to many other hazardous employments. In Germany it does not apply to any of the hazardous occupations. In 1869 Austria passed a law making railroad companies liable for all injuries to their employés save where the injury was due to the victim's own negligence. The Code Napoleon made the employer answerable for all injuries received by his workman, and this is still of force in France, in Belgium, and in Holland. Other European countries have from time to time fixed the liability of the master to his servant for damages caused by the negligent act of a fellow servant. It is, however, unhappily true that many states of the Union, notwithstanding the anachronism of the rule, have maintained and still enforce it. But Congress has at length determined that there shall be an uniform law for the protection of that army of more than a million of men engaged in interstate traffic-an army whose courage, decision, patriotism, and intelligence may not be surpassed.

The rule which this legislation abrogates was based upon the contention that the servant contracts for a wage sufficient to protect him against risks incident to the service, that he is in a better position to observe and protect himself against the negligence of his fellow servant than his employer, and that it will insure better service and less injury if the master be not responsible. The briefest consideration will show how archaic is this reasoning when applied to modern conditions. Take the engineer on the locomotive which drives the lightning express. The complexity of his mighty machinery requires his constant and careful attention. Possibly in the darkness of night, 50 or 60 miles an hour his train thunders along the gleaming rails. His is blind obedience to his orders. Through the mistake or negligence of a fellow servant, over whose action he has no control, of whose mistake or misconduct he has no knowledge, in an instant he may be hurled to death, or to mutilation indescribable. While this is true, under the law which the act of Congress repeals, it has been held that the relation of fellow servant existed between an engineer acting as conductor and his fireman, between a common day laborer building a culvert and the engineer and conductor running a train, between an engineer operating one train and the conductor on another train on the same road, between conductor and brakeman on the same train, between the local telegraph operator and fireman upon the train, and in view of these relations, shadowy and intangible as they are, yet justified by the law as it existed, it has been held that the employer was not liable for the death and suffering which resulted. The law is a progressive science. The rule has long been deemed most unjustifiable. In Labatt on Master and Servant, vol. 2, § 754 it is declared:

"It does not rest upon any satisfactory bases, logical, social, or economic, and by relegating the injured person to his action against a co-employé, who is. as a general rule, financially irresponsible, leaves him in the great majority of instances, without any prospect whatever of obtaining the adequate indemnity."

Such conditions will no longer exist. Said the house committee in its report on this measure:

"Now where the doctrine of fellow servant is in force no one is responsible for the injury or death of the fellow servant. The co-servant who is guilty of negligence resulting in the injury may be liable, but as a rule he is not responsible. Employés are never held to such strict rules for the safety of his co-employés, because the employer is not bound to pay damages in case of injury. If he were held liable for damages for every injury occasioned by the negligence of his servants, he would enforce the same strict rules for the safety of his employés as he does for the safety of passengers and strangers, he will make the employment of his servant and his retention in the service dependent upon the exercise of higher care, and this will be a strong inducement to the employé to act with higher regard for the safety of his fellow workmen."

It is, however, urged that the states are adequate to afford all needed relief. It will suffice to reply that a majority of them have not done so. An employé of interstate traffic may receive measurable protection from the negligence of his fellow servant in Georgia, though even here his whole demand is denied if he is himself guilty of any negligence contributory to the injury, however slight. His train rolls across the boundary line of South Carolina or Tennessee, and there for the same negligence, the same injury, the same death, he or his wife and children may be denied any and all redress.

But it is additionally objected that he who is engaged in interstate traffic also handles traffic which is intrastate, and this should be held to vitiate the legislation of Congress. By a parity of reasoning this would annul the laws in interior waterway navigation already discussed; it would abolish the Interstate Commerce Commission, and all of those regulations which Congress has enacted for the transportation and business of interstate commerce. "It will not do," said the Supreme Court, in Wheeling Bridge Case, 18 How. 421, 15 L. Ed. 435, "to say that the exercise of an admitted power of Congress conferred by the Constitution is to be withheld, if it appears or can be shown that the effect and operation of the law may incidentally extend beyond the limitation of the power. Upon any such interpretation the principal object of the framers of the instrument in conferring the power would be sacrificed to the subordinate consequences resulting from its exercise." In The Katie (D. C.) 40 Fed. 492, 7 L. R. A. 55, it was held:

"The purpose of the Legislature being legitimate and warranted by the Constitution, it is wholly immaterial to the consideration of its validity that somewhere it has a casual or contingent effect upon the domain of state legislation."

Were this argument sound, the shipment of a crate of pigs from Macon to Griswoldville would annul the power of Congress to control the shipment by the same train of a thousand bales of cotton from Macon en route to Liverpool.

It is true that, in support of this contention that the act is an unwarrantable interference by Congress with the trade and traffic between citizens of the same state, two decisions of the Supreme Court are cited. These are the Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550, and Illinois Central Railroad Company v. J. U. McKendree (decided December 17, 1906) 203 U. S. 514, 27 Sup. Ct. 153, 51 L. Ed. —. They are readily distinguishable from the question here. In the former, said Mr. Justice Miller, stating the grounds upon which the Trade-Mark legislation was held unconstitutional (page 96 of 100 U. S. [25 L. Ed. 550]):

151 FEDERAL REPORTER.

"When valid as a regulation of commerce, it is reasonable to expect to find on the Congress undertakes to enact a law, which can only be face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations, or among the several states, or with the Indian tribes. If not so limited, it is in excess of the power of Congress."

The acts there in question contained no reference whatever, either in terms or by implication, to interstate or foreign commerce, but applied to all trade-marks, by whomsoever and for whatever purpose used. And that this was the basis of the decision is clear from the court's reasoning:

"We would naturally look for this in the description of the class of persons who are entitled to register a trade-mark, or in reference to the goods to which it should be applied. If, for instance, the statute described persons engaged in commerce between the different states, and related to the use of trademarks in such commerce, it would be evident that Congress believed that it was acting under the clause of the Constitution which authorizes it to regulate commerce among the states. gested in this statute." But no such idea is found or sug

The language quoted renders obvious the distinction between that case and the one under consideration. there is a regulation of interstate traffic. The act relates to employés Here, “on the face of the law," of common carriers, and "describes persons engaged in commerce between the different states." Besides, the Trade-Mark Cases dealt with indictments for alleged crime, and in criminal cases the laws are construed with the utmost strictness against the government. This is remedial legislation, and the opposite rule is adopted.

Nor is the case of Illinois Central Railroad Company v. McKendree, 27 Sup. Ct. 153, 51 L. Ed. -, decisive of the question here in issue. In that case, the Secretary of Agriculture had adopted a certain quarantine line in the state of Tennessee, under act of Congress, "to more effectually suppress and prevent the spread of contagious and infectious diseases of live stock." This order was attacked because it applied to all cattle-to those transported within the state of Tennessee as well as without the state. It was not limited to cattle as a commodity of interstate commerce, and this therefore rendered it invalid. Mr. Justice Day declares:

"The order in terms applies alike to interstate and intrastate commerce. A party prosecuted for violating this order would be within its terms if the cattle were brought from the south of the line to a point north of the line within the state of Tennessee. of the order the secretary intended it to apply to all commerce, and whether he For aught that appears upon the face would have made such an order, if strictly limited to interstate commerce, we have no means of knowing. The order is in terms single and indivisible."

In the case here the act is an express regulation of interstate commerce, limited to the employés of those common carriers who are engaged therein. It operates neither expressly nor impliedly upon employes or carriers in solely intrastate traffic. But even could it be so construed, certainly the power of Congress to control interstate instrumentalities would not be divested, merely because those instrumentalities may be incidentally used as mediums of local commerce. The Wheeling Bridge Case, supra.

Nor can it be justly contended that any injury will result to any corporation or person engaged in interstate or foreign commerce by the means of redress for injuries thus afforded by the act of Congress. There is no deprivation of due process of law. Mo. Pacific R. R. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; McGuire v. Chicago, etc., R. R. (Iowa) 108 N. W. 902. It is true that an action like that under consideration presents a controversy arising under the Constitution and laws of the United States. It is also true that the judicial power of the United States extends to such controversy, and jurisdiction is therefore conferred upon the courts of the United States. The judges of those courts will scarcely entertain an argument that this will be injurious to either party litigant. The plaintiff, however, need not seek the court unless he chooses to do so. Its jurisdiction is not exclusive, but merely concurrent. He may sue for his federal cause of action, thus created, in the state court. On the other hand, many railroads and other corporations engaged in interstate commerce, already remove the actions or suits in which they are parties defendant from the state courts to the courts of the United States. It is within the bounds of possibility that the controlling and influential owners of great railroads, which traverse those states where no redress at all is afforded to the employé for injuries consequent upon the negligence of a fellow servant, may regard this legislation as injurious.

Be this as it may, Congress has now drawn the whole subject within the boundaries of its constitutional power. It is seeking to protect the employés who are the instruments and agents of commerce. The government of the United States, within the scope of its powers, operates upon every foot of territory under its jurisdiction. It legislates for the whole nation, and is not embarrassed by state lines. Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 10, 24 L. Ed. 708. "It is a principle fully recognized by decisions of the state and federal courts that, wherever there is any business, from which, either from the products created or the instrumentalities used, there is danger to life or property, it is not only within the power of the states, but it is among their plain duties to make provisions against accidents likely to follow in such business, so that the dangers attending it may be guarded against so far as is practicable." This is the language of Mr. Justice Fields in Nashville, etc., Railway v. Alabama, 128 U. S. 99, 9 Sup. Ct. 28, 32 L. Ed. 352, who spoke for the unanimous court. This great Justice, however, in the same paragraph also says:

"It is conceded that the power of Congress to regulate interstate commerce is plenary; that, as incident to it, Congress may regulate as to the qualificatious, duties, and liabilities of employés and others on railway trains engaged in that commerce; and that such legislation will supersede any state action upon the subject. But until such legislation is had, it is clearly within the competency of the states to provide against accidents on trains whilst within their limits."

On this subject it would seem that the argument is exhaustive. To the same effect are Smith v. Alabama, 124 U. S. 473, 8 Sup. Ct. 564, 31 L. Ed. 508; Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; New York, New Haven & Hartford R. R. v. New York, 165 U. S. 631.

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17 Sup. Ct. 418, 41 L. Ed. 853; Cooley v. Board of Wardens, 12 How. 320, 13 L. Ed. 996.

The identical power of the legislative authority to pass a liability act abrogating the fellow servant rule and forbidding the making of contracts of exemption has been considered in the case of Peirce v. Van Dusen, 78 Fed. 694, 24 C. C. A. 280, 69 L. R. A. 705, by the Circuit Court of Appeals of the Sixth Circuit, before Associate Justice Harlan, and Circuit Judges William H. Taft and Horace H. Lurton. The case was decided in 1897, and the associate justice delivered the opinion for the unanimous court. The direct question in issue was the validity of an Ohio statute, but said the Circuit Court of Appeals: "Undoubtedly, the whole subject of the liability of interstate railroad companies for the negligence of those in their service may be covered by national legislation enacted by Congress under its power to regulate commerce among the states."

It will be borne in mind that the national Legislature had not then regulated as to such negligence, and Mr. Justice Harlan continues:

"But, as Congress has not dealt with that subject, it was competent for Ohio to declare that an employé of any railroad corporation doing business there, including those engaged in commerce among the states, shall be deemed, in respect to acts within this state, the superior, not the fellow servant, of other employés placed under his control."

I may add that a strong analogy to the question under consideration. is found in the legislation of Congress and the decisions of the national courts requiring safety appliances on all trains engaged in interstate commerce. In Johnson v. Southern Pacific Company, 196 U. S. 16, 25 Sup. Ct. 158, 49 L. Ed. 363, the Supreme Court applied and construed the act of March 2, 1893. This required the equipment of locomotives, trains, and cars with air brakes, automatic couplers, etc. Said Chief Justice Fuller (page 17 of 196 U. S., page 161 of 25 Sup. Ct. [49 L. Ed. 363]):

"The primary object of the act was to promote the public welfare by securing the safety of employés and travelers."

It is obvious that passengers transported or employés working between intrastate points would enjoy the protection of this exercise by Congress of its power to regulate. The court thus recognized the right of Congress to legislate for the protection of employés and of the general public, and decided that a dining car in making an interstate journey was equally under the control of Congress while waiting to be made up into a train as while in motion. While the original safety appliance act made it unlawful for common carriers, engaged in interstate commerce, to haul cars not properly equipped when "used in moving interstate traffic," the amendatory act of 1903 declared that the original provisions should be held to apply to "all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce." Obviously, this was an explicit recognition by Congress of its constitutional right to control the instrumentalities, and prescribe conditions for all interstate common carriers. This is also the construction given in the recent case of United States v. Great Northern Railway Co. (D. C.) 145 Fed. 438,