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of the court is invoked solely upon the authority of the act of Congress approved June 11, 1906 (34 Stat. 232, c. 3073), entitled "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 between the states and foreign nations to their employés." This recent and most important legislation is popularly known as the "Employer's Liability Act." The language of that act material for our consideration is as follows:

"That every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of the United States, or between the several states, or between any territory and another or between any territory or territories and any state or states, or the District of Columbia, or with foreign nations or between the District of Columbia and any state or states or foreign nations, shall be liable to any of its employés, or, in the case of his death, to his personal representative for the benefit of his widow and children, i any; if none, then for his parents; if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents or employés, or by reason of any defect, or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways, or works.

"Sec. 2. That in all actions hereafter brought against any common carriers to recover damages for personal injuries to an employé, or where such injuries have resulted in his death the fact that the employé may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. All questions of negligence and contributory negligence shall be for the jury.

"Sec. 3. That no contract of employment, insurance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employé, nor the acceptance of any such insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employé. Provided, however, That upon the trial of such action against any common carrier the defendant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the injured employé or, in case of his death, to his personal representative."

To the declaration of the plaintiff the defendant has demurred upon several grounds: (1) Because the act is not a regulation of commerce within the meaning of the commerce clause of the Constitution; (2) because said act, if it be a regulation of commerce, is not limited to commerce with foreign nations, or among the several states or with the Indian tribes, but extends as well to intrastate commerce; (3) because interstate and intrastate employés are so commingled by this act that it is impossible to make it apply only to interstate employés, unless the court reads into the act something which Congress has not put there, and this the court may not do; (4) because it is a violation of the fifth amendment to the Constitution, which provides that "no person shall be deprived of life, liberty, or property, without due process of law."

This demurrer draws in question the power and authority of the national Congress to enact a law, which in the minds of the plaintiff and her counsel has justified her action. It is perhaps difficult to magnify unduly the significant and consequential import of the question thus presented. Every corporation and person in the states and territories engaged in commerce between the states, or between the states and

foreign nations, may be profoundly concerned. More immediate perhaps is the interest of more than a million of our countrymen, the employés of the railway and other corporations who serve the public and their employers in the mightiest, and-after agriculture-the most indispensable among the physical labors of civilized men. The settled policy of a great nation on this stupendous topic is at stake. The validity of a deliberate enactment of the national Legislature is drawn in question for determination by the final arbiter of the American system of government. Where reposes the august power of such final arbitrament? On a previous occasion I have attempted to answer. "Whenever the rights of the citizen may be affected by a particular governmental act, whether it be an act of Congress or of the state Legislature, or of an executive or judicial functionary, either of the state or of the United States if it be capable of submission to a court having jurisdiction, the final and common arbiter of the constitutional question is the supreme judicial authority of the courts of the United States." In such cases the final decision of that authority is binding. upon all the people, all the states, and all the departments of the general government. It is this magnificent significance of judicial power and usefulness which dignifies our government over that of every other nation. Lord Chatham declared of the British Constitution:

"The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, but the King of England cannot enter. All his forces dare not cross the threshold of the ruined tenement."

But not so of the legislative power; for, said Mr. Phelps, in his eulogy of our Supreme Court:

"The great orator could go no further. He could not say the British Parliament might not enter the home of the subject, for all the judges of England are powerless in the face of an act of Parliament whatever it may be. It was reserved for the American Constitution to extend the judicial protection of personal rights, not only against the rulers of the people, but against the representatives of the people. And," continued that great American lawyer, "judges will be appointed and will pass away, one generation rapidly succeeding another; but whoever comes, and whoever goes, the court remains. Strong in its traditions, consecrated by its memories, fortified with the steadfast purpose of the profession that surrounds it, anchored in the abiding trust of its countrymen, the great court will go on, and still go on, keeping alive through many a century that we shall not see the light that burns with constant radiance upon the high altar of American constitutional justice." Speer's Lectures on the Constitution, J. W. Burke Co., Macon, Ga., pp. 101-103.

While this is true, and while it is also true, as De Tocqueville declared, that "a more imposing judicial power was never constituted by any people," in all our history the occasions when the action of Congress or the executive have been declared unconstitutional are singularly and happily infrequent. This is indeed inevitable from the division. and co-ordination of our governmental power. There is a settled presumption in favor of the validity of every legislative act. This perhaps was originally ascribable to the lofty and even plane of intelligence, patriotism, and statesmanship discoverable from the earliest period of our history in the national Legislature. It is probable that in other times. a few great men of distinguishing individuality were more conspicuous in that body than at present. It is also probable that at no other period

has there been an average plane of intelligence, of careful education, of knowledge, of historical information, or familiarity with present conditions, and of keen perspicacity of those measures essential for the welfare of the people than that which exists today in our Congress. Nor is it less persuasive of the validity of national legislation that the executive and his constitutional advisers are regarded as worthy prescient colaborers with Congress in the recommendation and approval of such

measures.

Whatever the reason, certain it is that the rule exists that courts will not adjudge an act of Congress invalid, unless in their judgment its violation of the Constitution is clear, complete, and unmistakable. Every reasonable judicial doubt must be resolved in favor of the law. Even where the legislation is annulled the Supreme Court has given unequivocal expression to this doctrine. In the Trade-Mark Cases, 100 U. S. 96, 25 L. Ed. 550, Associate Justice Miller, rendering the opinion, observed:

"When this court is called on in the course of the administration of the law to consider whether an act of Congress or of any other department of the government is within the constitutional authority of that department a due respect for the co-ordinate branch of the government requires that we shall decide it has transcended its powers only when that is so plain that we cannot avoid the duty." Justice Miller further observed that one "will count, as he may do on his fingers, the instances in which this court has declared an act of Congress void for want of constitutional power."

And again, in the case of the United States v. Harris, 106 U. S. 635, 1 Sup. Ct. 606, 27 L. Ed. 290, Mr. Justice Wood said:

"Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that Congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated."

The principle is otherwise expressed in the famous case of the Northern Securities Co. v. United States, 193 U. S. 350, 24 Sup. Ct. 462, 48 L. Ed. 679. There Mr. Justice Harlan declares:

“No higher duty rests upon this court than to enforce, by its decrees, the will of the legislative department of the government, as expressed in a statute, unless such statute be plainly and unmistakably in violation of the Constitution."

It is obvious that these cardinal principles of constitutional determination must be steadily held in mind while the question here involved is under consideration.

The impeachment of this legislation is based upon the following material contentions: First, because the subject-matter sought to be regulated is not commerce, or the law a proper regulation of such commerce; and, second, because it involves an unwarrantable effort to regulate intrastate commerce, over which Congress has no power. A superficial conception of the term "commerce" may lead to conclusions as fallacious as they are inimical to the proper solution of these great questions about which the country is now concerned. The term, as used in the Constitution, has been repeatedly interpreted by the courts. Said Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed.

23:

"Commerce, undoubtedly, is traffic, but it is something more it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse."

More detail is afforded by the definition of Mr. Justice Johnson in his concurring opinion in the same case (page 229 of 9 Wheat., page 23 of 6 L. Ed.):

"Commerce, in its simplest signification, means an exchange of goods; but, in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange become commodities, and enter into commerce. The subject, the vehicle, the agent, and the various operations become the objects of commercial regulation."

* * * "

"Commerce," declared Mr. Justice Field, in Welton v. State of Missouri (91 U. S. 280, 23 L. Ed. 347), "is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities. Additional definitions may be found in Smith v. Turner, 7 How. 401, 12 L. Ed. 702; State Freight Tax Case, 15 Wall. 284, 21 L. Ed. 164; Chicago R. Co. v. Fuller, 17 Wall. 568, 21 L. Ed. 710; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 9, 24 L. Ed. 708; Mobile Co. v. Kimball, 102 U. S. 702, 26 L. Ed. 238; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 204, 5 Sup. Ct. 826, 29 L. Ed. 158; Addyston Pipe Co. v. U. S., 175 U. S. 241, 20 Sup. Ct. 96, 44 L. Ed. 136.

It follows that from Chief Justice Marshall we learn that it means commercial intercourse in all its branches, and that it is regulated by prescribing rules for carrying on that intercourse. It is very clear that such rules can be corrective in a restricted sense only, if confined to the material commodities transported, sold, or exchanged. This is not enough. They must operate on men. That they affect passengers can scarcely be denied. This has been established by legislation and by the courts, but the great Chief Justice extends the meaning of the word to all its branches. How futile and unworthy the attention of government would be this provision of the organic law did it fail to affect the individuals for whom, by whom, and at whose instance, commercial intercourse is carried on.

The persons who are concerned or affected by commerce may be classified as follows: (1) Persons as commodities of commerce, such as passengers and immigrants; (2) persons who are the instrumentalities of commerce, such as pilots, engineers, and mariners on vessels, railway operatives on land, and others whose business is interstate or foreign commerce; (3) persons who thus employ, and set commerce in motion. These are the men who create and continue to operate the great lines or channels of commercial intercourse. It is, then, wholly impossible in a constitutional sense, or in legislative contemplation, to separate the men who are the instrumentalities and active agents of that commerce which the national government may control from the restrictive or benevolent regulation within the purview of that power which the framers of the Constitution conferred upon Congress. In a word, the commodities of commerce, whether animate or inanimate,

cannot be moved for the trade of the world without men. To direct and to protect such men is within the domain of legislative regulation. The employés of those persons or corporations which are engaged in interstate or foreign commerce are then within the regulative power of Congress, and that power, said Chief Justice Marshall, "is to prescribe the rule by which commerce is to be governed, and like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Constitution." In behalf of such employés the law under consideration was enacted.

It should be noted also that the courts have universally held that the power to regulate embraces all the instrumentalities by which commerce may be conducted. Welton v. Missouri, supra; Pacific Coast S. S. Co. v. Board of R. R. Com'rs (C. C.) 18 Fed. 11; Sherlock v. Alling, 93 U. S. 104, 23 L. Ed. 819; United States v. Joint Traffic Ass'n, 171 U. S. 569, 19 Sup. Ct. 25, 43 L. Ed. 259; Hopkins v. United States, 171 U. S. 597, 19 Sup. Ct. 40, 43 L. Ed. 290. Said Mr. Justice Field, in Gloucester Ferry Co. v. Pennsylvania, supra, page 203 of 114 U. S., page 828 of 5 Sup. Ct., 29 L. Ed. 158:

"The power to regulate is the power to prescribe the rules by which [commerce] shall be governed; that is, the conditions upon which it shall be conducted-to determine when it shall be free, and when subject to duties or other exactions. The power 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 power to regulate applies as well to traffic on water as to traffic on land, and while some regulations have been ascribed to the law of the admiralty, which is of full force not only upon the seas but on the interior lakes and navigable waterways of the United States, it is yet clear that much legislation for the direction and protection of the instrumentalities of this maritime trade finds its authority in the commerce clause which we are discussing. Said Mr. Justice Clifford, in State Tonnage Tax Cases, 12 Wall. 216, 20 L. Ed. 370:

- "Unquestionably, the power to regulate commerce includes navigation as well as traffic in its ordinary signification, and embraces ships and vessels as the instruments of intercourse and trade, as well as the officers and seamen employed in their navigation."

This language is reiterated in Hall v. De Cuir, 95 U. S. 494, 24 L. Ed. 547, and in other cases. The officers and seamen then are deemed and held to be as much the instruments of such intercourse and trade as the ships and vessels. It is also established that the powers thus granted are not confined to the instrumentalities of commerce as they were known or in use when the Constitution was adopted. In Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 9, 24 L. Ed. 708, it was said by Chief Justice Waite:

"They extend from the horse with its rider to the stagecoach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad. and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate at all times and under all circumstances."

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