But Mr. Justice Brewer, in answer to this contention, said: "Neither do we think there is in it any trespass on the rights of the states. No question is before us as to the applicability of the statute to contracts of sailors for service wholly within the state. We need not determine whether one who contracts to serve on a steamboat between New York and Albany, or between any two places within the limits of a state, can avail himself of the privileges of this legislation, for the services contracted for in this case were to be performed beyond the limits of any single state and in an ocean voyage."

The expression of the court that "contracts with sailors for their services are exceptional in their character, and may be subjected to special restrictions for the purpose of securing the 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 commerce carried on by water than over that transported by land.

That very question was before the court in Re Debs, 158 U. S. 564, 589, 15 Sup. Ct. 900, 908 (39 L. Ed. 1092), and the court there said:

"It is said that the jurisdiction heretofore exercised by the national government over highways has been in respect to waterways--the natural highways of the country-and not over artificial highways such as railroads; but the occasion for the exercise by Congress of its jurisdiction over the latter is of recent date."

And, after discussing the subject fully, the court concludes, on page 591 of 158 U. S., page 909 of 15 Sup. Ct. (39 L. Ed. 1092):

"The Constitution 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 Lottery Cases, 188 U. S. 321, 356, 23 Sup. Ct. 321, 327 (47 L. Ed. 492), Mr. Justice Harlan said:

"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 limitations except as may be found in the Constitution."

And in Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 229, 20 Sup. Ct. 96 (44 L. Ed. 136), the same objection was made that the Sherman anti-trust act of July 2, 1890, was an interference with the rights to contract, but was by the court overruled.

In White's Bank v. Smith, 74 U. Š. 646, 19 L. Ed. 211, the act of July 29, 1850, providing for the recording of vessels, was sustained as a proper exercise of the powers of Congress under the commerce clause of the Constitution. And so was the limited liability act of Congress sustained in Providence, etc., Co. v. Hill Mfg. Co., 109 U. S. 578, 3 Sup. Ct. 379, 617, 27 L. Ed. 1038, and in United States v. Boston & Albany Railway (D. C.) 15 Fed. 209, section 4386 of the Revised Statutes, regulating the transportation of live stock, was sustained under the commerce clause.

In United States v. Freight Association, 166 U. S. 290, 312, 17 Sup. Ct. 540, 548 (41 L. Ed. 1007), the court say:

"Railroad companies are instruments of commerce, and their business is commerce itself. State Freight Tax Case, 15 Wall. (U. S.) 232, 275, 21 L. Ed. 146; Telegraph Co. v. Texas, 105 U. S. 460, 464, 26 L. Ed. 1067. An act which prohibits the making of every contract, etc., in restraint of trade or commerce among the several states, would seem to cover by such language a contract between competing railroads, and relating to traffic rates for the transportation of articles of commerce between the states, provided such contract by its direct effect produces a restraint of trade or commerce."

These authorities clearly sustain the power of Congress under the commerce clause of the Constitution to legislate for the safety and protection of employés engaged in interstate commerce, whether the transportation be by water or land.

2. Does the act also regulate intrastate commerce, and, if so, is the latter so inseparably connected with the other as to condemn the entire act? Assuming, but not deciding, that the act is broad enough to include all servants of a common carrier engaged in interstate trade, including those employed solely in transportation within one state. and others not employed in transportation at all, the main question is whether it is not separable so as to be valid when invoked by one actually employed in interstate traffic, as the plaintiff alleges in his complaint he was at the time of the injury.

The authorities relied upon by learned counsel for the defendant to sustain their contentions are United States v. Reese, 92 U. S. 214, 23 L. Ed. 563; Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550; United States v. Harris, 106 U. S. 629, 1 Sup. Ct. 601, 27 L. Ed. 290; Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763, 32 L. Ed. 766; and the Virginia Coupon Cases, 114 U. S. 270, 5 Sup. Ct. 903, 962, 29 L. Ed. 185.

A careful examination of the first four cases will show that the acts construed and declared invalid in those cases were all penal statutes, and that the court laid great stress on that fact.

In United States v. Reese, which was an indictment under the national election laws, the court say:

"We are, therefore, directly called upon to decide whether a penal statute," etc., page 221 of 92 U. S. (23 L. Ed. 563).

In the Trade-Mark Cases the parties were indicted for violation of the trade-mark statute. In that case, in answer to the contention of the counsel for the government, that as Congress had power to regulate trade-marks used in commerce with foreign nations and among the several states, these statutes should be held valid in that class of cases, if no further, the court said:

"To this there are two objections: First, the indictments in these cases do not show that the trade-marks which are wrongfully used were trade-marks used in that kind of commerce. Secondly, while it may be true that when one part of a statute is valid and constitutional, and another part is unconstitutional and void, the court may enforce the valid part where they are distinctly separable so that each can stand alone, it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body." Page 98 of 100 U. S. (25 L. Ed. 550).

In United States v. Harris the defendant was indicted under the provisions of section 5519 of the Revised Statutes [U. S. Comp. St. 1901,

p. 3714], and the court followed the rule announced in United States v. Reese, citing the excerpt from that case hereinbefore set out as the reason for its conclusions.

Baldwin v. Franks was also a criminal case for violation of section 5519, Rev. St., the statute declared unconstitutional in the Harris Case, the court saying on the subject of separability:

"This statute, considered as a statute punishing conspiracies in a state, is not of that character, for in that connection it has no parts within the meaning of the rule. Whether it is separable, so that it can be enforced in a ter ritory, though not in a state, is quite another question, and one we are not now called on to decide." Page 685 of 120 U. S., page 659 of 7 Sup. Ct. (32 L. Ed. 766).

In that case, the court, in distinguishing Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed..377, said:

"That was not a penal statute, but only a city ordinance regulating wharfage, and the suit was civil in its nature." Page 688 of 120 U. S., page 661 of 7 Sup. Ct. (32 L. Ed. 766).

That the employers' liability act is a remedial and not a penal act must be deemed to have been settled by Johnson v. Southern Pacific Railway Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363.

The only other case cited is the Virginia Coupon Cases. Those were civil actions arising out of the bond legislation of that state. The various acts before the court in that case were, as said by the court, "but a single scheme, the undisguised object of which is to enable the state to rid itself of a considerable portion of its public debt and to place the remainder on terms to suit its own convenience, without regard to the obligation it owes to its creditors"; and the court held:

"The scheme of the whole is indivisible. It cannot be separated into parts. It must stand or fall together. The substantive part of it, which forbids the tax collector to receive coupons in payment of taxes, as we have already declared. as, indeed, on all sides is admitted, cannot stand, because it is not consistent with the Constitution. That which is merely auxiliary to the main design must also fall with the principal of which it is merely an incident." Page 304 of 114 U. S., page 921 of 5 Sup. Ct. (29 L. Ed. 185).

The correctness of that decision upon the facts is unassailable, as it is based upon the well-settled rule that a st tute in part unconstitutional, if the provisions are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other as to warrant a belief that the Legislature intended them as a whole, and if all could not be carried into effect, the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are dependent, conditional, or connected must fall with them. Allen v. Louisiana, 103 U. S. 80, 26 L. Ed. 318. But it is equally well settled that if a part of a statute is unconstitutional the remainder is not void unless all the provisions are connected in the subject-matter, dependent on each other, operating together with the same purpose, or otherwise connected together in meaning that it cannot be presumed that the Legislature would have passed one without the other. Packer Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377; Tiernan v. Rinker, 102 U. S. 123, 26 L. Ed. 103; Unity v. Burrage, 103 U. S. 447, 26 L. Ed. 405; Railroad Co. v. Schutte,

151 F.-34

103 U. S. 118, 142, 26 L. Ed. 327; McCullough v. Virginia, 172 U S. 102, 112, 19 Sup. Ct. 134, 43 L. Ed. 382.

In McCullough v. Virginia, the court, in passing upon this question, declared the true rule to be:

"It is elementary law that every statute is to be read in the light of the Constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the Legislature to reach. It is the same rule which obtains in the interpretation of any private contract between individuals. That, whatever may be its words, is always to be construed in the light of the statute of the law then in force, of the circumstances and conditions of the parties. So, although general language was introduced into the statute of 1871, it is not to be read as reaching to matters in respect to which the Legislature had no constitutional power, but only as to those matters within its control."

In Railroad Co. v. Schutte the court said:

"Under these circumstances, etc., the striking out is not necessarily by erasing words, but it may be by disregarding the unconstitutional provision and reading the statute as if the provision was not there." Page 143 of 103 U. S. (26 L. Ed. 327).

Applying these rules to the act before the court, is there any room for the presumption that Congress would not have passed the act unless it could be applied to all employés, including those not engaged on trains employed in interstate transportation or not engaged in transportation at all? If the act itself is ambiguous on that subject, reference to the title will at once remove it. That title is, "An Act Relating to Liability of Common Carriers in the District of Columbia and Territories and Common Carriers Engaged in Commerce between the States and Foreign Nations." That in cases of this kind the title of the act, as well as the circumstances surrounding its enactment, as exhibited in public documents, may be referred to, is well settled. Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 563, 12 Sup. Ct. 689, 36 L. Ed. 537; Johnson v. Southern Pacific Railway Co., 196 U. S. 1, 19, 25 Sup. Ct. 158, 49 L. Ed. 363; Petri v. Creelman Lumber Co., 199 U. S. 487, 495, 26 Sup. Ct. 133, 50 L. Ed. 281: Millard v. Roberts, 202 U. S. 429, 437, 26 Sup. Ct. 674, 50 L. Ed. 1090.

In Millard v. Roberts the court say:

"The titles of the acts are the best brief summary of their purposes."

Another rule of law applicable to the case at bar is that courts will not listen to an objection made to the constitutionality of an act by a party whose right it does not affect in the particular case on trial, and who has, therefore, no interest in defeating it. Supervisors v. Stanley, 105 U. S. 305, 311, 26 L. Ed. 1044; In re Garnett, 141 U. S. 1, 12, 141 U. S. 1, 35 L. Ed. 631; Clark v. Kansas City, 176 U. S. 114, 118, 20 Sup. Ct. 284, 44 L. Ed. 392; Patterson v. Bark Eudora, 190 U. S. 169, 176, 23 Sup. Ct. 821, 47 L. Ed. 1002. Missouri v. Dockery, 191 U. S. 170, 24 Sup. Ct. 53, 48 L. Ed. 133.

In Clark v. Kansas City the court approved the ruling of the Supreme Court of Kansas that "a court will not listen to an objection made to the constitutionality of an act by a party whose rig t it does not affect, and who has, therefore, no interest in defeating it"; the court saying:

"We concur in this view, and it would be difficult to add anything to its expression."

In Re Garnett it was held that:

"It is unnecessary to inquire whether the section is valid as to all kinds of vessels named in it; if it is valid as to the kind to which the steamboat Katie belongs, it is sufficient for the purpose of this case."

In Patterson v. Bark Eudora, Mr. Justice Brewer said:

"We need not determine whether one who contracts to serve on a steamboat between New York and Albany, or between any two places within the limits of a state, can avail himself of the privileges of this legislation, for the services contracted for in this case were to be performed beyond the limits of any single state and in an ocean voyage."

So, as stated by Judge Cooley:

"A legislative act may be entirely valid as to some classes of cases and clearly void as to others. If there are any exceptions to this rule, they must be cases only where it is evident from a contemplation of the statute and of the purpose to be accomplished by it that it would not have been passed at all except as an entirety, and that the general purpose of the Legislature will be defeated if it shall be held valid as to some classes and void as to others." Cooley Const. Lim. p. 250 (7th Ed.).

So in the case at bar the injury suffered by the plaintiff, as alleged in the complaint, was while he was engaged in labor performed on a train engaged in interstate commerce, and therefore brings this case within the foregoing rules of law.

For these reasons, I am of the opinion that the act is constitutional.

CARTER V. SEABOARD AIR LINE RY. CO.

(District Court, E. D. Virginia. January 24, 1907.)

COLLISION-TUG WITH TOW AND SMALL BOAT-NEGLIGENT NAVIGATION IN HARBOR.

A collision in the harbor of Norfolk, Va., in the daytime between a batteau rowed by two persons and a barge in tow on the side of a tug, in which one of the persons in the batteau was drowned, held to have resulted from the combined fault of those in charge of both vessels, those in the batteau for failing to give proper care and attention to the movements of other vessels in the harbor, and those in the tug in proceeding at too high a speed, unnecessarily close to the ends of the piers, and in failing to keep an ellicient lookout.

In Admiralty. Suit to recover for loss of life in collision.

Riddleberger & Roper, for libelant.

Goodrich Hatton, for respondent.

WADDILL, District Judge. On the 7th of July, 1906, about 4:15o'clock in the evening, Sam Carter, son of Jefferson Carter, a young man 19 years of age, while passing up the Elizabeth river in a batteau, which was being rowed by him with one oar, and sculled by a companion, Isaac Austin, a boy about 16 years of age, was drowned as the result of a collision between the batteau and one of the defendant company's house barges used in and about the harbor of Norfolk for the