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much of the Federal Employers' Liability
Act of June 11, 1906, as provides that every
common carrier engaged in trade or com-
merce in any territory of the United
States shall be liable for the death or in-
jury of its employees which may result
from the negligence of any of its offi-
cers, agents, or employees. El Paso, etc.,
R. Co. v: Gutierrez, 215 U. S. 87, 54 L.
l',(l. IOC. 30 S. Ct. 21.

14. Classification of carriers and em-
ployees. — MoiuIdu 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, reversing 82
Conn. 373, 73 Atl. 762, and affinning 173
Fed. 494.



§ 3848



CARRIERS.



3464



making of such contracts or the employment of any such device or evasion are
not unconstitutional as infringing the liberty of contract guaranteed by the fifth
amendment. ^^

Existing Contracts. — The power of congress, in its regulation of interstate
commerce, and of commerce in the District of Columbia and in the territories,
to impose this liability, is not fettered by the necessity of maintaining existing
arrangements and stipulations which would conflict with the execution of its
policy. To subordinate the exercise of the federal authority to the continuing
operation of previous contracts would be to place, to that extent, the regulation
of interstate commerce in the hands of private individuals, and to withdraw from
the control of congress so much of the field as they might choose, by prophetic
discernment, to bring within the range of their agreements. The constitution
recognizes no such limitation. It is of the essence of the delegated power of
regulation that, within its sphere, congress should be able to establish uniform
rules, immediately obligatory, which, as to future action, should transcend all
inconsistent provisions. Prior arrangements are necessarily subject to this para-
mount authority. Existing as well as future contracts of the prescribed charac-
ter, therefore, fall within the condemnation in the Employers' Liability Act of
April 22, 1908, § 5, of "any contract, rule, regulation, or device whatsoever,
the purpose or intent of which shall be to enable any common carrier to exempt
itself from any liability created by this act." ^'^



15. Power to make act effective by for-
bidding or invalidating contracts or de-
vice waiving, modifying or evading pro-
visions of act. — "Next in order is the
objection that the provision in § 5, de-
claring void any contract, rule, regula-
tion, or device, the purpose or intent of
which is to enable a carrier to exempt
itself from the liability which the act
creates, is repugnant to the fifth amend-
ment to the constitution as an unwar-
ranted interference with the liberty of
contract. But of this it suffices to say,
in view of our recent decisions in Chi-
cago, etc., R. Co. V. McGuire, 219 U. S.
549, 55 L. Ed. 328, 31 S. Ct. 259; Atlantic,
etc., R. Co. V. Riverside Mills, 219 U. S.
186, 55 L. Ed. 167, 31 S. Ct. 164, 31 L. R.
A., N. S., 7, and Baltimore, etc., R. Co. v.
Interstate Commerce Comm., 221 U. S.
612, 55 L. Ed. 878, 31 S. Ct. 621, that if
congress possesses the power to impose
that liability, which we here hold that it
does, it also possesses the power to insure
its efficacy by prohibiting any contract,
rule, regulation, or device in evasion of
it." 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., 4.4; Philadelphia, etc.,
R. Co. V. Schubert, 224 U. S. 603, 56 L.
Ed. 911, 32 S. Ct. 589.

Congress, possessing the power exer-
ercised in Employers' Liability Act April
22, 1908. c. 149, 35 Stat. 65 (U. S. Comp.
St. Supp. 1909, p. 1171), to regulate the re-
lations of interstate railway carriers and
their employees engaged in interstate
commerce, made no unwarranted interfer-
ence with the liberty of contract, con-
trary to Const. U. S. amend. 5, by declar-
ing in the fifth section of that act any
contract, rule, regulation, or device the
purpose or intent of which is to enable



the carrier to exempt itself from the lia-
bility therein created shall be void. Mon-
dou 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, reversing judgment 73 Atl. 762,
82 Conn. 373.

16. Existing contracts. — If congress may
compel the use of safety appliances, John-
son ?'. Southern Pac. Co., 196 U. S. 1, 49
L. Ed. 363, 25 S. Ct. 158, or, fix the hours
of service of employees, Baltimore, etc.,
R. Co. V. Interstate Commerce Comm.,
221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621,
its declared will, within its domain, is not
to be thwarted by any previous stipula-
tion to dispense with the one or to ex-
tend the other. And so, when it decides
to protect the safety of employees by es-
tablishing rules of liability of carriers
for injuries sustained in the course of
their service, it may make the rules uni-
formly efifective. These principles, and
the authorities which sustain them, have
been so lately reviewed by this court that
extended discussion is unnecessary. Phil-
adelphia, etc., R. Co. V. Schubert, 224 U.
S. 603, 56 L. Ed. 911, 32 S. Ct. 589; Louis-
ville, etc., R. Co. V. Mottley, 219 U. S.
467, 55 L. Ed. 297, 31 S. Ct. 265, 34 L. R.
A., N. S., 671.

Congress had the power to enforce the
regulation validly prescribed by the Em-
ployers' Liability Act of April 22, 1908
(35 Stat, at L. 65, chap. 149, U. S. Comp.
Stat. Supp. 1911, p. 1322), § 5, by prevent-
ing the acceptance of benefit? under a
contract of membership in a railway re-
lief department from operating as a bar
to the recovery of damages for the injury
or death of an employee, and by avoiding
any agreement to that effect. PJiiladel-
phia, etc., R. Co. z\ Schuliert, 224 U. S.
603, 56 L. Ed. 911, 32 S. Ct. 589. See, also,



3465



REGULATION AND CONTROIv.



§ 3848



Particular Provisions Considered. — Congress may prescribe, as between
an interstate carrier and sucb of its employees as are engaged in interstate com-
merce, tliat the carrier shall be liable for the death or injury of any such em-
ployee while so engaged which may result from the negligence of a fellow serv-
ant.^" And congress did not exceed its power to regulate the relations of inter-
state railway carriers and their employees engaged in interstate commerce by
enacting Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 ( U. S.
Comp. St. Supp. 1909, p. 1171), which abrogates the fellow servant rule, ex-
tends the carrier's liability to cases of death, and restricts the defenses of con-
tributory negligence and assumption of risk, since no one has any vested right
in any rule of the common law, and the natural tendency of such changes is to
promote the safety of the employees and to advance the commerce in which they
are engaged. ^■-

Exclusive Operation of Federal Act. — State and territorial legislation un-
dertaking to regulate the liability of interstate carriers for the death or injury
of their employees while engaged in interstate commerce is superseded by the
legislation of congress in so far as it covers the same field. ^^



Chicago, etc., R. Co. v. McGuire, 219 U.
S. 549, 55 L. Ed. 328, 31 S. Ct. 259, af-
firming judgment, 138 Iowa 664, 116 N.
W. 801.

Stipulations making the acceptance of
henefits on account of the injury or death
of an employee under a contract of mem-
bership in a railway relief department
equivalent to a release of the company's
liability must be deemed to fall within the
condemnation in the Employers' Liability
Act of April 22, 1908, § 5, of any contract,
rule, regulation, or device whatsoever, the
purpose or intent of which shall be to en-
able any common carrier to exempt itself
from any liability created by this act, es-
pecially in view of the proviso of that
section permitting a set-ofif of any sum
which the company may have contributed
toward any benefit paid to the employee
or his legal representative, t'hiladelphia,
■etc., R. Co. V. Schubert, 224 U. S. 603, 56
L. Ed. 911, 32 S. Ct. 589.

Construing the condemnation in the
Employers' Liability Act of April 22, 1908,
■§ 5, of "any contract, rule, regulation, or
device whatsoever, the purpose or intent
of which shall be to enable any common
carrier to exempt itself from any liability
created by this act" as embracing an exist-
ing agreement under which the acceptance
of" benefits on account of the injury or
death of an employee under a contract of
membership in a railway relief depart-
ment was to release the company from li-
ability does not render the section invalid,
since such agreement must necessarily be
regarded as having been made subject to
the possibility that at some future time
•congress might so exert its power to reg-
^tlate commerce as to render the agree-
TTient unenforceable, or impair its value.
Philadelphia, etc., R. Co. v. Schubert, 224
V. S. 603, 56 L. Ed. 911, 32 S. Ct. 589.

17. Particular provisions considered.—
Employers' Liatjilily Cases, 207 U. S. 46;',
62 L. Ed. 297, 28 S. Ct. 141, affirming 14S
Fed. 986, 148 Fed. 997.



18. 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.

19. Exclusive operation of federal 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, reversing 82 Conn. 373,
73 Atl. 762, and affirming 173 Fed. 494;
El Paso, etc., R. Co. v. Gutierrez, 215 U.
S. 87, 54 L. Ed. 106, 30 S. Ct. 21.

The laws of the several states, in so far
as they cover the same field, were super-
seded by the enactment by congress of
Employers' Liability Act April 22, 1908,
c. 149, 35 Stat. 65 (U. S. Comp. St. Supp.
1909, p. 1171), regulating the liability of
interstate railway carriers for the death
or injury of their employees while en-
gaged in interstate 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, reversing judgment 73 Atl. 762, 82
Conn. 373.

In view of the plenary power of con-
gress under the constitution over the ter-
ritories of the United States, subject only
to certain limitations and prohilntions not
necessary to notice now, there can be no
doubt that an act of congress undertaking
to regulate commerce in the District of
Columbia and the territories of the United
States would necessarily supersede the
territorial law regulating the same sub-
ject. El Paso, etc., R. Co. v. Gutierrez,
215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21.

The Federal Employers' Liability Act
of June 11, 1906 (34 Stat, at L. 232. chap.
3073, U. S. Comp. Stat. Supp. 1907, p. 891),
by undertaking to regulate commerce in
the District of Columbia and the terri-
tories of the United States, necessarily
superseded any otherwise applicable pro-
visions of the New Mexico Act of March
11, 1903, governing suits for death and
personal injuries. El Paso, etc., R. Co. v.
Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30
S. Ct. 21.



§§ 3848-3849 carriers. 3466

Enforcement of Act — Jurisdiction of State Courts. — Rights arising under
the congressional Employers' Liahility Act may be enforced, as of right, in the
courts of the states when their jurisdiction, as prescribed by local laws, is ade-
quate to the occasion. The enforcement of rights under the act of April 22,
1908, can not be regarded as impliedly restricted to the federal courts, in view
of the concurrent jurisdiction provision of the Judiciary Act of August 13, 1888
(25 Stat, at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), § 1, and of the
amendment made by the act of April 5, 1910 (36 Stat, at L. 291, chap. 143), to
the original Employers' Liability Act, which, instead of granting jurisdiction
to the state courts, presupposes that they already possess it. Nor may jurisdic-
tion of an action to enforce the rights arising under the act of April 22, 1908,
be declined by the courts of a state whose ordinary jurisdiction, as prescribed
by local laws, is adequate to the occasion, on the theory that such statute is not
in hanuony with the policy of the state, or that the exercise of such jurisdiction
will be attended by inconvenience and confusion because of the different stand-
ards of right established by the congressional act and those recognized by the
laws of the state. 2"

Distribution of Damages. — The distribution of damages recoverable, under
the act of April 22, 1908, from an interstate railway carrier, for the death of
an employee while engaged in interstate commerce, is governed by the provisions
of that statute, which necessarily supersede any applicable state legislation.-^

§ 3849. Qualifications, Duties and Liabilities of Employees. — The

power of congress to regulate interstate and foreign commerce is plenary, and, as
incident to it, congress may legislate as to the qualifications, duties, and liabilities
of employees and others on railway trains engaged in such commerce; and such
legislation will supersede any state action on the subject, but until such legisla-
tion is had, it is clearly within the competency of the states to provide against
accidents on trains whilst within their limits. -

Members of Labor Unions. — There is no such connection between interstate
commerce and membership in a labor organization as to authorize congress to
enact legislation making it a crime for the officers or agents of interstate carriers
to discharge employees because of their membership in such organizations.-^
The act of June 1, 1898, which makes it a criminal offense for any interstate car-
rier as an employer to recjuire any "employee or person seeking employment"
to enter into an agreement not to become or remain a member of any labor or-
ganization, or to threaten any employee with loss of employment or unjustly dis-
criminate against any employee because of his membership in such labor organi-
zation, is void, as not within the constitutional power of congress to regulate in-
terstate commerce.-^

20. Enforcement of act — Jurisdiction of Smith :•. Alabama, 124 U. S. 465, 31 L. Ed.

state courts. — Mondou z\ Xew York, etc., 508, S S. Ct. 564; Hennington t'. Georgia,

R. Co., 22.3 U. S. 1, 56 L. Ed. 327, 32 S. 163 U. vS. 299. 41 L. Ed. 166, 16 S. Ct. 1086.

Ct. 169, 38 L. R. A., N. vS., 44. 23. Members of labor unions. — There

21 Distribution of damages. — Mondou is no such connection between inter-

7'. New York, etc., R. Co., 223 U. S. 1, state commerce and membership in

56 L. Ed. 327, 33 S. Ct. 169, 38 L. R. A., a bi^or organization as to authorize Con-

N. S., 44. gress, bv Act June 1, 1898, c. 370, § 10, 30

22. Qualifications, duties and liabilities Stat. 424 fU. S. Comp. St. 1901, p. 3205],

of employees. — Nashville, etc.. R. Co. :■. to make it a crime against the United

Alabama, 128 U. S. 96, 32 L. Ed. 352, 9 S. States for an agent or officer of an inter-

Ct. 28; Smith v. Alabama, 124 U. S. 465, state carrier, having full authority in the

31 L. Ed. 508, 8 S. Ct. 564; Hennington premises from his principal, to discharge

V. Georgia, 163 U. S. 299, 41 L. Ed. 166, an employee from service to such carrier

16 S. Ct. 1086. because of such membership on his part.

Qualifications of locomotive engineers. Judgment, United States z'. Adair, 152

— It would be competent for congress to Fed. 737, reversed in 208 U. S. 161, 52 L.

prescribe the qualifications of locomotive Ed. 436, 28 S. Ct. 277, 13 Am. & Eng. Ann.

engineers for employment by carriers en- Cas. 764.

gaged in foreign or interstate commerce. 24. Act June 1, 1898, ch. 370, § 10; Or-



346/



REGULATION AND CONTROIv.



3850-3851



§ 3850. Arbitration between Railroad and Employees.— Congress has

exercised the power granted in respect to interstate commerce by providing for
arbitration between interstate railroad companies and their employees. ^^

§ 3851. Conspiracy to Obstruct Transportation.— The relations of the
general go\ernment to interstate commerce and the transportation of the mails
are such as to authorize a direct interference to prevent a forcible obstruction
thereof. Therefore, as authority in governmental affairs implies both a power
and a duty, when the railroad interstate transportation of persons and property,
as well as the carriage of the mails, is forcibly obstructed, and a combination
and conspiracy exists to subject the control of such transportation to the will of
the conspirators, a United States court, sitting as a court of equity, has juris-
diction to issue, at the instance of the government, an injunction to restrain such
obstruction and prevent carrying into effect such conspiracy.-'' And the mere
fact that the national government has no pecuniary interest in the controversy is
not sufficient to exclude it from the courts, or prevent it from taking measures
therein to fully discharge its constitutional duties.^'''



der V. Louisville, etc., R. Co., 148 Fed.
437.

There is no such connection between
interstate commerce and membership in
a labor organization as to authorize con-
gress, by Act June 1, 1898, to make it a
crime against the United States for an
agent or officer of an interstate carrier,
having full authority in the premises
from his principal, to discharge an em-
ployee from service to such carrier be-
cause of such membership on his part.
Judgment United States v. Adair, 153
Fed. 737, reversed in 208 U. S. 161, 52 L.
Ed. 436, 28 S. Ct. 277, 13 Am. & Eng. Ann.
Cas. 7G4.

25. Arbitration between railroad com-
panies and employees. — Act of October 1,
1888, ch. 1063, 25 Stat. 50]. In re Debs,
158 U. S. 564, 39 L. Ed. 1092, 15 S. Ct. 900.

26. Conspiracy to obstruct transporta-
tion. — In the case of In re Debs, 158 U.
S. 564, 39 L. Ed. 1092, 15 S. Ct. 900, the
court in summing up its conclusions, said:
"The complaint hied in this case clearly
showed an existing obstruction of artifi-
cial highways for the passage of inter-
state commerce and the transmission of
the mail — an obstruction not only tempo-
rarily existing, but threatening to con-
tinue; * * * under such complaint the
circuit court had power to issue its proc-
ess of injunction; * * * it having been
issued and served on these defendants,
the circuit court had authority to inquire
whether its orders had been disobeyed,
and when it found that they had been,
then to proceed under § 725, Revised Stat-
utes, which grants power 'to punish, by
fine or imi)risonment, * * * disobedi-
ence, * * * i^y any party * * * or
other person, to any lawful writ, process,
order, rule decree or command,' and enter
the order of punishment comi)lained of;
and, finally, * * * the circuit court, hav-
ing full jurisdiction in the premises, its
finding of the fact of disobedience is not
open to review on habeas corpus in this



or any other court. Ex parte Watkins
(U. S.), 3 Pet. 193, 7 L. Ed. 650; Ex parte
Yarbrough, 110 U. S. 651, 28 L. Ed. 274,
4 S. Ct. 152; Ex parte Terry, 128 U. S. 289,
32 L. Ed. 405, 9 S. Ct. 77; In re Swan, 150
U. S. 637, 37 L. Ed. 1207, 14 S. Ct. 225;
United States v. Pridgeon, 153 U. S. 48,
38 L. Ed. 631, 14 S. Ct. 746."

In In re Debs, 158 U. S. 564, 39 L. Ed.
1092, 15 S. Ct. 900, it was said by Mr. Jus-
tice Brewer, speaking for the court: "If a
state, with its recognized power of sover-
eignty, is impotent to obstruct interstate
commerce, can it be that any mere volun-
tary association of individuals within the
limits of that state has a power which the
state itself does not possess?" Addyston
Pipe, etc., Co. v. United States, 175 U.
S. 211, 44 L. Ed. 136, 20 S. Ct. 96.

Other modes of preventing unlawful
and forcible interference. — "The entire
strength of the nation may be used to en-
force in any part of the land the full and
free exercise of all national powers and
the security of all rights entrusted by the
constitution to its care. The strong arm
of the national government may be put
forth to brush away all obstructions to
the freedom of interstate commerce or
the transportation of the mails. If the
emergency arises, the army of the na-
tion, and all its militia, are at the service
of the nation to compel obedience to its
laws." In re Debs, 158 U. S. 564, 39 L.
Ed. 1092, 15 S. Ct. 900.

27. Interest of government in contro-
versy. — "WlK'ncver the wrongs com-
plained of are such as affect the public at
large, and are in respect of matters which
by the constitution arc entrusted to the
care of the nation, and concerning which
the nation owes the duty to all the citi-
zens of securing to them their common
rights, then the mere fact that the govern-
ment has no pecuniary interest in the con-
troversy is not sufficient to exclude it
from the courts, or prevent it from taking
measures therein to fully discharge those



§§ 3852-3856 carriers. 3468

§ 3852. Express Companies.- — Where an express company takes pack-
ages of merchandise coming from other states at a railroad or steamer terminal,
and transports them by wagon through the streets and avenues of a city to
the addressees, such local transportation of interstate packages constitutes in-
terstate commerce, and is therefore within the exclusive jurisdiction of the
federal government.^^ The provision of Act Feb. 8, 1897, making it unlawful
for any person to deposit with an express company or other common carrier, for
carriage from one state or territory to another, any article or thing designed
or intended for the prevention of conception, is not unconstitutional, on the
ground that it is a police regulation, and as such a matter over which the states
have exclusive jurisdiction, but is within the constitutional powers of congress to
regulate interstate commerce. ^'^

The carriage of lottery tickets from one state to another by an express
company engaged in carrying freight and packages from state to state is inter-
state commerce, which Congress, under its power to regulate, may prohibit by
making it an offense against the United States to cause such tickets so to be
carried. ^"^

§ 3853. Ships. — Undisputed authority exists in congress to impose ton-
nage duties, and such duties, to a greater or less extent, have been imposed by
congress ever since the federal government was organized under the constitution.
They have usually been exacted when the ship or vessel entered the port.^^

§ 3854. Wharves. — Wharves are related to commerce and navigation as
aids and conveniences, and as such come within the regulating power of congress,
but being local in their nature and recjuiring special regulations for particular
places, the regulation thereof, in the absence of congressional legislation on the
subject, properly belongs to the states in which they are situated. ^^

§ 3855. Bridges. — Under its power to regulate interstate commerce and
to free navigation from unreasonable obstructions, congress has power to regu-
late bridges that affect navigation or that are employed in the moving interstate
commerce. ^^

Constructed under Power of State. — A bridge over an interstate water-
way, though erected under the sanction of state, and not an illegal structure, or
an unreasonable obstruction to navigation in the condition of commerce and
navigation when erected, must be taken as having been constructed with knowl-
edge of the paramount power of congress to regulate commerce among the
states, and subject to the condition or possibility that congress might, at some
time after its construction, and for the protection or benefit of the public, exert
its constitutional power to protect free navigation as it then was against un-
reasonable obstructions.-'^"*

§ 38 56. Navigable Waters. — Under the commerce clause of the federal
constitution, congress has charge of all navigable waters ni the United States. ^^

constitutional duties." In re Debs, 158 U. 2 S. Ct. 732.

S. 564, 39 L. Ed. 1092, 15 S. Ct. 900. See, 33. Bridges.— Escanaba, etc., Transp.

also, Louisiana v. Texas, 176 U. S. 1, 44 Co. v. Chicago, 107 U. S. 678, 27- L. Ed.

L. Ed. 347, 20 S. Ct. 251. 765, 2 S. Ct. 185; Union Bridge Co. v.

28. Express companies.— Barrett v. United States, 204 U. S. 364, 51 L. Ed.
New York, 183 Fed. 793. 523, 27 S. Ct. 367.

29. United States v. Popper, 98 Fed. 423. 34. Constructed under power of state. —

30. Champion v. Ames, 23 S. Ct. 321, 188 Judgment, United States v. Monongahela
U. S. 321, 47 L. Ed. 492. Bridge Co., 160 Fed. 712, affirmed in 216

31. Ship's-tonnage duties.— State Ton- U. S. 177, 30 S. Ct. 356.

nage Tax Cases (U. S.), 12 Wall. 204, 20 35. Navigable waters.— In re Southern

L. Ed. 370. Wisconsin Power Co., 140 Wis. 245, 122



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