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der which they transported the packages.
Mr. Justice Strong, delivering the opin-
ion of the court, after describing the busi-
ness in which the companies were en-
gaged, said: 'Such being the business
and occupation of the defendants, they
are to be regarded as common carriers,
and, in the absence of stipulations to the
contrary, subject to all the legal respon-
sibilities of such carriers.' And then
proceeded to show that they could not
avail theinselves of the exemption
claimed by virtue of the clauses in the
contract. The whole argument of the
opinion proceeds upon the assumption
that the common-law rule in respect to
common carriers controlled." Western
Union Tel. Co. v. Call Pub. Co., 181 U.
S. 92, 45 L. Ed. 765, 21 S. Ct. 561.

In the absence of congressional action
the power of interstate carriers to charge
for their services is restricted by the
principles of the common law requiring



3449



REGULATION AND CONTROL.



§§ 3836-3837



Tracks, Switches, etc. — In the case of railroads, the tracks, terminals,
switches, stations, cars, engines, appliances, and the methods of operation are all,
when employed as component parts of a general system engaged in interstate
traffic, instrumentalities of interstate commerce, within the scope of congressional
legislation. ^1

Ownership of Cars, etc. — It is not necessary that a railroad should actually
own cars in order to be a common carrier engaged in interstate commerce; but
it is sufficient if it owns and controls one of the instrumentalities essential in
carrying on trade and commerce between different points.^-

§ 3837. Power of Congress to Construct Railroad. — Congress has au-
thority, in the exercise of its power to regulate commerce among the several
states, to construct, or authorize individuals or corporations to construct railroads
across the states and territories of the United States. This power is essential to
the complete control and regulation of interstate commerce. Without such power,
congress would be without authority to regulate one of the most important ad-
juncts of commerce. ^^ Congress, for the purpose of facilitating interstate rail-



such charges to be reasonable. Western
Union Tel. Co. v. Call Pub. Co., 181 U.
S. 92, 45 L. Ed. 765, 21 S. Ct. 561.

Principle applied in a case of a tele-
graph company engaged in interstate
commerce. Western Union Tel. Co. v.
Call Pub. Co., 181 U. S. 92, 45 L. Ed.
765, 21 S. Ct. 561.

51. Tracks, switches, etc. — McNamara
^. Washington Terminal Co., 37 App. D.
C. 384.

52. Ownership of cars, etc. — McNamara
V. Washington Terminal Co., 37 App. D.
C. 384.

53. Construction of railroads. — Califor-
nia V. Central Pac. R. Co., 127 U. S. 1, 32
L. Ed. 150, 38 S. Ct. 1073; Cherokee Na-
tion V. Southern Kansas R. Co., 135 U.
S. 641, 34 L. Ed. 295, 10 S. Ct. 965; Lux-
ton V. North River Bridge Co., 153 U.
S. 525. 38 L. Ed. 808, 14 S. Ct. 891. See,
also. United States v. Union Pac. R. Co.,
160 U. S. 1, 40 L. Ed. 319, 16 S. Ct. 190;
Wilson V. Shaw, 204 U. S. 24. 51 L. Ed.
351, 27 S. Ct. 233.

For the purpose of the construction of
railroads traversing the states as well a?
the territories, congress may employ the
agency of state as well as federal cor-
porations. California v. Central Pac. R.
Co., 127 U. S. 1, 32 L. Ed. 150, 38 S. Ct.
1073; Cherokee Nation v. Southern Kan-
sas R. Co., 135 U. S. 641, 34 L. Ed. 295,
10 S. Ct. 965; Luxton v. North River
Bridge Co.. 153 U. S. 525, 38 L. Kd. 808,
14 S. Ct. 891. See, also, Pacific R. Re-
moval Cases, 115 U. S. 1, 29 L. Ed. 319,
5 S. Ct. 1113.

The original Kansas Pacific R. R. Com-
pany was authorized by § 9 of the Pa-
cific Railroad act of July 1, 1862, to ex-
tend its road into the state of Missouri —
that is, "to construct a railroad and tele-
graph line from the Missouri River, at
the mouth of the Kansas River, on the
south side thereof (which is in the state
of Missouri), so as to connect with the
Pacific Railroad of Missouri, to the afore-
said point on the one hundred meridian



of longitude," namely, the point where
the Union Pacific was to commence.
This provision looked to the establish-
ment of a continuous line of railroad
from the Mississippi River, at St. Louis
(the eastern terminus of the Pacific Rail-
road of Missouri), to the Pacific Ocean.
The power assumed by congress in giv-
ing this authority to the Kansas company
was, undoubtedly, assumed to be within
the power "to regulate commerce among
the several states," and, although by an
act of the legislature of Missouri, passed
in February, 1865, the consent of that
state was also given to the extension of
the road into its territory, and to its
connection with the Missouri road, the
fact remains that the company claimed
and assumed to exercise its powers un-
der the act of congress, as well as by
the consent of the legislature of ^lis-
souri. So that the right of appropnating
the very propertj^ in question in this case
was claimed under authority of an act
of congress. Pacific R. Removal Cases,
115 U. S. 1, 29 L. Ed. 319, 5 S. Ct. 1113.

Congress, in the act of September 20.
1850, c. 61, granted a right of way, and
sections of the public lands, to the state
of Illinois, to aid in the construction of
a railroad in that state from the south-
ern termination of the Illinois and Mich-
igan Canal "to a point at or near the
iunction of the Ohio and Mississippi
Rivers," with branches to Chicago and
Dubuque, "to be and remain a public high-
^vay, for the use of the government of
the United States, free from toll or other
charge upon the transportation of any
property or troops of the United States,"
and on which the United States mail
should "at all times be transported, un-
der the direction of the post office de-
partment, at such price as the congress
may by law direct;" and, in order "to aid
in the construction of said Central Rail-
road," made like grants to the states of
Alabama and Mississippi, respectively,
for the purpose of aiding in the construe-



§ 3837-3840 carriers. 3450

way transportation has authorized the construction of bridges over navigable
waters.^'*

§§ 3838-3846. Safety of Persons and Property— § 3838. In Gen-
eral. — The power of congress to regulate interstate commerce is plenary, and
competently may be exerted to secure the safety of the persons and property
transported therein, and of those who are employed in such transportation, no.
matter what may be the source of the dangers which threaten it ; and it is no ob-
jection to such an exertion of this power that the dangers intended to be avoided
arise, in whole or in part, out of matters connected with intrastate commerce. ^^^

§§ 3839-3846. Rolling Stock and Equipment— § 3839. In General..

— Among the instruments and agents to which the power extends are the rail-
roads over which transportation from one state to another is conducted, the en-
gines and cars by which such transportation is affected, and all who are in any-
wise engaged in such transportation, whether as common carriers or as their em-
ployees.^*^ Commerce, in the constitutional sense, includes the instrumentalities,
by which commerce is carried on, and extends to the equipment of a railroad en-
gaged in interstate commerce, including the coal cars owned by a railroad com-
pany engaged in interstate commerce, in which it receives from the tipple of the
coal mines along its lines coal purchased by it and used solely for its own fuel pur-
poses.-''" Congress, in its discretion, may take entire charge of the whole sub-
ject of the equipment of interstate cars, and establish such regulations as are nec-
essary and proper for the protection of those engaged in interstate commerce.^®

§§ 3840-3844. Safety Appliance Act— § 3840. In General— Con-
gress has the power, under the commerce clause of the federal constitution, to re-
quire, as it did in the Safety Appliance Act,^^ that all locomotives, cars, and simi-



tion of a railroad from the city of Mo-
bile "to a point near the month of the
Ohio River." 9 Stat. 4fi6. The manifest
purpose of congress was to establish a
railroad in the centre of the continent,
connecting the waters of the Great Lakes
with those of the Gulf of Mexico, for the
benefit of interstate commerce, as well as
of the military and postal departments of
the government of the United States. Il-
linois Cent. R. Co. V. Illinois, 163 U. S.
142, 41 L. Ed. 107, 16 S. Ct. 1096.

54. Construction of bridges. — By the
act of July 2.5, 1866, congress authorized
the construction of bridges over the nav-
igable waters of the Mississippi River.
Bowman v. Chicago, etc., R. Co., 12.5 U.
S. 465, 31 L. Ed. 700, 8 S. Ct. 689, 1062.

By the acts of congress of December
17, 1872, c. 4, and Febrixary 14, 1883, c.
44, bridges were authorized to be built
across the Ohio river by any person or
corporation, having lawful authority
therefor, and with the approval of the
secretary of war; and were declared to
be lawful structures and post routes for
the transmission of the mails and the
troops and munitions of war of the United
States. 17 Stat. 398; 22 Stat. 414. Illinois
Cent. R. Co. v. Illinois, 163 U. S. 142, 41
L. Ed. 107, 16 S. Ct. 1096.

55. Safety of persons and property. —
Southern R. Co. :'. United States, 222 U.
S. 20, 56 L. Ed. 72, 33 S. Ct. 2; Mondou
V. New York, etc., R. Co., 223 U. S. 1, 56



L. Ed. 327, 32 S. Ct. 169, 38 L. R. A., N,
S., 44.

By virtue of its power to regulate in-
terstate and foreign commerce, congres.=
may enact laws for the safeguarding of
the persons and property that are trans-
ported in that commerce, and of those
who are employed in transporting thenr,
Baltimore, etc., R. Co. v. Interstate Com-
merce Comm., 221 U. S. 612. 55 L. Ed.
878. 31 S. Ct. 621; Johnson v. Southern
Pac. Co., 196 U. S. 1, 49 L. Ed. 363, 25 S.
Ct. 158; Adair v. United States, 208 U.S.
161, 52 L. Ed. 436, 28 S. Ct. 277, 13 Amv
& Eng. Ann. Cas. 764; St. Louis, etc., R.
Co. V. Taylor, 210 U. S. 281, 52 L. Ed.
1061, 28 S. Ct. 616; Chicago, etc., R. Co.
V. United States, 220 U. S. 559, 55 L. Ed.
582, 31 S. Ct. 612.

56. Rolling stock and equipment. —
Mondou V. New York, etc., R. Co., 223 U.
S. 1. 56 L. Ed. 327, 32 S. Ct. 169, 38 L. R.
A., N. S., 44.

57. Interstate Commerce Comm. v. Illi-
nois Cent. R. Co., 315 U. S. 452, 54 L.
Ed. 280, 30 S. Ct. 155; Interstate Com-
merce Comm. V. Chicago, etc., R. Co.,
215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 163.

58. Chicago, etc., R. Co. v. Arkansas,
219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275.

59. Safety Appliance Act. — Act of March
2. 1893. c. 19(>, 27 Stat. 531 (U. S. Comp.
St. 1901, p. 3174), as amended by Act
March 2, 1903, c. 976, 32 Stat. 943 (U. S.
Comp. St. Supp. 1909, p. 1143).

Act March 2, 1893, c. 196, 27 Stat. 531



3451



REGULATION AND CONTROL.



§ 3840



lar vehicles used on any railway engaged in interstate commerce shall he equipped
with certain designated safety appliances, regardless of whether such vehicles are-
used in moving intrastate or interstate traffic.^*^ This is so, not because congress,
possesses any power to regulate intrastate commerce as such, but because its



(U. S. Comp. St. 1901, p. 3174), and
amendments thereto (Act April 1, 1896,
c. 87, 29 Stat. 85, and Act. March 2, c. 976,
32 Stat. 943 [U. S. Comp. St. Supp. 1907.
p. 885]), known as the Safety Appliance
Acts, are within the power conferred on
congress under the constitution of the
United States, art. 1, § S, subd. 3, relating
to the regulation of interstate commerce.
United States v. Southern R. Co., 164
Fed. 347.

Act March 2, 1893, c. 196, 27 Stat. 531
(U. S. Comp. St. 1901, p. 3174), and
amendments thereto (Act April 1, 1896,
c. 87, 29 Stat. 85, and Act March 2, 1903,
c. 976, 32 Stat. 943 [U. S. Comp. St. Supp.
1907, p. 885]), known as the Safety Ap-
pHance Acts, are not a violation of the
constitution of the United States, Amend-
ment 10, providing that the powers not
delegated to the United Stales by the
constitution, or prohibited by it to the
states, are reserved to the States respect-
ively, or to the people. United States v.
Southern R. Co., 164 Fed. 347.

Congress has power, not only under
the commerce clause of the constitution
to regulate interstate commerce and the
instrumentalities thereof, but also by vir-
tue of its police power to provide for the
protection of railroad employees and the
traveling public by prescribing safeguards
for vehicles used over an interstatehigh-
way or any portion thereof; and there-
fore, under Safety Appliance Act March
2, 1893, c. 196, 27 Stat. 531 (U. S. Comp.
St. 1901, p. 3174), and amendments thereto
(Act April 1, 1896, c. 87, 29 Stat. 85, and
Act March 2, 1903, c. 976, 32 Stat. 943 [U.
S. Comp. St. Supp. 1907, p. 885]), failure
to provide vehicles with the safety appli-
ances required by the acts is a violation
thereof when the cars are operated over
any portion of the highway though that
portion be from a point within a state
to another point within the same state.
United States v. Southern R. Co., 164
Fed. 347.

Where a car is set apart for intrastate
traffic exclusively, but is not confined to
intrastate trains on an intrastate line, the
fact that while laden with intrastate traf-
fic it is hauled in connection with inter-
state cars on an interstate line requires it
to be equipped with automatic couplers
and grab irons, in compliance with the
Federal Safety Appliance Act (Act March
2, 1903, c. 976, 32 Stat. 934 [U. S. Comp.
St. Supp. 1907, p. 885]). Wabash R. Co.
V. United States, 168 Fed. 1.

Amendment to Safety Appliance Act
March 2, 1903, c. 976, 32 Stat. 943 (U. S.
Comp. St. Supp. 1907, p. 885), requiring
regulations as to safety appliances to ap-



ply to all trains and cars used in inter-
state commerce, applies to all cars and_
trains operated for interstate commerce
over an interstate highway, irrespective-
of whether they are operated between
pomts situated in the same state, whether
they are empty, or whether the traffic
carrier is intrastate. Wabash R. Co. v..
United States, 168 Fed. 1.

The Safety Appliance Act of 1893 (Act
March 2, 1893, c. 196, 27 Stat. 531 [U. S..
Comp. St. 1901, p. 3173]), as amended by
Act iMarch 2, 1903, c. 976, 32 Stat. 943 (U.
S. Comp. St. Supp. 1907, p. 885), applies
to a railroad which takes part in the-
transportation of articles of commerce on
any part of the way to their point of final
destination, although operated wholly
within a single state, independently of
connecting lines, and without any traffic
arrangement with them. Pacific Coast R.
Co. T'. United States, 173 Fed. 448.

Safety Appliance Act March 2, 1893, c.
]96, 27 Stat. 531 (U. S. Comp. St. 1901, p.
3174), as amended by Act March 2, 1903,
c. 976, 32 Stat. 943 (U. S. Comp. St. Supp..
1907, p. 885), which in terms applies to.
"any common carrier engaged in inter-
state commerce by railroad," is not lim-
ited by the provisions of the Interstate
Commerce Act Feb. 4, 1887, c. 104, 24
Stat. 379 (U. S. Comp. St. 1901, p. 31.54),
which expressly apply only to carriers,
"under a common control, management,
or arrangement for a continuous carriage-
or shipment," the two acts having dis-
tinct purposes and providing remedies
for different evils, not being in pari ma-
teria in such sense that the provisions of
one should control or limit the other. Pa-
cific Coast R. Co. V. United States, 173.
Fed. 448.

Under the Safety Appliance Act (Act
March 2, 1893, c. 196, 27 Stat. 531 [U. S..
Comp. St. 1901, p. 3174]), requiring all
cars used in interstate traffic to be-
equipped with automatic couplers, as.
amended by Act March 3. 1903, c. 976, 32
Stat. 943 (U. S. Comp. St. Supp. 1909, p.
n43), extending the act to all cars used'
in interstate commerce and all cars used
in connection therewith, a carrier of in-
terstate commerce over an interstate rail-
way is liable for penalty as to all cars and
trains operated on such railway, though,
the defective car is being hauled from
one point to another in the same state,,
provided that it is part of a train engaged
in interstate traffic. United States v. In-
ternational, etc., R. Co., 98 C. C. A. 392,.
174 h'cd. 638.

60. Southern R. Co. v. United States,.
222 U. S. 20, 56 L. Ed. 73, 32 S. Ct. 2, af-
firming 164 Fed. 3:4.7..



§ 3840



CARRIERS.



3452



power to regulate interstate commerce is plenary, and competently may be ex-
erted to secure the safety of the persons and property transported therein and of
those who are employed in such transportation, no matter what may be the source
of the dangers which threaten it. That is to say, it is no objection to such an
exertion of this power that the dangers intended to be avoided arise, in whole or
in part, out of matters connected with intrastate commerce.*''^ For these reasons
it must be held that the original act, as enlarged by the amendatory one, is in-
tended to embrace all locomotives, cars, and similar vehicles used on any railroad
which is highway of interstate commerce.*^^

Power to Impose Absolute Liability. — The power of the legislature to de-
clare an ofifense and to exclude the elements of knowledge and due diligence from
any inquiry as to its commission can not be questioned.*'^ Hence it was compe-
tent for congress, in enacting the Safety Appliance Acts of ^larch 2, 1893,*''^ to
impose an absolute liability upon carriers engaged in moving interstate commerce,
W'hose cars do not satisfy the requirements of those acts, so that the carriers
whose cars do not conform to the requirements of those acts can not escape lia-
bility by showing that they exercised reasonable care in equipping their cars with
the required safety appliances, and that they used due care and diligence to keep
them in repair by the usual inspection. In short, it was competent for congress to
impose upon the carriers an absolute duty which is not discharged by the exer-
cise of reasonable care and diligence.*'^ An absolute duty to provide every car
used in moving interstate traffic with automatic couplers, and to maintain them in
proper condition at all times and under all circumstances, is imposed upon inter-
state carriers, which was not discharged by properly equipping the car with au-
tomatic couplers, and using due diligence to keep them in good working order. ^^

Exclusive Power of Congress. — Congress having determined to regulate the
use of cars running on interstate railroads, so as to provide for the use of certain



61. Southern R. Co. v. United States,
222 U. S. 20, 56 L. Ed. 72, 32 S. Ct. 2.

62. Southern R. Co. v. United States,
222 U. S. 20, 56 L. Ed. 72, 32 S. Ct. 2.

Cars used in moving intrastate traffic
on a railway which is a highway of inter-
state commerce are comprehended by the
provisions of Safety Appliance Act March
2, 1893, c. 196, 27 Stat. 531 (U. S. Comp.
St. 1901, p. 3174), as amended by Act
March 2, 1903, c. 976, 32 Stat. 943 (U. S.
Comp. St. Supp. 1909, p. 1143), declaring,
inter alia, that its provisions and require-
ments shall "apply to all trains, locomo-
tives, tenders, cars, and similar vehicles
used on any railroad engaged in inter-
state commerce, and in the territories and
the District of Columbia, and to all other
locomotives, tenders, cars, and similar ve-
hicles used in connection therewith."
Southern R. Co. v. United States, 222 U.
S. 20, 56 L. Ed. 72, 32 S. Ct. 2, affirming
judgment 164 Fed. 347.

63. Excluding elements of knowledge,
due diligence, etc. — Chicago, etc., R. Co.
V. United States, 220 U. S. 559, 55 L. Ed.
582, 31 S. Ct. 612.

64. 27 Stat, at L. 531, chap. 196, U. S.
Comp. Stat. 1901, April 1, 1896 (29 Stat,
at L. 85, c. 87, U. S. Comp. Stat. 1901, p.
3175, and March 2, 1903 (32 Stat, at L.
943, chap. 976, U. S. Comp. Stat. 1909, p.
1143).

65. Chicago, etc., R. Co. v. United
States, 220 U. S. 559, 55 L. Ed. 582, 31



S. Ct. 612, following St. Louis, etc., R.
Co. V. Taylor, 210 U. S. 281, 52 L. Ed.
1061, 28 S. Ct. 616.

On this point the court says: "We have
nothing to do but to ascertain and de-
clare the meaning of a few simple words
in which the duty is described. It is en-
acted that 'no cars, either loaded or un-
loaded, shall be used in interstate traffic
which do not comply with the standard.'
There is no escape from the meaning of
these words. Explanation can not clar-
ify them, and ought not to be employed
to confuse them or lessen their signifi-
cance. The obvious purpose of the legis-
lature was to supplant the qualified duty
or the common law with an absolute
duty, deemed by it more just. If the
railroad does, in point of fact, use cars
which do not comply with the standard,
it violates the plain prohibitions of the
law, and there arises from that violation
the liability to make compensation to one
who is injured by it." St. Louis, etc., R.
Co. V. Taylor, 210 U. S. 281, 52 L. Ed.
1061, 28 S. Ct. 616.

66. The statute imposed on the carrier
an absolute duty to provide its cars, when
moving interstate traffic, with the required
couplers, and keep them in proper condi-
tion, and that, too, without any reference
to the care or diligence which might have
been exercised in performing its statu-
tory duty. Delk v. St. Louis, etc., R. Co.,
220 U. S. 580, 55 L. Ed. 590, 31 S. Ct. 617.



3453 REGULATION AND CONTROL. §§ 3840-3842

safety appliances on such cars, has by said acts taken affirmative action in regard
thereto, and to this extent the action of congress is exclusive. <^'^

§ 3841. Construction of Act.— The Safety Appliance Act requiring com-
mon carriers "engaged in interstate commerce by railroad" to equip their cars
with automatic couplers, etc., must be construed with the Interstate Commerce
Act which relates to "any common carrier engaged in the transportation of pas-
sengers or property wholly by railroad," etc., "under a common control, manage-
ment, or arrangement, for a continuous carriage or shipment" from one state to
another, such laws being part of one scheme, which is limited strictly to inter-
state commerce, and not intended to affect railroads operated wholly within a
state independent of outside connections, and it is only when there is an ar-
rangement with outside carriers for a continuous carriage from one state to an-
other that the act applies ; and hence, where the difference in gauge between de-
fendant's line and that of a connecting carrier prevented a continuous carriage
in the same car, and there was no through bill of lading and no conventional di-
vision of through charges, each company receiving its own charges according to
its own rates, defendant was not "engaged in interstate commerce" within the
meaning of the act, though the goods carried were intended for shipment beyond
the state.'^^

§ 3842. Carriers Subject to Act.— Where Carrier Has Hauled Inter-
state Freight on Other Occasions. — That a railroad has frequently hauled
interstate traffic is not sufficient in a personal injury action to hold the road
amenable to the Federal Safety Appliance Act requiring cars employed in inter-
state traffic to be equipped with automatic couplers.^"-^

Car Not Used in Interstate Commerce. — The cars of an interstate rail-
road, which are generally used interchangeably and indiscriminately in both in-
terstate and intrastate traffic, are subject to the Safety Appliance Act, while em-
ployed commercially and in such indiscriminate and interchangeable use, but not
while actually devoted to purely intrastate use, even though not set apart solely
and specifically for such use."*^ The act of March 2, 1903, declaring that its pro-
visions relating to train brakes, automatic couplers, grab irons, etc., shall apply
to all trains, and similar vehicles used on any railroad engaged in interstate com-
merce, does not apply to a car not shown to have been ever used or to be in-
tended for use in interstate commerce, congress having no power to regulate
equipment not used or intended to be used in interstate commerce, merely because
it may be used on a railroad engaged in interstate commerce.'''^

67. Exclusive power of congress.^ state Commerce Act. — United States v.
United States v. Southern R. Co., 164 Geddes, 180 Fed. 480, Judgment affirmed
Fed. 347. in Go C. C. A. 320, 131 Fed. 452._

The reference in Safety Appliance Act 69. Where carrier has hauled interstate
March 2, 1903, c. 976, 32 Stat. 943 (U. S. freight on other occasions.— Felt v. Den-
Comp. St. Supp. 1907, p. 885), "to any ver, etc., R. Co., 48 Colo. 249, 110 Pac.
railroad engaged in interstate commerce," 21,5, 1136, 21 Am. & Eng. Ann. Cas. 379.



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