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tion by the states, notwithstanding the interstate commerce clause in the federal



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

Plaintiff, a switchman, was injured
while endeavoring to uncouple a car from
an engine. The locomotive and tender
were used only in switching in the state,
and the immediate work in which they
were emploj-ed when plaintiff was injured
was the moving of three freight cars from
one place to another in defendant's yard,
which was also within the state. Held,
that the Safety Appliance Act approved
May 12, 1905, forbidding any common car-
rier after passage of the act to use on
its line any locomotive, tender, or car
used in moving traffic not equipped with
automatic couplers, was applicable. Pat-
ten V. Faithorn, 152 111. App. 426.

32. Missouri, etc., R. Co. v. Turner (Tex.
Civ. App.), las S. W. 1120.

Regulation in aid of federal statute. —
Burns' Ann. St. 1908, § 5280, requiring rail-
road locomotives, cars, etc., to be pro-
vided with grabirons or handholds in the
sides or ends thereof, and § 5287, impos-
ing penalties for violations thereof, can
not be upheld as in aid of the federal
statute on the subject; Federal Safety Ap-
r)liance Act March 2, 189.3, c. 196, § 4, 27
Stat. 531 [U. S. Comp. St. 1901, p. 3174]),
as amended by Act March 2, 1903 (Act
March 2. 1903, c. 970, § 1, 32 Stat. 943
fU. S. Comp. St. Supp! 1909, p. 1143]),
requiring gral)irons and handholds in the
ends and sides of each car, thus being
broarlcr in its scope than the state law.
Southern R. Co. v. Railroad Comm., 179
Ind. 23, 100 N. E. 337.



Where no additional burdens imposed.

—Burns' Ann. St. 1908, § 5280, requiring
railroad locomotives, cars etc., to be
equipped with grabirons or handholds in
the sides or ends thereof, and § 5287, im-
posing a penalty for a violation, is not
invalid as an attempt to regulate inter-
state commerce, since it merely imposes
an additional penalty for the same omis-
sion, requires no new duty, imposes no
limit on the free use of cars, and contains
no new or different restrictions than those
required and imposed by the federal stat-
ute, and the hazards against which it is
directed are not hazards of such com-
merce, btit of the operation of the car
within the state. Southern R. Co. v.
Railroad Comm., 179 Ind. 23, 100 N. E.
337.

33. Emploj'ers' liability act. — Missouri,
etc., R. Co. V. Sadler (Tex. Civ. App.).
149 S. W. 1188.

The Federal Employer's Liability Act
of April 22, 1908, supersedes state legis-
lation and is exclusive as to the right of
recovery for the death of a railroad em-
ployee, where the company at the time
and place of the accident was engaged in
interstate commerce. ]£astcrn R. Co. ?'.
lUlis (Tex. Civ. App.), 153 S. W. 701.

Employer's Liability Act, 1909, is not
an invalid interference with interstate
commerce, but is inoperative so far as it
affects interstate commerce while the
federal statute remains in force. Hous-
ton, etc., R. Co. V. Bright (Tex. Civ.
App.), 15G S. W. 304.



§§ 3886-3888



CARRIERS.



3510



constitution, until congress exercises its power to regulate the hours of labor of
employees engaged in interstate commerce ; and under the constitution of the
United States declaring that the constitution and laws of the United States made
in pursuance thereof shall be the supreme law of the land, the regulation of con-
gress on the subject is supreme, and is an assertion of the federal power and a
declaration of policy that the subject shall be under federal, and not state, reg-
ulation.^* A state law regulating the hours of service of trainmen, not being re-
stricted to intrastate commerce, and therefore embracing interstate commerce, is
nullified by the Act of Congress, March 4, 1907, covering the same subjects or
classes of legislation, though limited to interstate commerce. ^^

§ 3887. Fellow- Servant Doctrine. — Laws of Nebraska of 1907, which pro-
vides, inter alia, that railroad companies operating trains within the state shall be
liable for injuries to employees resulting from the negligence of other employees, is
comprehensive in its terms, and applies to railroads doing an interstate business,
and governs the liability of such companies to employees operating trains engaged
in interstate commerce in the absence of valid legislation by congress covering
such liability.^*'

§ 3888. Regulating Rights and Privileges of Passengers. — A state stat-
ute recjuiring those engaged in the transportation of passengers among the states
to give all persons traveling within that state, upon vessels employed in such busi-
ness, equal rights and privileges in all parts of the vessel, without distinction on
account of race or color, and subjecting to an action for damages the owner of
such a vessel who excludes colored passengers, on account of their color, from



34. Hours of service. — State v. Chicago,
etc., R. Co., 136 Wis. 407, 117 N. W. 680,
19 L. R. A., N. S., 326.

Hours of Service Law (Act March 4,
1907, c. 2939, § 2, 34 Stat. 1416 [U. S.
Comp. St. Supp. 1909, p. 1170]), is not
unconstitutional, because not limited in
terms to employees engaged in interstate
commerce. St. Louis, etc., R. Co. v. Mc-
Whirter, 145 Ky. 427, 140 S. W. 672.

Act 30th Leg. c. 122, which prescribes
the hours of labor of railroad telegraph
operators, and by its terms is applicable
to all of such employees whether engaged
in interstate or intrastate commerce, is
void as being in conflict with Act Cong.
March 4, 1907, c. 2939, § 2, 34 Stat. 1416
(U. S. Comp. St. Supp. 1909, p. 1170),
upon the same subject though the act of
the Legislature only lessens the hours of
labor prescribed by the act of Congress.
State v. Texas, etc., R. Co. (Tex. Civ.
App.), 124 S. W. 984.

The right of the state in the exercise
of its police power to protect its citizens
from perils resulting from excessive hours
of labor by railroad employees is in no
way impaired by the federal constitution,
except as such legislation shall restrain
interstate commerce in a respect in
which congress has deemed wise to reg-
ulate it. State V. Chicago, etc., R. Co.,
136 Wis. 407, 117 N. W. 686, 19 L. R. A..
N. S., 326.

Laws 1907, p. 1188, c. 575, prohibiting
any corporation operating a line of rail-
road in whole or in part in the state from
permitting any telegraph operator, includ-
ing train dispatcher, to remain on duty



for more than one period of eight consecu-
tive hours, etc., is in conflict with and in
negation of Act Cong. March 4, 1907, c.
2939, 34 Stat. 1415 (U. S. Comp. St. Supp.
1907, p. 913), regulating the hours of labor
of employees engaged in interstate com-
merce, and providing that no operator or
train dispatcher shall be permitted to re-
main on duty for a longer period than
nine hours in any twenty-four hours, in
places continuously operated night and
day, nor for a period longer than thirteen
hours in places operated only during the
daytime, with exceptions in case of
emergencies, etc., and the state statute
can not be enforced as to such employees;
the act of congress being a declaration by
it of a will and policy that, so far as the
regulation and safe-guarding of interstate
commerce may be affected by prescribing
hours of labor for such employees, the
subject shall be under control of congress,
and not of the states. State v. Chicago,
etc., R. Co., 136 Wis. 407, 117 N. W. 686,
19 L. R. A., N. S., 326.

It is within the power of the state, in
absence of congressional legislation on
the subject, to enact laws operative within
its boundaries limiting the number of
hours railway employees can be required
to remain on continuous duty, even if the
railway be a common carrier engaged in
interstate commerce. Atkinson v. North-
ern Pac. R. Co., 53 Wash. 673, 102 Pac.
876, 17 Am. & Eng. Ann. Cas. 1013.

35. State z: Wabash R. Co., 238 Mo. 21,
141 S. W. 646.

36. Fellow-servant doctrine. — A/fissouri
Pac. R. Co. v. Castle, 172 Fed. 841.



3511



REGULATION AND CONTROL.



3888



the cabin set apart by him lor the use of whites during the passage, is a regula-
tion of foreign and interstate commerce, affecting a matter national in its char-
acter, recjuiring uniformity of regulation, and is, therefore, unconstitutional and
void, though not in conflict with any regulation prescribed by congress.^''

Equal, but Separate Accommodations for White and Colored Passen-
gers. — A state statute requiring railroads carrying passengers within the state to
provide equal, but separate, accommodations for the white and colored races, by
providing two or more passenger cars for each passenger train, or by dividing
the cars by a partition, so as to secure separate accommodations, applicable solely
to commerce within the state, does not interfere with commerce between the states,
and therefore does not violate the commerce clause of the federal constitution.^'^



37. Interstate transportation. — Hall v.
DeCuir, 95 U. S. 485, 24 L. Ed. 547. And
see Chesapeake, etc., R. Co. v. Kentucky,
179 U. S. 388, 45 L. Ed. 244, 21 S. Ct.
101; Louisville, etc., R. Co. v. Missis-
sippi, 133 U. S. 587, 33 L. Ed. 784, 10 S.
Ct. 348; Lake Shore, etc., R. Co. v. Ohio,
173 U. S. 285, 43 L. Ed. 702, 19 S. Ct. 465.

38. Equal, but separate accommoda-
tions for white and colored passengers.
— Statutes of Mississippi, Louisiana and
Kentucky providing for separate accom-
modations for the two races, having been
construed by the highest state courts to
apply solely to commerce within the
state, the supreme court of the United
States, accepting such construction, held
that the statutes in no way interfered
with interstate commerce, and were not,
therefore, unconstitutional as regulations
thereof. Louisville, etc., R. Co. v. Mis-
sissippi, 133 U. S. 587, 33 L. Ed. 784, 10 S.
Ct. 348; Plessy v. Ferguson, 163 U. S.
537, 41 L. Ed. 256, 16 S. Ct. 1138; Ches-
apeake, etc., R. Co. V. Kentucky, 179 U.
S. 388, 45 L. Ed. 244, 21 S. Ct. 101. See
also, Wabash, etc., R. Co. v. Illinois, 118
U. S. 557, 30 L. Ed. 244, 7 S. Ct. 4; Rail-
road Comm. Cases, 116 U. S. 307, 29 L.
Ed. 636, 6 S. Ct. 334, 1191; Hall v. De-
Cuir, 95 U. S. 485, 24 L. Ed. 547.

The provisions of the statute are fully
complied with, when to trains within the
state is attached a separate car for col-
ored passengers. This may cause an ex-
tra expense to the railroad company; but
not more so than state statutes requiring
certain accommodations at depots, com-
pelling trains to stop at crossings of other
railroads, and a multitude of other mat-
ters confessedly within the power of the
state. No question arises under the stat-
ute, as to the power of the state to sep-
arate in different compartments inter-
state passengers, or to affect, in any man-
ner, the privileges and rights of such pas-
sengers. Louisville, etc., R. Co. v. Mis-
sissippi, 133 U. S. 587, 33 L. Ed. 784, 10
S. Ct. 348. See, also, Chesapeake, etc.,
R. Co. V. Kentucky, 179 U. S. 388, 45
L. Ed. 244, 21 S. Ct. 101.

A statute requiring railroad companies
to furnish separate coaches for white and
colored passengers does not violate the
commerce clause of the federal constitu-



tion. Chesapeake, etc., R. Co. v. Com-
monwealth, 51 S. W. 160, 21 Ky. L. Rep.
228, affirmed in Chesapeake, etc., R. Co.
V. Kentucky, 21 S. Ct. 101, 179 U. S. 388,
45 L. Ed. 244.

A statute requiring passengers of the
different races to occupy separate coaches
is not rendered invalid as a violation of
the interstate commerce clause of the
constitution by reason of the fact that a
railroad in the state has a terminus with-
out the state, as such statute can only
apply to transportation within the state.
Ohio Valley R. Co. v. Lander, 104 Ky.
431, 47 S. W. 344, 882, 20 Ky. L. Rep.
913, rehearing denied in 48 S. W. 145.

Though Acts 1904, p. 186, c. 109, re-
quiring carriers to provide separate
coaches for the transportation of white
and colored passengers, and making it an
offense for a passenger to refuse to oc-
cupy the car to which he is assigned by
the conductor, is valid in so far as it af-
fects commerce wholly within the state,
it is invalid as to interstate passengers
under the commerce clause of the fed-
eral constitution. Hart v. State, 60 Atl.
457,. 100 Md. 595.

Acts 1891, c. 52, providing under pen-
alty that railroads shall provide equal,
but separate, accommodations for the
white and colored races, and attend to
the separation of the passengers of the
two races, though applying both to intra
and interstate travel, is not objectiona-
ble as a "regulation" of interstate com-
merce. Smith V. State, 46 S. W. 566, 100
Tenn. (16 Pickle) 494, 41 L. R. A. 432.

Laws 1891, p. 44, c. 41, requiring every
railroad to provide separate coaches for
white and negro passengers, is not in
conflict with the federal constitution, as
the act applies only to railroads doing
business in the state. Southern Kansas
R. Co. V. State, 44 Tex. Civ. App. 218, 99
S. W. 166.

An order of the board of railroad com-
missioners re(|uiring a railroad company
to operate separate passenger service
witliin the state is in the exercise of its
police power and is not an attempt to
regulate interstate commerce, nor does it
directly cast a burden on such commerce,
Taylor v. Missouri Pac. R. Co., 76 Kan.
467, 92 Pac. 606.



§§ 3889-3891 carriers. 3512

§ 3889. Regulating Speed of Running Trains. — A reasonable exercise by
a city of the poHce power vested in it by the legislature, in regard to the speed of
trains within its limits, is not invalid as an interference with interstate commerce,
though it may incidentally limit the speed of such traffic.-^'*

Mail Train.— An ordinance limiting the speed of trains, on an interstate rail-
way which carries United States mail to ten miles an hour within the corporate
limits of the municipality, which is passed for the safety of the public and the
protection of life and property, is not void as imposing an unreasonable restric-
tion upon interstate commerce and the transportation of mail.-*^'

Carriers of Live Stock. — A state law requiring carriers to transport live stock
within the state at a speed not less than fifteen miles per hour unless unavoidably
prevented, does not apply to inerstate commerce, and a shipment of live stock
between points in the state which passes for a short distance over territory of
another state is interstate commerce, and noncompliance with the act in such a
shipment affords no ground for recovery against the carrier.-* ^

§ 3890. Running Trains on Sunday. — A state statute prohibiting the run-
ning of freight trains in the state on Sunday, applying alike to all trains, whether
domestic or interstate, though in a limited degree, affecting interstate commerce
when applied to freight trains running into and out of, or passing through the
state from and to adjacent states, and laden exclusively with freight receivedon
board before the trains entered the state, and consigned to points beyond its lim-
its, is not for that reason an unreasonable interference with, nor strictly a reg-
ulation of interstate commerce, but is an ordinary police regulation designed
to secure the well-being and to promote the general welfare of the people within
the state, and therefore, not invalid by force alone of the constitution of the
United States, in the absence of any congressional legislation on the subject.'*-
The Act of Missouri, March 19, 1907, requiring the running of at least one reg-
ular passenger train each way every day over all railroad lines, is not invalid as
a regulation of interstate commerce.'*^

§ 3891. Heating of Passenger Cars.— The states having authority to estab-
lish reasonable regulations appropriate for the protection of the health, lives and
safety of their people, may enact laws, the purpose of which is to protect all
persons traveling in the state on passenger cars moved by the agency of steam

39. Speed of running trains. — Chicago, the people within the state by which it
etc., R. Co. V. Carlinville, 200 111. 314, 65 was established, and, therefore, not in-
N. E. 730, 93 Am. St. Rep. 190, 60 L. R. valid by force alone of the constitution
A. 391. of the United States, in the absence of

40. Mail train.— Peterson v. State, 79 any congressional legislation upon the
Neb 132, 112 N. W. 306, 14 L. R. A., N. subject. Hennington v. Georgia, 163 U.
S., 292. S- 299, 41 L. Ed. 166, 16 S. Ct. 1086.

41. Carriers of live stock. — Leibengood See, also, Lake Shore, etc., R. Co. v. Ohio,
V. Missouri, etc., R. Co., 83 Kan. 25, 109 173 U. S. 285, 43 L. Ed. 702, 19 S. Ct. 465;
Pac 988 28 L. R. A., N. S., 985. Cleveland, etc., R. Co. v. Illinois, 177 U.

42. Running of trains on Sunday.-The S. 514, 44 L Ed. 868, 20 S. Ct. 732.
statute of Georgia, Code 1882, §§ 4578, Code, § 19.3 making it a misdemeanor
4310, making it unlawful to run any to run railroad trains (with certain ex-
freight train on any railroad in the state ceptions) between certain hours on Sun-
on Sunday, and providing that the su- day, is not unconstitutional as apphed to
perintendent of transportation of any rail- trains carrying freight between points in

road shall be liable for indictment for d^ff^':^ ^V'^^.^.'f ' o^^ c^^ -^- ^.^o '« "^ Q^

a misdemeanor for any violation of the 119 N C. 814, 2o S. E. 862, d6 Am. St.

statute by his railroad, is not so far as 1^^- 6^?,. , • , ,• -.v,

it affects interstate trains, a needless in- Pen. Code 1895, § 420, forbidding %yi h

trusion upon the domain of federal ju- certain exceptions, the running of freight

risdiction, nor strictly a regulation of in- trains on Sunday, is not unconstitutional

terstate commerce, but, considered in its as a violation of interstate _ commerce,

own nature, is an ordinary police regu- Scale v. State, 126 Ga. 644, oo S. E. 4.2.

lation designed to secure the well-being 43. State v. Chicago, etc., R. Co., 239

and to promote the general welfare of Mo. 196, 143 S. W. 785.



3513



REGULATION AND CONTROL.



3891-3892



against the perils attending a particular mode of heating such cars. Accord-
ingly, a state statute forbidding under penalties the heating of passenger cars in
the state by stoves or furnaces kept inside the cars or suspended therefrom, is
a valid police regulation, and is not repugnant to the commerce clause of the
constitution, when applied to the cars of interstate trains, in the absence of con-
gressional legislation on the subject. Such statute is not a regulation of com-
merce within the meaning of the constitution, although it controls in some degree,
the conduct of those engaged in such commerce. So far as it may affect interstate
commerce, it is to be regarded as legislation in aid of commerce.'*"*

§ 3892. Requiring Trains to Stop at Certain Stations.— A state statute
providing that each railroad company operating lines within the state shall cause
three, each way, of its regular trains carrying passengers, if so many are run
daily, to stop at a station, city or village, containing over three thousand inhab-
itants, for a time sufficient and let off passengers, is not, as applied to interstate
trains of a railroad company organized under the laws of the state, repugnant
to the commerce clause of the federal constitution, in the absence of congres-
sional legislation upon the subject. Such statute is not directed against inter-
slate commerce, but is a reasonable provision for the public convenience enacted
under the police power of the state, and only remotely and incidentally affects
commerce between the states."*-^ So also a state statute, expressly declaring that



44. Heating of passenger cars. — New

York, etc., R. Co. v. New York, 165 U.
S. 628, 41 L. Ed. 853, 17 S. Ct. 418. See,
also, Lake Shore, etc., R. Co. v. Ohio,
173 U. S. 285, 43 L. Ed. 702, 19 S. Ct. 465;
Chicago, 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; Missouri, etc., R. Co. v. Haber, 169
U. S. 613, 42 L. Ed. 878, 18 S. Ct. 488.

45. Requiring certain number of trains
to stop at stations. — The statute of Ohio
(§ 3320, Rev. Stat.), as amended by the
act of April 13, 1889, sustained as a valid
police regulation. Lake Shore, etc., R.
Co. V. Ohio, 173 U. S. 285, 43 L. Ed.
702, 19 S. Ct. 465, cited in Lake Shore,
etc., R. Co. V. Smith, 173 U. S. 684, 43 L.
Ed. 858. 19 S. Ct. 565, distinguishing Hall
V. DeCuir, 95 U. S. 485, 24 L. Ed. 547;
Wabash, etc., R. Co. v. Illinois, 118 U.
S. 557, 30 L. Ed. 244, 7 S. Ct. 4, in
each of which cases certain state enact-
ments were adjudged to be inconsistent
with the grant of power to congress to
regulate commerce among the states; dis-
tinguished from the case of Cleveland,
etc., R. Co. V. Illinois, 177 U. S. 514, 44
L. Ed. 868, 20 S. Ct. 722. in the fact that
the statute of Illinois required all regular
passenger trains to stop at county seats.
See, also. Mississippi R. Comm. v. Illi-
nois Cent. R. Co., 203 U. S. 335, 51 L.
Ed. 209, 27 S. Ct. 90.

The case of Illinois Cent. R. Co. v. Illi-
nois, 163 U. S. 142, 41 L. Ed. 107, 16 S.
Ct. 1096, is not inconsistent with the con-
clusion stated in the text, for the particu-
lar question was not involved in that



case, the court stating in its opinion that
"the question whether a statute which
merely required interstate railroad trains,
without going out of their course, to stop
at county seats, would be within the con-
stitutional power of the state, is not pre-
sented, and cannot be decided, upon this
record." The above extract shows the
full scope of that decision. Any doubt
upon the point is removed by the ref-
erence made to that case in Gladson v.
Minnesota, 166 U. S. 427, 41 L. Ed. 1064,
17 S. Ct. 627; Lake Shore, etc., R. Co.
V. Ohio, 173 U. S. 285, 43 L. Ed. 702, 19
S. Ct. 465.

The statute of Ohio is not inconsistent
with § 5258 of the Revised Statutes of
the United States authorizing every rail-
road company in the United States op-
erated by steam, its successors and as-
signs, "to carry upon and over its road,
boats, bridges and ferries- all passengers,
troops, government supplies, inails,
freight and property on their way from
any state to another state, and to re-
ceive compensation therefor, and to con-
nect with roads of other states so as to
form continuous lines for the transporta-
tion of the same to the place of desti-
nation." The above statutory provision
was not intended to interfere with the
authority of a state to enact such regula-
tions, with respect at least to a railroad
corporation of its own creation, as were
not directed against interstate commerce,
l)ut which only incidentally or remotely
affected such commerce, and were not
in themselves regulations of interstate
commerce, but were designed reasona-
l)ly to suliserve the convenience of the
public. Lake Shore, etc.. R. Co. v. Ohio,
173 U. S. 285, 43 L. I'.d. 702, 19 S. Ct.



§ 3892



CARRIERS.



3514



it shall not apply to through trains entering the state from any other state, or to
transcontinental trains, requiring railroad companies to stop all their regular
passenger trains running wholly within the state, at stations in all county seats
]ong enough to take on and discharge passengers with safety, is a reasonable
exercise oi the pohce power of the state, even as appHed to a train connecting
with a train of the same company running into another state, and carrying inter-
state passengers, as well as the niail.-**^ But a state statute requiring all regular



465, citing Missouri, etc., R. Co. v. Ha-
ber, 169 U. S. 613, 42 L. Ed. 878, 18 S.
Ct. 4SS.

Requiring interstate trains to stop at
certain stations. — When an order made
under state authority to stop an inter-
state train is assailed because of its re-
pugnancy to the interstate commerce
clause, the question whether such order
is void as a direct regulation of such com-
merce may be tested by considering the
nature of the order, the character of the
interstate commerce train to which it ap-
plies, and its necessary and direct effect
upon the operation of such train. But
the effect of the order as a direct regu-
lation of interstate commerce may also
be tested by considering the adequacy of
the local facilities existing at the station
or stations at which the interstate com-
merce train has been commanded to stop.
Atlantic, etc., R. Co. v. Wharton, 207



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