Copyright
Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

. (page 68 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 68 of 214)
Font size
QR-code for this ebook


within the state to points in British Co-
lumbia, as well as in carrying merchan-
dise which had originated outside the
state, and was in transit through the
state to a foreign destination. This trans-
portation was interstate commerce, and
the train was an interstate train, despite
the fact that it may have been carrying
some local freight. In view of the unity
and indivisibility of the service of the
train crew and the paramount character
of the authority of congress to regulate
commerce, the act of congress was ex-
clusively controlling. Northern Pac. R.
Co. V. Atkinson, 222 U. S. 370, 56 L. Ed.
237. 32 S. Ct. 160; Southern R. Co. v.
United States, 222 U. S. 20, 56 L. Ed. 72,
32 S. Ct. 2.

94. Time statute took effect. — People v.
Erie R. Co., 119 N. Y. S. 873, 135 App.
Div. 767, order reversed in 198 N. Y. 369,
91 N. E. 849.

Congress having passed an act (Act
Cong. March 4, 1907, c. 2939, § 2, 34 Stat.
1416 [U. S. Comp. St. Supp. 1909, p. 1170])
prescribing the hours of labor of railroad
telegraph operators engaged in interstate
commerce, to take effect August 12, 1907,
the Acts of the 30th Leg., c. 122, giving
shorter hours, is not operative during the



3459



REGULATION AND CONTROL.



§ 3846



Requirement as to Hours of Labor Construed. — By § 2 of the act it is

made unlawful for common carriers subject to the act to permit any employee
subject to the act to be on duty "for a longer period than sixteen consecutive
hours," or, after that period, to be on duty again until he has had at least ten
consecutive hours off duty, or eight hours after sixteen hours' work in the ag-
gregate ; provided that no telegraph operator and the like shall be permitted to
be "on duty for a longer period than nine hours in any twenty-four period in
all towers, offices, places and stations continuously operated night and day, nor
for a longer period than thirteen hours in all towers, offices, places and stations
operated only during the daytime," with immaterial exceptions. Construing
this proviso forbidding telegraph operators to be on duty for a longer period
than nine hours in any twenty-four hour period, it is held that it does not imply
that such operators shall have fifteen consecutive hours of rest in each twenty-
four, but that the hours off or on duty may be broken up into shorter periods,
and that the requirement is satisfied if the total number of hours on duty does
not exceed nine in each twenty-four hour period. '-^'-^

Intrastate Roads and Employees. — Congress has not attempted to extend
its powers in this behalf to intrastate railroads and employees wholly engaged
in local business.''^ But the power of congress to limit the hours of labor of
employees engaged in interstate transportation can not be defeated either by
prolonging the period of service through other requirements of the carriers, or



time intervening between the passage and
the taking effect of the act of Congress.
State V. Texas, etc., R. Co. (Tex. Civ.
App.), 124 S. W. 984.

95. Requirement as to hours of labor
construed. — Reciniring a railway telegraph
operator to work five and one-half hours,
and then after an interval, three and
one-half more hovirs in the same twenty-
four, is not made unlawful by the provi-
sions of the Act of March 4, 1907 (34 Stat.
L. 1415, 1416. chap. 2939, U. S. Comp.
Stat. Supp. 1909, pp. 1170, 1171), §§ 2, 3,
forbidding common carriers to permit
such employees to be on duty for a longer
period than nine hours in any twenty-
hour period in a place continuously op-
erated night and day. United States v.
Atchison, etc., R. Co., 220 U. S. 37, 55 L.
Ed. 361, 31 S. Ct. 362.

"It is impossible to extract the require-
ment of fifteen hours' continuous leisure
from the words of the statute by gram-
matical construction alone. The proviso
does not say nine 'consecutive' hours, as
was said in the earlier part of the section,
and if it had said so, or even 'for a longer
period than a period of nine consecutive
hours,' still the defendant's conduct would
not have contravened the literal meaning
of the words. A man employed for six
hours and then, after an interval for three,
in the same twenty-four, is not employed
for a longer period than nine consecutive
hours." United States v. Atchison, etc.,
R. Co., 220 U. S. 37, 55 L. Ed. 361, 31 S.
Ct. 302.

96. Intrastate roads and employees.—
Intrastate railroads and employees whf)lly
engaged in local business were not af-
fected by the provisions of Act March 4,
1907, c. 2939, § 2, 34 Stat. 1416 (U. S.
Comp. St. Supp. 1909, p. 1170), making it

4 Car— 23



"unlawful for any common carrier, its of-
ficers or agents, subject to this act, to
require or permit any employee subject
to this act to be or remain on duty" for a
longer period than that prescribed, since
such carriers and employees are defined
in section 1 as those who are engaged in
the transportation of passengers or prop-
erty by railroad in the District of Colum-
bia or the territories, or in interstate or
foreign commerce, although that section
further defines "railroad" as including all
bridges and ferries used or operated in
connection with any railroad, and also all
the road in use by any carrier operating
a railroad by contract, agreement, or
lease, and "employees" as meaning per-
sons actually engaged in, or connected
with, the movement of any train. Balti-
more, etc., R. Co. V. Interstate Commerce
Comm., 221 U. S. 613, 55 L. Ed. 878. 31 S.
Ct. 621.

The statute, in it's scope, is materially
different from the Act of June 11, 1906,
chapter 3073, 34 Stat, at L. 232, U. S.
Comp. Stat. Supp. 1909, p. 1148, which
was before the federal supreme court in
Employers' Liability Cases, 207 U. S. 463,
52 L. Ed. 297, 28 S. Ct. 141. There, while
the carriers described were those engaged
in the commerce subject to* the regulat-
ing power of congress, it appeared that
if "a carrier was so engaged, the act gov-
erned its relation to every employee, al-
though the employment of the latter
niiglit have nothing whatever to do with
interstate commerce. In the present stat-
ute, the limiting words govern the em-
ployees as well as the carriers. Baltimore,
etc, R. Co. V. Interstate Commerce
Comm., 221 U. S. 612. 55 L. Ed. 878, 31
S. Ct. 621.



§ 3846 CARRIERS. 3460

by the commanding of duties relating to interstate and intrastate operations ; and
the statute without affecting its constitutionaHty, may be made to apply, as it
does apply, to trains and employees which, through practical necessity, are em-
ployed in both interstate and intrastate transportation.'^'

Employees Engaged in Both Intrastate and Interstate Commerce. —
The restrictions upon the hours of labor of railway employees connected with the
movement of trains in interstate transportation are not unconstitutional be-
cause many of such employees are, by virtue of practical necessity, also employed
in intrastate transportation.^^

Effect of Exemption in Case of Emergency, etc. — The words "except in
case of emergency," in the proviso in the act of March 4, 1907, § 2, making it
unlawful for railway carriers engaged in transportation in the District of Co-
lumbia or the territories, or in interstate or foreign commerce, to require or
permit employees engaged in such transportation to be or remain on duty for a
longer period than that prescribed, do not make the application of the act so
uncertain as to destroy its validity, even though the proviso in § 3, limiting
the eft'ect of the entire act, can be said to include everything which may be em-
braced within the term "emergency." ^^

Reports as to Excess Service. — Authority to require the secretary or sim-
ilar officer of the carriers subject to Act March 4, 1907, c. 2939, 34 Stat. 1415
(U. S. Comp. St. Supp. 1909, p. 1170), regulating the hours of labor of em-
ployees, to make monthly reports under oath, showing instances where employees
subject to the act have rendered excess service, and giving the cause and ex-
planatory facts, if any, or, where there has been no excess service, to make a
separate oath to that effect in lieu of the form to be used in detailing excess serv-
ice, was conferred upon the interstate commerce commission by the provision
of section 4, empowering it to call to its aid in the enforcement of the act "aV
DOwers granted to it," when read in connection with Act June 18, 1910, c. 309,
§ 14, 36 Stat. 555, authorizing the Commission to require the carriers to file
periodical or special reports under oath concerning any matter about which it is
by law authorized or required to keep itself informed, or which it is required to
enforce.! Carriers subject to the act of March 4, 1907, regulating hours of la-
bor of employees, can not claim a privilege against self-crimination to justify
the refusal to comply with an order of the interstate commerce commission, re-
quiring the secretary or similar officer to make monthly reports under oath, show-
ing the instances where employees subject to the act have rendered excess serv-
ice, and giving the cause and explanatory facts, if any, or where there has been
no excess service, to make a separate oath to that eft'ect, in lieu of the form to

97. l^altimore, etc., R. Co. v. Interstate The Federal Hours of Service Act (Act
Commerce Comm., 221 U. S. 612, 55 L. March 4, 1907, c. 29?,9. § 2, 34 Stat. 1416
Ed. 878, ?A S. Ct. 621; Northern Pac. R. [U. S. Comp. St. Supp. 1909, p. 1170]),
Co. V. Atkinson, 222 U. S. 370, 56 L. Ed. which makes it unlawful for any mter-
237. 32 S. Ct. 160. state carrier by railroad to permit any

The restrictions upon the hours of la- employee, as the terms "railroad" and
bor of railway employees connected with "employee," are defined in_§ 1, to reniam
the movement of trains in interstate trans- on duty for a longer period than those
portation, ma^e by Act March 4, 1907, c. prescribed, is within the constitutional
2939, 34 Stat. 1415 (U. S. Comp. St. Supp. power of congress to regulate interstate
1909, p. 1170), are not unconstitutional be- commerce. United States v. St. Louis,
cause many of such employees are, by etc., R. Co., 1S9 Fed. 954.
virtue of practical necessity, also em- 99. Effect of exemption in case of emer-
pioyed in intrastate transportation. Balti- gency, etc.— Baltimore, etc., R. Co. v. In-
more, etc., R. Co. V. Interstate Commerce terstate Commerce Comm., 221 U. S. 612,
Comm.. 221 U. S. 612, 55 L. Ed. 878, 31 55 L. Ed. 878, 31 S. Ct. 621.
S. Ct. 621. 1. Reports as to excess service.— Balti-

98. Employees also engaged in intra- more, etc., R. Co. z: Interstate Commerce
state commerce.— Baltimore, etc., R. Co. Comm., 221 U. S. 612, 55 L. Ed. 878, 31
V. Interstate Commerce Comm., 221 U. S. S. Ct. 621.

612, 55 L. Ed. 878, 31 S. Ct. 621.



3461 REGULATION AND CONTROL. §§ 3846-3847

be used in detailing excess service.^ The secretary or similar officer of a carrier
subject to the act of March 4, 1907, regulating hours of labor of employees,
can not claim a personal privilege against self-crimination to justify a refusal to
comply with an order of the interstate commerce commission, requiring such official
to make monthly reports under oath, showing the instances where employees sub-
ject to the act have rendered excess service, and giving the cause and explanatory
facts, if any, or, where there has been no excess service, to make a separate oath
to that effect, in lieu of the form to be used in detailing excess service.^ The
transactions to which the required reports relate are corporate transactions,
subject to the regulating power of congress. And, with regard to the keeping
of suitable records or corporate administration, and the making of reports of
corporate action, where these are ordered by the commission under the author-
ity of congress, the officers of the corporation, by virtue of the assumption of
their duties as such, are bound by the corporate obligation, and can not claim a
personal privilege in hostility to the requirement.'*

Unreasonable Searches and Seizures. — The constitutional protection
against unreasonable searches and seizures is not denied by an order of the in-
terstate commerce commission requiring the secretary or other similar officer
of the carriers subject to the act of March 4, 1907, regulating the hours of labor
of employees, to make monthly reports under oath, showing the instances where
employees subject to the act have rendered excess service, and giving the cause
and explanatory facts, if any, or, where there has been no excess service, to
make a separate oath to that effect, in lieu of the form to be used in detailing
excess service.^

§§ 3847-3848. Protection of Lives and Limbs of Employees— § 3847.
In General. — Under its commercial power congress may enact appropriate legis-
lation looking to the protection of the lives and limbs of employees of railroads
engaged in interstate commerce. *"' And with this end in view congress has passed
an act, known as the Safety Appliance Act, to promote the safety of employees
and travelers upon railroads by compelling common carriers engaged in interstate
commerce to equip their cars with automatic couplers and continuous brakes
and their locomotives with driving-wheel brakes, those brakes to be accompanied
with appliances for operating the train-brake system, and to equip all cars used
in moving interstate commerce with couplers coupling automatically by impact,
thus rendering it unnecessary for employees operating the couplers to go be-
tween the ends of the cars.'''

Fellow Servant Doctrine. — Congress may prescribe, as between an inter-
state carrier and such of its employees as are engaged in interstate commerce,
that the carrier shall be liable for the death or injury of any such employee
while so engaged which may result from the negligence of a fellow servant.^
The Federal Employer's Liability Act of June 11, 1906, relating to the liability
of common carriers engaged in commerce between the states, and between the

2. Baltimore, etc., R. Co. v. Interstate v. Southern Pac. Co., ]9f> U. S. 1, 49 L. Ed.
Commerce Comm., 221 U. S. 612, 55 L. 363, 25 S. Ct. 158; Schlemmer v. Buffalo,
Ed. 878, 31 S. Ct. 621. etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27

3. Baltimore, etc., R. Co. v. Interstate S- Ct. 407.

Commerce Comm., 221 U. S. 612, 55 L. Ed. 7. Safety Appliance Act.— Act of March

878 31 S Ct 621 2, 1893, ch. 196, § 2, 27 Stat. :^?,\. John-

4. Baltimore, etc., R. Co. v. Interstate f'\'''-J'?''l]^^''l^^^''-r?''\\^\ M ^^ ^'
Commerce Comm., 221 U. S. 612, 55 L. ^^ ^-//^- ^^' ^^ ?,• ^ ;J''?' Schlemmer
Ed. 878, 31 S. Ct. 621; Wilson v. United 'f ,^"?f '"'/<J%?-,^i^-T'-^^ ^r^\ ^'Ji tV
States, 22] U. S. 361, .55 L. Ed. 771. 31 S. J'^" !^f ^'.^t ^vS*" .1?^= \\ c' R'^nJ^^ ^•
Ct. 538, Ann. Cas. 1912D, 558. >^- •'^'l' ,f ^'- ^•^'- ^"^'^ V'. S- Ct^. 900.

^ -j^ , , , , . 8. Fellow servant doctrine. — Judgments,

5. Unreasonable searches and seizures. i^^ooks v. Soutlicrn Pac. Co., 148 Fed.
—Baltimore etc., R. Co.^ v. Interstate ;)j^r,_ ^,^1 Howard v. Illinois Cent. R. Co.,
Commerce Comm., 221 L. S. 612, 55 L. ,4,s Pcd. 997^ affirmed in Employers' Lia-
Jid. 8/8, 31 vS. Ct. 621. |,j|ity Cases, 207 U. S. 463, 52 L. Ed. 297,

6. Protection of employees. — Johnson 28 S. Ct. 141.



§§ 3847-3848



CARRIERS.



3462



states and foreign nations, to their employees, is within the constitutional power
of congress to regulate interstate and foreign commerce, and applies to carriers
engaged in foreign commerce by sea, making such a carrier liable for an injury
to an employee resulting from the negligence of his fellow servants.^

§ 3848. Employers' Liability Act. — Congress, in the exercise of its power
over interstate commerce, may regulate the relations of railway carriers and
their employees while both are engaged in such commerce, subject always to
the limitations prescribed in the federal constitution, and to the cjualification that
the particulars in which those relations are regulated must have a real or sub-
stantial connection with the interstate commerce in which the carriers and em-
ployees are engaged. The duties of common carriers in respect of the safety
of their employees, while both are engaged in commerce among the state, and
the liability of the former for injuries sustained by the latter, while both are
so engaged, have a real or substantial relation to such commerce, and therefore
are within the range of this power.^*^

Intrastate Employees. — An employer engaged in interstate transportation
does not bring his entire business, including that which is intrastate as well as
that which is interstate, within the legislative power of congress ; nor does the
interstate commerce clause of the constitution authorize congress to extend the
provisions of an employers' liability act to those employees engaged in com-
merce which is wholly intrastate, except in so far as their negligence or mis-
feasance may affect that commerce which may be denominated interstate. And
where the provisions of an act applicable to both -interstate and .intrastate em-
ployees are so interblended as to be inseparable, the statute is repugnant to the
constitution and must fail as a whole. ^^



9. Lancer v. Anchor Line, 155 Fed. 43.3.

10. Employers' Liability Act. — 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; Employers' Liability Cases, 207 U.
S. 463, 52 L. Ed. 297. 28 S. Ct. 141.

It can not be said that because a regu-
lation adopted by congress as to a train
when engaged in interstate commerce
deals with the relation of the master to
the servants operating sucli train or the
relation of the servants engaged in such
operation between tlieniselves, that it is
not a regulation of interstate commerce.
Employers' Liability Cases, 207 U. S. 463,
52 L. Ed. 297, 28 S. Ct. 141.

11. Intrastate employees. — Employers'
Liability Cases, 207 U. S. 463, 52 L. Ed.
297, 28 S. Ct. 141.

A regulation of intrastate as well as of
interstate commerce, and therefore one
beyond the power of congress to enact,
is made by the provision of Employers'
Liability Act July 11, 1906, c. 3073, 34 Stat.
232 [U. S. Comp. St. Supp. 1907, p. 891],
that "every common carrier engaged in
trade or commerce" in the District of Col-
umbia or in the territories or between the
several state shall be liable for the death
or injury of "any of its employees" which
may result from the negligence of "any
of its officers, agents, or employees."
Judgments, Brooks v. Southern Pac. Co.,
148 Fed. 986, and Howard v. Illinois Cent.
R. Co., 148 Fed. 997, affirmed in Employ-
ers' Liability Cases, 207 U. S. 463, 52 L.
Ed. 297, 28 S. Ct. 141.

The invalidity, as applied to intrastate



commerce, of the provision of the Em-
ployers' Liability Act of June 11, 1906,
that "every common carrier engaged in
trade or commerce" in the District of Col-
umbia or in the territories or between the
several states shall be liable for the death
or injury of "any of its employees" which
may result from the negligence of "any
of its officers, agents, or employees," in-
validates such provision as applied to in-
terstate commerce. Employers' Liability
Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S.
Ct. 141.

The statute, whilst it embraces subjects
within the authority of congress to reg-
ulate commerce, also includes subjects
not within its constitutional power and
the two are so interblended in the statute
that they are incapable of separation.
The statute is repugnant to the consti-
tution therefore and nonenforceable. Em-
ployers' Liability Cases, 207 U. S. 463, 52
L. Ed. 297, 28 S. Ct. 141.

The act, being addressed to all common
carriers engaged in interstate commerce,
and imposing a liability upon them in
favor of any of their employees, without
qualification or restriction as to the busi-
ness in which the carriers or their em-
ployees may be engaged at the time of
the injury, of necessity includes subjects
wholly outside of the power of congress
to regulate commerce. Employers' Lia-
bility Cases, 207 U. S. 463, 52 L. Ed. 297,
28 S. Ct. 141.

As the act thus includes many subjects
wholly beyond the power to regulate com-
merce, and depends for its sanction upon



3463



REGULATION AND CONTROL.



§ 3848



Territories and Places under Exclusive Federal Control. — The federal
power of regulation within the states is limited to the right of congress to con-
trol transactions of interstate commerce ; it has no authority to regulate commerce
wholly of a domestic character.^- But the power of congress to deal with trade
and commerce in the District of Columbia and the territories does not depend
upon the authority of the interstate commerce clause of the constitution, and
the invalidity, so far as interstate commerce is concerned, of the provisions of
the Federal Employers' Liability Act of June 11, 1906, does not invalidate such
of its provisions as attempt to regulate commerce within the District of Columbia
and the territories.^^

Classification of Carriers and Employees. — The imposition of the liability
created by Employers' Liability Act April 22, 1908, c. 149, ZS Stat. 65 (U. S.
Comp. St. Supp. 1909, p. 1171), upon interstate carriers by railroad only, and
for the benefit of all their employees engaged in interstate commerce, although
some are not subjected to the peculiar hazards incident to the operation of trains,
or to hazards that differ from those to which other employees in such commerce
not within the act are exposed, does not invalidate the statute under the due
process of law clause of the fifth amendment to the federal constitution, on the
ground that it makes an arbitrary and unreasonable classification, even assuming
that that clause is equivalent to the provision of the fourteenth amendment
securing the equal protection of the laws.^'*

Forbidding or Invalidating Contract or Device Waiving, Modifying or
Evading Provisions of Act. — The power to enact such legislation carries with
it the power to prohibit any contract or device the purpose and intent of which
is to waive, modify, evade, or in anywise thwart the purpose of the act by re-
lieving the employer of his liability thereunder, and provisions forbidding the



that authority, it results that the act is
repugnant to the constitution, and can not
be enforced in view of the fact that the
objectionable and unobjectionable pro-
visions of the act are so interblended that
they can not be separated, and even if
they could, it is plain that congress would
not have enacted the act, or so much of
it as would remain, with the unconstitu-
tional provisions eliminated. Employers'
Liability Cases, 207 U. S. 46.3, 52 L. Ed.
297, 28 S. Ct. 141.

Act of 1908. — The Employers' Liability
Act April 22, 1908, c. 149, 35 Stat. 65 (U.
S. Comp. St. Supp. 1909, p. 1171), is not
unconstitutional. Mondou v. New York,
etc.. R. Co., 22.3 U. S. 1, 56 L. Ed. 327, 32
S. Ct. 169, 38 L. R. A., N. S., 44, revers-
ing judgment 73 Atl. 762, 82 Conn. 373.

The power of congress, under the com-
merce clause, to regulate the liability of
an interstate railway carrier for the death
or injury of an employee engaged in in-
terstate commerce, which may result from
the negligence of a fellow servant, is not
exceeded by the enactment of Employer's
Liability Act April 22, 1908, c. 149, 35 Stat.
65 (U. S. Comp. St. Supp. 1909, p. 1171),
although that act embraces instances
where the casual negligence is that of an
employee engaged in intrastate commerce.
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.

The present act, unlike the one con-
demned in Employers' Liability Cases,
207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141,



deals only with the liability of a carrier
engaged in interstate commerce for in-
juries sustained by its employees while
engaged in such commerce. And this be-
ing so, it is not a valid objection that the
act embraces instances where the causal
negligence is that of an employee en-
gaged in intrastate commerce; for_ such
negligence, when operating injuriously
upon an employee engaged in interstate
commerce, has the same effect upon that
commerce as if the negligent employee
were also engaged therein. 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.

12. Territories and places under exclu-
sive federal control. — El Paso, etc., R. Co.
V. Gutierrez, 215 U. S. 87, 54 L. Ed. 106,
30 S. Ct. 21.

13. Congress had the power to enact so



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 68 of 214)