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ified capacities on railroads within the state, unless such employees shall have
first undergone an examination by a state board with respect to their power of
vision and obtained a license therefrom, is not void as a regulation of commerce



7. Bells, whistles and signal lights. —

Cleveland, etc.. R. Co. v. Illinois, 177 U.
S. 514, 44 L. Ed. 868, 20 S. Ct. 723.

8. Length and frequency of stops.—
Houston, etc., R. Co. v. Mayes, 201 U.
S. 321, 50 L. Ed. 772, 26 S. Ct. 491; Glad-
son V. Minnesota, 166 U. S. 427, 41 L.
Ed. 1064, 17 S. Ct. 627.

9. Heating and lighting of cars. —
Houston, etc., R. Co. v. Mayes, 201 U.
S. 321, 50 L. Ed. 772, 26 S. Ct. 491.

10. Furnishing food and water to live
stock. — Houston, etc., R. Co. v. Mayes,
201 U. S. 321, 50 L. Ed. 772, 26 S. Ct.
491.

11. Regulations local in character. —
Crutcher %'. Kentucky, 141 U. S. 47, 35
L. Ed. 649, 11 S. Ct. 851; Gladson v. Min-
nesota, 166 U. S. 427, 41 L. Ed. 1064, 17
S. Ct. 627; Smith v. Alabama, 124 U. S.
465, 31 L. Ed. 508, 8 S. Ct. 564.

12. Examination of engineers as to
competency. — Smith v. Alabama, 124 U.
S. 465, 31 L. Ed. 508, 8 S. Ct. 564, citing
Sherlock v. Ailing, 93 U. S. 99, 23 L.
Ed. 819. See, also, Hennington v. Geor-
gia, 163 U. S. 299, 41 L. Ed. 166, 16 S.
Ct. 1086; Missouri, etc., R. Co. v. Haber,
169 U. S. 613, 42 L. Ed. 878, 18 S. Ct.
488; Nashville, etc., R. Co. v. Alabama,
128 U. S. 96, 32 L. Ed. 352, 9 S. Ct. 28;
Anderson v. United States, 171 U. S. 604,
43 L. Ed. 300, 19 S. Ct. 50; Plumley v.
Massachusetts, 155 U. S. 461, 39 L. Ed.
223, 15 S. Ct. 154; Chicago, etc., R. Co.
V. Solan. 169 U. S. 133, 43 L. Ed. 688, 18
S. Ct. 289; Richmond, etc., R. Co. v. Pat-
terson Tobacco Co., 169 U. S. 311, 42 L.
Ed. 759, 18 S. Ct. 335; Western Union
Tel. Co. V. James, 163 U. S. 650, 40 L.



Ed. 1105, 16 S. Ct. 934; Cleveland, etc.,
R. Co. V. Illinois, 177 U. S. 514, 44 L. Ed.
868, 20 S. Ct. 722; Pennsylvania R. Co.
V. Hughes, 191 U. S. 477, 48 L. Ed. 268,
24 S. Ct. 132.

If a locomotive engineer, running an
engine, in the business of transporting
passengers and goods between Alabama
and other states, should, while in that
state, by mere negligence and reckless-
ness in operating his engine, cause the
death of one or more passengers carried,
he might certainly be held to answer to
the criminal laws of the state if they
declare the offense in such a case to be
manslaughter. The power to punish for
the offense after it is committed certainly
includes the power to provide penalties
directed, as are those in the statute in
question, against those acts of omission
which, if performed, would prevent the
commission of the larger offense. Smith
V. Alabama, 124 U. S. 465, 31 L. Ed. 508,
8 S. Ct. 564.

It would be competent for congress to
legislate upon this subject matter, and
to prescribe the qualifications of locomo-
tive engineers for employment by carri-
ers engaged in foreign or interstate com-
merce. It has legislated upon a similar
subject by prescribing the qualifications
for pilots and engineers of steam vessels
engaged in the coasting trade and navi-
gating the inland waters of the United
States while engaged in commerce among
the states, Rev. Stat. Tit. 52, §§ 4399-
4500, and such legislation undoubtedly is
justified on the ground that it is inci-
dent to the power to regulate interstate
commerce. Smith v. Alabama, 124 U.
S. 465, 31 L. Ed. 508, 8 S. Ct. 564.



3505



REGULATION AND CONTROL.



§ 3881



among the states, when appHed to the interstate operations of railroads, but is
a valid exercise of the police power of the state, designed to secure the welfare
and safety of the public, within the territorial limits of the state and is valid
until displaced by congressional legislation on the subject. So far as such
statute afifects interstate commerce, it does so only indirectly, incidentally and
remotely, so as not to amount to a regulation of that commerce within the mean-
ing of the constitution. 12

Inspection of Locomotives. — The passage by congress of an act regulating
interstate commerce from the date of such passage excludes the power of the
states to legislate and supersedes state laws, though the Federal Act is not to take
efifect until a subsequent date. Act Ohio May 20, 1910, and regulations made
thereunder providing for the equipment and inspection of locomotive boilers
used on railroads in the state, held superseded as to locomotives used in interstate
commerce by the federal boiler inspection act of February 11, 191 1.^* The
equipment of seagoing barges, which steamboat inspectors are required to inspect
by Act of Congress, May 28, 1908, is not limited to the appliances which barges
are required to carry by § 11, but includes a steam boiler used only for loading
and unloading and weighing anchor, and hence, as to such boiler, a state inspec-
tion law can not operate. ^-^ The inspection of boilers used solely for loading and
unloading the cargo and weighing anchor, and not for purposes of propulsion on
barges or lighters, having no means of progress except by being towed, but which
are used exclusively upon tidewater is a matter as to which the United States
may assume jurisdiction, but not within its exclusive jurisdiction, and hence,
unless congress has legislation relative thereto, such boilers are subject to St.
1907, c. 465, as amended by St. 1909, c. 393, § 1, requiring the inspection of all
steam boilers, except those under the jurisdiction of the United States. ^^ It is a



13. Examination of employees as to
power of vision. — Nashville, etc., R. Co.
V. Alabama, 128 U. S. 96, 32 L. Ed. 352,
9 S. Ct. 28. See, also, Smith v. Alabama,
124 U. S. 465, 31 L. Ed. 508, 8 S. Ct. 564;
Sherlock v. Ailing, 93 U. S. 99, 23 L.
Ed. 819; Missouri, etc., R. Co. v. Haber,
169 U. S. 613, 42 L. Ed. 878, 18 S. Ct.
488; Hennington v. Georgia, 163 U. S.
299, 41 L. Ed. 166, 16 S. Ct. 1086; Chi-
cago, etc., R. Co. V. Solan, 169 U. S.
133, 42 L. Ed. 688, 18 S. Ct. 289; Rich-
mond, etc., R. Co. V. Patterson Tobacco
Co., 169 U. S. 311, 42 L. Ed. 759, 18 S.
Ct. 335; Cleveland, etc., R. Co. v. Illinois,
177 U. S. 514, 44 L. Ed. 868, 20 S. Ct.
722.

14. Inspection of locomotives. — Louis-
ville, etc., R. Co. V. Hughes, 201 Fed.
727.

The inspection of boilers used solely
for loading and unloading and weighing
anchor on barges or lighters, used ex-
clusively on tidewater, is not within the
exclusive jurisdiction of Congress, and
hence, unless congress has legislated rel-
ative thereto, such boilers are subject to
St. 1907, c. 465, as amended by St. 1909,
c. 393, § 1, requiring the inspection of all
steam boilers, except those under the
jurisdiction of the United States. Com-
monwealth V. Breakwater Co., 214 Mass.
10. 100 N. E. 1034.

15. Commonwealth v. Breakwater Co.,
214 Mass. 10, 100 N. E. 1034.

St. 1907, c. 465, as amended by St. 1909,



c. 393, § 1, concerning inspection of steam
boilers, construed to apply to boilers on
barges used on tidewater, unless con-
gress has legislated relative thereto, is
not invalid as an interference with in-
terstate or foreign commerce. Common-
wealth V. Breakwater Co., 214 Mass. 10,
100 N. E. 1034.

16. Where congress has not acted. —
Commonwealth v. Breakwater Co., 214
Mass. 10, 100 N. E. 1034.

Act May 28, 1908, c. 212, § 10, 35 Stat.
428 (U. S. Comp. St. Supp. 1911, p. 1243),
requires local steamboat inspectors to in-
spect the hull and equipment of seagoing
barges, and to satisfy themselves that
they are of a structure suitable for the
service in which they are employed, have
suitable accommodations for the crew,
and are in a condition to warrant the
belief that they may be used in navigation
with safety to life. Section 11 requires
barges to be equipped with at least one
lifeboat, one anchor with chain and ca-
ble, and one life preserver for each per-
son on board. Held, that the "equip-
ment" required to be inspected is not
limited to the matter specified in section
11, but includes a steam boiler used only
for loading and unloading and weighing
anchor, since the inspectors are required
to certify that the barge may be used in
navigation with safety, and "navigation"
may include a vessel at anchor or at
(If)ck, under some circumstances, as well
as in motion. Commonwealth v. Break-



§§ 3881-3882



CARRIERS.



3506



question for the jury whether a harge, from its design and construction, may
reasonably be expected to encounter and ride out the ordinary perils of the sea,
even though it lacks means of self-propulsion, and whether it, in fact, does go to
sea, and lience whether it is a seagoing barge within Act May 28, 1908, requiring
steamboat inspectors to inspect the hull and equipment of seagoing barges. i'

Headlights on Locomotives. — A state statute which requires a railroad com-
jiany to equip and maintain its locomotives with good and sufficient headlights of
a certain size is not in violation of the commerce clause of the United States
constitution, because it would recjuire at the state line a change of headlights on
locomotives doing an interstate business, if other states should require headlights
different from those prescribed by the statute. ^^ Congress not having passed any
act regulating headlights on engines used in interstate commerce, the Indiana
legislature was authorized to pass Act March 6, 1909, authorizing the Indiana
railroad commission to investigate the subject and require installation of efficient
headlights. ^^

§§ 3882-3887. Regulating Relation of Master and Servant— § 3882.
In General. — The laws of the several states are determinative of the liability of
employers engaged in interstate commerce for injuries received by their employ-
ees while engaged in such commerce so long as congress, although empowered to
regulate that subject, has not acted thereon, because the subject is one which falls
within the police power of the states in the absence of action by congress. ^o



water Co., 214 Mass. 10, 100 N. E. 1034.

Vessels propelled in whole or part by
steam.— Rev. St. U. S. § 4427 (U. S.
Comp. St. 1901, p. 3030), requiring the
hull and boiler of every freight boat to
he inspected under the provisions of that
title, applies only to vessels propelled, in
whole or in part, by steam, in view of §
4399 (U. S. Comp. St. 1901, p. 3015), de-
fining steam vessels to which that title
relates as vessels propelled, in whole or
in part, by steam. Commonwealth v.
Breakwater Co., 214 Mass. 10, 100 N. E.
1034.

The word "barge," as used in Act May
28, 1908, c. 212, § 10, 35 Stat. 428 (U. S.
Comp. St. Supp. 1911, p. 1243), requiring
steamboat inspectors to inspect the hull
and equipment of seagoing barges, is of
somewhat comprehensive signification,
and includes a barge or lighter hav-
ing no means of self-propvilsion, and able
to make progress only by being towed.
Commonwealth v. Breakwater Co., 214
Mass. 10, 100 N. E. 1034.

Seagoing barge. — Under Act May 28,
1908, c. 212, § 10, 35 Stat. 428 (U. S.
Comp. St. Supp. 1911, p. 1243), requiring
steamboat inspectors to inspect the hull
and equipment of seagoing barges, a
barge is "seagoing" if, from its design
and construction, it may be expected
with fair reason to encounter and ride
out the ordinary perils of the sea, and
which, in fact, does go to sea, but, if not
so designed, is not seagoing merely be-
cause, by selecting smooth water and fair
weather, it is able, upon occasion, to go
to sea without mishap, but, if so de-
signed, is seagoing, although it has no
means of self-propulsion, and is adapted
to go only by tow. Commonwealth v.



Breakwater Co., 214 Mass. 10, 100 N.
E. 1034.

17. Commonwealth v. Breakwater Co.,
214 Mass. 10, 100 N. E. 1034.

18. Headlights on locomotives. — The
headlight law (Act Aug. 17, 1908; Laws
2908, p. 50), requires a railroad company
to equip and maintain every locomotive
running on its main line after dark with
a good and sufficient headlight, which
shall consume not less than 300 watts
at the arc, with a reflector not less than
23 inches in diameter, and to keep such
headlight in good condition, and pro-
vides that any railroad company violating
the act shall be liable to indictment and
punishment, and that the act shall not
apply to tram roads, mill roads, and
roads engaged principally in lumber or
logging transportation in connection with
mills. Held, that the act does not violate
the constitution of the United States,
art. 1, § 8, par. 3, giving congress power
to regulate commerce among the states,
etc., because it would require at the state
line a change of headlights on locomo-
tives doing an interstate business, if
other states required head lights differ-
ent from those prescribed by the act,
though such change might involve some
loss of time and expense on the part of
the railroad company. Atlantic, etc., R.
Co. V. State, 135 Ga. 545, 69 S. E. 725,
32 L. R. A., N. S., 20.

19. Vandalia R. Co. v. Railroad Comm.
(Ind.), 101 N. E. 85.

20. Regulating relation of master and
servant — Employers' Liability Acts. —
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.

Applying to interstate transportation



3507



REGULATION AND CONTROL.



§§ 3882-3883



Power of Congress to Supersede State Law.— The inaction of congress,
however, in nowise affects its ijower over the subject, and where congress has
acted, the law of the state, in so far as it covers the same field, is superseded,
since that which is not supreme must yield to that which is. 21

Prescribing Amount of Wages.— Labor laws of a state requiring payment of
wages in cash weekly to employees of practically all corporations except steam
railroads, which are required to pay semimonthly, does not, as to a steam rail-
road, interfere with and constitute a restriction upon interstate commerce so
as to be void. 22 Though labor laws of a state requiring that railroads shall pay
their employees wages semimonthly in cash, relate to the wages of railway
sen^ants employed entirely within the state, and also to the wages of those whose
duties take them from New York into other states, congress not having passed
any legislation dealing with the same subject-matter, such act is not invalid as an
unconstitutional interference with interstate commerce. ^^

§ 3883. Number and Character of Employees.— The law of a state pro-
viding the number and character of employees to be carried on trains operated
within the state, did not relate to a subject over which congress was invested with
exclusive powers to legislate, and hence the failure of congress to pass any law



the provisions of Act Pa. April 4, 1868,
restricting, as against a railway company,
the rights of persons injured in the
course of their employment in or about
the railroad to those which an employee
of the railway company would have un-
der like circumstances, does not make
such statute repugnant to the commerce
clause of the federal constitution. Judg-
ment, 76 N. E. 1129, 72 O. St. 659, af-
firmed in Martin v. Pittsburgh, etc., R.
Co., 203 U. S. 284, 51 L. Ed. 184. 27 S.
Ct. 100, 8 Am. & Eng. Ann. Cas. 87.

Nebraska statute modifying rules as to
comparative and contributory negligence.
—Until congress acted in the matter,
there was no repugnancy to the com-
merce clause of the federal constitution
in the provisions of Neb. Comp. Stat.,
chap. 21, § 4, under which the contrib-
utory negligence of a railway employee
injured while engaged in interstate com-
merce did not bar a recovery from the
company, where his negligence was
slight and that of the company was gross
in comparison, the damages being dimin-
ished in proportion to the amount of neg-
ligence attributable to the injured em-
ployee. Missouri Pac. R. Co. v. Castle,
224 U. S. 541, 56 L. Ed. 875, 32 S. Ct.
•606.

Since, at the time the plaintiff received
the injuries complained of, there was no
subsisting legislation l)y congress affect-
ing the liability of railway companies to
their em])loyees, under the conditions
shown in this case, the state was not de-
barred from thus legislating for the pro-
tection of railway employees engaged in
interstate commerce. Missouri Pac. R.
Co. V. Castle, 224 U. S. 541, 56 L. Ed.
875, 32 S. Ct. 606. See Mondou v. New
York. etc.. R. Co., 223 U. S. 1, 56 L.
Ed. 327, 32 S. Ct. 169, 38 L. R. A., N.

4 Car— 26



S., 44; Chicago, etc., R. Co. v. Solan, 169
U. S. 133, 42 L. Ed. 688. 18 S. Ct. 289.

The validity of Neb. Comp. Stat., chap.
21, §§ 3, 4, in so far as they impose lia-
bility upon a railway company for an in-
jury to an employee engaged in interstate
commerce, arising from the negligence of
a coemployee, and modify the rule of
contributory negligence, is not affected
because such statute also covers subjects
dealt with by the Safety Appliance Act
of March 2, 1893 (27 Stat at L. 531. chap.
196, U. S. Comp. Stat. 1901, p. 3174), such
as acts of negligence of railway compa-
nies in respect of their cars, roadbed,
machinery, etc. Missouri Pac. R. Co. v.
Castle, 224 U. S. 541, 56 L. Ed. 875, 32
S. Ct. 606.

21. Power of congress to supersede
state law. — 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.

22. Prescribing amount of wages. —
New York, etc., R. Co. v. Williams, 118
N. Y. S. 785, 64 Misc. Rep. 15.

Labor Law (Consol. Laws, c. 31) § 10,
requiring payment of wages in cash
weekly to employees of practically all
corporations except steam railroads,
which are required by § 11 to pay semi-
monthly, does not, as to a steam rail-
road, interfere with and constitute a re-
striction upon interstate commerce so as
to be_ void. Judgment, 118 N. Y. S. 785,
64 Misc. Rep. 15, affirmed in New York,
etc., R. Co. V. Williams, 120 N. Y. S.
1137, 136 App. Div. 904.

23. New York, etc., R. Co. v. Williams,
199 N. Y. 108, 92 N. E. 404, affirming
judgment 120 N. Y. S. 1137, 136 App.
Div. 904, which affirms 118 N. Y. S. 785,
64 Misc. Rep. 15.



§§ 3883-3884



CARRIERS.



3508



on the subject did not prohibit the states from passing proper legislation thereon.^^
A state law prescribing a minimum of three brakemen for freight trains of more
than twenty-five cars, operated in the state, does not amount to an unconstitu-
tional regulation of interstate commerce when applied to a foreign railway com-
pany engaged in such commerce. 2-"> A state statute which makes it anofifense for
one to act as a conductor on a railroad train without two years' previous service
as brakeman or conductor, is not unconstitutional as an unreasonable interference
with employment contracts or the right to pursue a vocation. Nor is the act
imconstituti'onal as an unlawful interference with interstate commerce. 2«

Citizenship of Employee. — Whether a state statute for protection of railway
employees is invalid as an interference with interstate commerce does not depend
upon the citizenship of such employees. 2" In determining whether a state statute
for the protection of railway employees is invalid as an interference with inter-
state commerce, it is immaterial whether such employees are citizens of that state
or not ; a state having the same right and power to protect citizens of another state
within its borders as to protect its own citizens. ^^

§ 3884. Safety Appliance Acts. — A state statute requiring carriers to use
automatic couplers on locomotives or cars in moving state trafllic, does not directly
regulate interstate commerce or conflict with regulation thereof enacted by con-
gress, but requires the use of the same kind of couplers required by congress, and
therefore is not void as in contravention of the power of congress to regulate com-
merce among the states.-^ Congress may enact laws requiring all railroads to
equip their cars with safety appliances, but the exercise of that power does not
preclude a state from making similar regulations as to roads engaged in intra-
state commerce.^*' The Federal Automatic Coupler Act, providing that it shall
apply to all trains used in interstate commerce, and to all other locomotives, cars,
etc., used in connection therewith, is not repugnant to T.avrs 1^05. p. 350, making



24. Number and character of employees.

—Pittsburgh, etc., R. Co. r. State, 172
Ind. 147, 87 N. E. 1034.

Acts of congress requiring cars en-
gaged interstate trains to be equipped
with automatic couplers; the Act of June
1, 1898, c. 370. 30 Stat. 424 (U. S. Comp.
St. 1901, p. 320.5). relating to the adjust-
ment of controversies between railroad
companies engaged in interstate com-
merce and their employees; the Act of
March 3, 1901, c. 866, 31 Stat. 1446 (U.
S. Comp. St. 1901, p. 3176), requiring re-
ports of accidents to the interstate com-
merce commission; the Act of March
4. 1907, c. 2939, 34 Stat. 1415 (U. S.
Comp. St. Supp. 1907, p. 913), limiting
the orders of service of employees; and
the Hepburn Act of June 29, 1906, c. 3591,
34 Stat. 584 (U. S. Comp. St. Supp. 1907.
p. 892), relating to reports of employees
and salaries, etc.. do not show an inten-
tion of congress to enter the field of leg-
islation relating to the number of em-
ployees to be carried on trains operated
within the state though engaged in inter-
state commerce, and hence the passage
of those acts did not prevent the passage
of Acts 1907, p. 18, c. 11, regulating such
crews. Pittsburg, etc.. R. Co. v. State,
172 Ind. 147, 87 N. E. 1034.

Acts 1907, p. 18, c. 11. requiring all
trains to have a certain number of opera-
tives in accordance with the character of



the train, applies only to the operation of
trains within the state. Pittsburg, etc., R.
Co. V. State, 172 Ind. 147, 87 N. E. 1034.

Acts 1907, p. 18, c. 11, known as the
■'Full Crew Act," requiring a certain
number of operatives on trains within the
state according to the character of the
train, contains no restrictions as to the
persons or things carried by such trains,
or regulations of fares or freights, and
was not an attempt to regulate interstate
commerce in violation of the constitution
of the United States, art. 1, § 8, confer-
ring such power on congress, but was
a proper exercise of police power.
Pittsburgh, etc., R. Co. v. State, 172 Ind.
147. 87 N. E. 1034.

25. Chicago, etc.. R. Co. v.' Arkansas,
219 U. S. 453. 55 L. Ed. 290, 31 S. Ct. 275,
afhrming judgment Chicago, etc., R. Co.
V. State. 86 Ark. 412. Ill S. W. 456.

26. Smith v. State (Tex. Cr. App.). 146
S. W. 900.

27. Citizenship of employee. — Southern
R. Co. V. Railroad Comm., 179 Ind. 23, 100
N. E. 337.

28. Southern R. Co. v. Railroad Comm..
179 Ind. 23, 100 X. E. 337.

29. Safety appliances. — Detroit, etc., R.
Co. r. State, 82 O. St. 60, 91 N. E. 869.

30. Luken v. Lake Shore, etc., R. Co..
248 111. 377. 94 N. E. 175, 21 Am. &
Eng. Ann. Cas. 82.



3509



REGULATION AND CONTROL.



3884-3886



the same regulations as to cars engaged in intrastate commerce, and providing that
the act shall apply to common carriers engaged in moving traffic by railroad be-
tween points in the state, except those used in interstate commerce.-^ ^ A state
jaw providing that where a railroad employee is injured by a defect in the railroad
company's cars, engines, appliances, machinery, track, roadbed, works, boats,
wharves, or other equipment, contributory negligence shall not be a bar to recov-
ery, but the damages shall be diminished in proportion to the amount of negli-
gence attributable to the employee, was not invalid, even though construed as an
attempt to regulate interstate commerce, but would only be in suspension as to
such commerce while there was a federal statute in force relating to the same
subject, such subject not being one over which the power of congress is exclusive,
in the sense that the states are without power to act with reference thereto while
congress takes no action. ^-

§ 388 5. Employers' Liability Act. — A state Employers' Liability Act which
in part relieves employees engaged in operating railroads from the consequences
of their own negligence in suits for personal injuries, is not invalid, under the
commerce clause of the federal constitution, as an attempt to regulate interstate
commerce.^ ^

§ 3886. Hours of Service. — A law of a state prohibiting any corporation
operating a line of railroad in wdiole or in part in the state from requiring or per-
mitting any telegraph operator, including train dispatcher, to remain on duty for
more than one period of eight consecutive hours, is within the field of legisla-



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