or the liability for its infringement, is exclusive of state authority. But with reference to a great variety of matters touching the rights and liabilities of persons engaged

in commerce, either as owners or navigators of vessels, the laws of Congreso are silent, and the laws of the state govern.

Until Congress, there fore, wakes some regulation touching the liabllity of parties for marine torts resulting in the death of the persons injured, we are of opinion that the stat ute of Indiana applies, giving a right of action in such cases to the personal representatives of the deceased, and that, as thus applied, it constitutes no en. croachment upon the commercial power of Congress."

In Smith v. Alabama, 124 U. S. 465, 479, 8 Sup. Ct. 564, 569 (31 L. Ed. 508), a statute of the state requiring locomotive engineers to be examined and licensed by the state authorities was attacked as un. constitutional, so far as it applied to engineers in charge of locomotives engaged in interstate commerce. In sustaining the constitutionality of the act, Mr. Justice Matthews, who delivered the opinion of the court, said:

It would, indeed, be competent for Congress to legislate upon its subjectmatter, aud to prescribe the qualifications of locomotive engineers for emplog. ment by carriers engaged in foreign or Interstate coinmerce.”

In Railroad Co. v. New York, 165 U. S. 628, 632, 17 Sup. Ct. 418, 420 (41 L. Ed. 853), the validity of a statute of the state of New York regulating the heating of steam passenger cars on trains, including those engaged in interstate traffic, was before the court, the contention being that the statute was rep'ignant to the commerce clause of the national Constitution; and it was held:

"Until displaced by such national legislation as Congress may rightfully establish, under its power to regulate commerce witb foreign nations and among the several states, the validity of the statute, so far as the commerce clause of the Constitution of the Uuited States is concerned, canuot be questioned.”

In Chicago, etc., Railway Co. v. Solan, 169 U. S. 133, 137, 18 Sup. Ct. 289, 291 (42 L. Ed. 688), the court say:

"So long as Congress has not legislated upon the particular subject, they (the statutes of the state) are rather to be regarded as legislation in aid of such commerce," etc.

In Western Union Telegraph Co. v. James, 162 U. S. 650, 661, 16 Sup. Ct. 934, 40 L. Ed. 1105, the same rule was applied to state legislation affecting telegraph companies.

But if there ever was any room for doubt as to the power of Congress to enact such legislation, it has been removed by what was decided in Patterson v. Bark Eudora, 190 U. S. 169, 175, 23 Sup. Ct. 821, 822 (47 L. Ed. 1002). In that case the constitutionality of the act of Congress of December 21, 1898, c. 28, $$ 3, 24, 30 Śtat. 755, 763 (U. S. Comp. St. 1901, pp. 3076, 3080], making it unlawful to pay seamen wages in advance, was questioned. It was contended:

“That, even if the contract be one subject to restraint under the police power, that power is vested in the states and not in the general government, and any restraint, if exercised at all, can only be exercised by the state in which the contract is entered into; that the only jurisdiction possessed by Congress in respect to such matters is by virtue of its power to regulate cowmerce, interstate and foreign; that the regulation of commerce does not carry with it the power of controlling contracts of employment by those engaged in such service, any more than it includes the power to regulate contracts for service on interstate railroads, or for the manufacture of goods which may be intended for interstate or foreign commerce."

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