William Wheeler Thornton.

A treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars online

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of different States; while in the latter suit mint be brought in the
<fistrict of which the defendant is an inhabitant.

The position taken by Judge Maxey in the case just cited
is fortified by the opinion of the Supreme Court of the United
States in the case of Macon Grocery Co. v. Atlantic Coast
Line Railroad et al., decided within a few weeks.

It seems clear from these decisions that a suit in a Federal
court under this law, where jurisdiction is founded on the
fact that the case involves a Federal statute, must be brought
in the district of which the defendant is an inhabitant.

No argument is necessary to convince that this is a grave
injustice to the plaintiff.

Such an embarrassing situation ought not to be permitted
to exist where any plaintiff is proceeding in a Federal court
on a right based on the law of the United States.

But to permit it to be a practical barrier to the maintenance
of an action for death or personal injuries of employees who
may be presumed to be unable to meet the expense of pre-
senting their case in a jurisdiction far from their homes
would be an injustice too grave and serious to be longer per-
mitted to exist.



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582



FEDERAL EMPLOTEBS'



CONCURRENT JURISDICTION OP 8TATB C0UBT8.



It is proposed to further amend the act by making the
jurisdiction of the courts of the United States "concurrent
with the courts of the several States."

This is proposed in order that there shall be no excuse for
courts of the States to follow in the error of the Supreme
Court of errors of Connecticut in the case of Hozie v. N. Y.
N. H. & H. R. R. Co. (73 Atlantic Rep., 754), in which case
the court declined jurisdiction upon the ground, inter €Uia,
that Congress did not intend that jurisdiction of cases arising
under the act should be assumed by state courts.

It is clear under the decisions of the Supreme Court of the
United States that this conclusion of the Connecticut court
is erroneous. And the reasons recited by the Connecticut
court lead to an opposite conclusion from that which the
opinion declares upon the subject. But no harm can come,
and much injustice and wrong to suitors may be prevented
by an express declaration that there is no intent on the part
of Congress to confine remedial actions brought under the
Employers' Liability Act to the courts of the United States.

In declaring that the jurisdiction of the United States
courts shall be "concurrent with the courts of the several
States," Congress is clearly within its rights and lowers.

The first precedent for such declaration is found in the

action of the First Congress. In the act of September 24,

1789, it was enacted that the district courts of the United

States —

shall also have cognizance, ooncurrcnt with the courts of the several
States, or the circuit courts, as the case may be, of all causes where
an alien sues for a tort only in violation of the law of nations or a
treaty of the United States, (c) And shall also have cognizance, con-
current as last mentioned, of all suits at common law where the UnHei
States sue, <and the matter in dispute amounts, exclusive of costs, to the
sum or value of one hundred dollars (U. S. Stat. L., Vol. I, p. 77).

This precedent has repeatedly been followed in Federal
legislation. Thus early was it established by those who under-
stood the full scope and operation of the Constitution of the
United States, that the "supreme law of the land" did not



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APPENDIX B. 583

lose any of its imperative obligation at the door of a state
court.

The express declaration of the United States Constitution
says of laws enacted by Congress in pursuance of its dele-
gated powers, "and the judges in every State shall be bound
thereby, anything in the constitution or laws of any State
to the contrary notwithstanding."

This declaration of the Constitution is not meaningless.
That the "jndges in every State shall be bound" by a Fed-
eral law imposes a binding duty to enforce it.

This provision leaves no discretion to a judge of a state
court to deny justice to a suitor because his right is based on
a Federal law.

The Connecticut court says that this Federal statute known
as the Employers' Liability Act, "would also compel courts
established by a sovereign power, and maintained at its ex-
pense for the enforcement of what is deemed justice, to en-
force what it deemed injustice." We may disregard for the
moment the suggestion of the injustice of a particular statute.
The local opinion of the justice of a particular law is no ob-
stacle to its enforcement if it be a binding law. We will
therefore consider the proposition solely as if the factor of
local opinion as to its justice was eliminated from controversy.
A court may err in its estimate of what its state really did
"consider injustice."

Does the fact that state courts are "established by a sov-
ereign power and maintained at its expense" permit denial
of enforcement in such courts of a right founded on a Federal
statute?

This question is squarely answered in a case which,
strangely enough, is cited by the court in the Hoxie case.
{Claflin V. Houseman, 93 U. S., 130.) In this case Mr. Justice
Bradley says:

The fact that a state oourt deriyes its existence and functions from
the state laws is no reason why it should not aiford relief, because it
is subject also to the laws of this United States, and is just ae much
bound to recognize these aa operative within the State as it is to
recognize Ute state laws.



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584 FEDERAL EMPLOYERS' UABIUTT ACT.

Chancellor Kent, in his Commentaries (1 Com., 400), says:

In judicial matters the concurrent jurisdiction of the state tribunals
depends altogether upon the pleasure of Congress, and may be revoked
and extinguished whenever they think proper, in every case in which
the subject-matter can constitutionally be made cognizable in the federal
courts; and that, without an express provision to the contrary, the
state courts will retain a concurrent jurisdiction in all cases where they
had jurisdiction originally over the subject-matter.

To quote from Cooley's Principles of Constitutional Law,

pages 32-33 :

A state law must yield to the supreme law, whether expressed in the
Constitution of the United States or in any of tts laws or treaties, so
far as they come in collision, and whether it be a law in existence
when the ''supreme law" was adopted or enacted afterwards. The same
is true of any provision in the constitution of any State which is
found to be repugnant to the Constitution of the Union. And not only
must ''the judges in every State" be bound by such supreme law, but so
must the State itself, and every official in all its depcurtments, and every
citizen.



And in the notes, pages 33-35, we read:



The United States is a government with authority extending over the
whole territory of the Union, acting upon the States and the people
of the States. While it is limited in the number of ite powers> so far
as its sovereignty extends it is supreme. No state government can
exclude it from the exercise of any authority conferred upon it by the
Constitution, obstruct its authorized officers a^inst its will, or withhold
from it for a moment the cognizance of any subject which that instru-
ment has committed to it (Tennessee t7. Davis, 100 U. S., 257, per
Strong, J.; see also In re Debs, petitioner, 158 U. S., 664; Logan v.
United States, 144 U. S., 263; • ♦ * Dodge v. Wolsey, 18 How.,
351; Jefferson Branch Bank v, Skelly, 1 Black., 436; Cummings v.
Missouri, 4 Wall., 277; Railroad Oo. v. McOlure, 10 Wall., 611; White
V. Hart, 13 Wall., 646; Gunn v. Barry, 16 Wall., 610; Pacific Railroad
Co. V. Aiaguire, 20 Wall., 36; St Louis, Ac, Ry. Co. v. Vickers, 122
U. S., 360.) A state can not control the conduct of an agency of the
Federal Cavemment within its limits, if the result would be a conflict
with national law or an impairment of the efficiency of the agency.
(Davis V. Elmira Savings Bank, 161 U. S., 275; AlcClellan v, Chipman,
164 U. S., 347. Compare Reagaa v. Mercantile Trust Co., 164 U. B.,
413.)

WTienever the terms in which a power is granted to Congress, or tho
nature of the power, require that it should be exercised exclusively by
Congress, the subject is as completely taken from the state legislature
as if they had been expressly forbidden to act. (Marahall, C. J., in
Sturges V. Crowninshidd, 4 Wheat, 122.)

In Robb V. Conrwlly (111 U. S., 637), Justice Harlan said:

Upon the state courts, equally with the courts of the Union, rests
the obligation to guard, enforce, and protect every right granted or
secured by the Constitution of the United States and the laws made in



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APPENDIX B. 585

pursuance thereof. Wherever those rights are inyolved in any suit or
proceeding before them; for the judges of the state courts are required
to take an oath to support that Constitution, and they are bound by it*
and the laws of the United States made in pursuance thereof, and all
treaties made under their authority, as the supreme law of the land,
'^anything in the constitution or laws of any State to the contrary
notwithstanding." If they fail therein, and withhold or deny rights or
inununities secured by the Constitution and laws of the United States,
the party aggrieved may bring the case from the highest court of the
State in which the question could be decided to this court for final and
conclusive determination.

In re Matthews (122 Fed. Rep., 248, p. 251) :

The second clause of article 6 of the Federal Constitution is in these
words:

'This Constitution and the laws of the United States^ which shall
be made in pursuance thereof, and all treaties made or which shall
be made under the authority of the United States, shall be the supreme
law of the land; and the judges in every State shall be bound thereby,
anything in the constitution or laws of any State to the contrary
notwithstanding."

A recent writer in the American Law Review has had this

to say concerning this clause, to-wit :

'This provision presupposes that the judges in every State will have
some knowledge of the Constitution, the laws, and the treaties of the
Federal Government by which they are thus to be bound; and this
community of interest and obligation obviously makes the judicial
officers of the several States, in a certain high sense, members of the
federal judiciary."

In the case of Robb v. Connolly (111 U. S., 637; 4 Sup.
Ct, 551; 28 L. Ed., 542), Mr. Justice Harlan said:

"A state court of original jurisdiction, having the parties before it,
may, consistently with existing federal legislation, determine cases at
law or in equity arising under the Constitution and laws of the
United States, or involving rights dependent upon such Constitution or
laws."

And again:

'TTpon the state courts, equally with the courts of the Union, rests
the obligation to guard, enforce, and protect every right granted or
secured by the Constitution of the United States, and the laws made
in pursuance thereof, whenever these rights are involved in any suit or
proceeding before them."

In the case of Ex parte Royall, supra, Mr. Justice Harlan

said:

In Taylor v. Carryl (20 How., 596; 16 L. Ed., 1028) it was said
to be a recognized portion of the duty of this court (and, we wrll add,
of all other courts, national and state) ''to give preference to sucu
principles and methods or procedure as shall seem to conciliate the



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586 FEDERAL EMPLOYERS* LIABILITY ACT.

distinct and independent tribunals of the States and of the Union, so
that they may co-operate as harmonious members of a judicial system,
coextensive with the United States, and submitting to the paramount
authority of the same Constitution, laws, and federal oUigations."
And in Covell v. Heyman (111 U. S., 182; 4 Sup. Ct, 368; 28 L. Ed.,
390) it was declared '*that the forbearance which courts of co-ordinate
jurisdiction, administered under a single system, exercise toward each
other, whereby conflicts are avoided by avoiding interference with the
process of the other, is a principle of comity, with perhaps no higher
sanction than the ability of which oomee from concord; but betweea
state courts and those of the United States it is something more. It
is a principle of right and of law, and therefore of necessity."

Pomeroy, ** Introduction to the Constitutional Law of the
United States," third edition, 503, Section 743:

Strip the National Government of an authority to apply a sanction
commensurate with its power to legislate, and just so far we subtract
from that legislation the necessary element of a command. Strip the
Government of the ability to make that sanction supreme, and we
equally invalidate the authority of the legislative utterance. This
attribute of supremacy would be destroyed by permitting the state
courts, for example, to decide upon the effect of national laws> and
by making their decisicms in the particular State where made of an
equal authority with those pronounced upon the same subject by the
national judges. This difficulty thus to be apprehended fnnn the action
of state tribunals could only be prevented in one of two ways— either
by removing from them the power to decide at all upon rights and
duties which spring from the national legislation and conferring the
fimction exclusively upon the United States courts, or by permitting
the state judiciary to exercise a jurisdiction in such cases, but making
that jurisdiction subordinate to the authority of the national courts
and rendering the local decisions reviewable by the United States
judges, who could in this maimer enforce their attribute of supremacy
in relation to the matters under consideration.

In theory the former of these plans would have been the more simple
and perfect But it was perhaps best, from some motives of expediency,
that the Constitution should not expressly determine between these two
methods, but should clothe Congress with the power of making such a
choice of the alternatives as should be found to promote the convenience
of the people. Congress possesses such an authority; it might make all
this jurisdiction exclusive in the national courts, but has done so only
in particular cases; it might suffer the state tribunals to exercise a
complete concurrent power, subject to an equally complete liability to
review, but has done so only to a limited extent. Whether Congress
shall adopt one or the other alternative is a mere question of policy; it
may do either. ♦ ♦ ♦

The Supreme Court of the United States, in Teal v. Fulton
(53 U. S., 292), referring to this subject, said:

We will add that the legislation of Congress immediately after the
Constitution was carried into operation confirms the conclusion of the
learned judge. We find in the twenty-fifth section of the judiciary act



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APPENDIX B. 587

of 1769, under which this case is before us, that sueh a ooncurrent
jurisdiction in the oourts of the States and the United States was
contemplated, for its first provision is for a review of eases adjudicated
in the forum, "where is drawn in question the validity of a treaty or a
statute of, or an authority exercised by, the United States, and the
decision is against their validity."

The Supreme Court of the United States decided in this
case of Teal v. Pulton, that a state court had jurisdiction to
try an action brought against a postmaster who refused to
deliver a newspaper on which there was **an initial" unless
the addressee would pay letter postage, the action being
founded on the thirteenth and thirtieth sections of the act of
Congress passed in 1825 forbidding a writing or memorandum
on a newspaper or other printed matter, pamphlet, or maga-
zine transmitted by maiL The court said, Mr. Justice Wayne
delivering the opinion :

But it is said that the oourts of New York had not juris^ction io
try the case. The objection may be better answered by reference to the
laws of the United States in respect to the services to be rendered in
the transmission of letters and newspapers by mail and by the Con-
stitution of the United States than it can by any general reasoning
upon the ooncurrent civil jurisdiction of the oourts of the United States
and the courts of the States, or concerning the exclusive jurisdictitMi
given by the Constitution to the former.

The United States undertakes, at fixed rates of postage^ to convey
letters and newspapers for those to whom they are directed and the
postage may be prepaid by the sender or be paid when eitner reach
their destination by the person to whom they are addressed. When
tendered by the latter or by his agent he has the right to the immediate
possession of them, though he has not had before the actual possession.
If they be wrongfully withheld for the charge of unlawful postage,
it is a conversion for which suit may be brought. His right to sue
existing, he may sue in any court having civil jurisdiction of such a
case, unless for some cause the suit brought is an exception to the
general jurisdiction of the court.

Now, the oourts of New York having jurisdiction in trover, the case
in hand can only be excepted from it by such a case as this havine
been made one of exclusive jurisdiction in the courts of the United
States by the Constitution of the United States. That such is not the
case, we can not express our view better than Mr. Justice Wright haa
done in his opinion in this case in the court of appeals. After citing
the second section of the third article of the Constitution, he adds,
'This is a mere grant of jurisdiction to the federal courts, and limits
the exteixt of their power, but without words of exclusion or any
attempt to oust the state oourts of concurrent jurisdiction in any of
the specified cases in which ooncurrent jurisdiction existed prior to the
adopdon of the Constitution. The apparent object was not to curtail
the powers of the state courts, but to define the limits of those granted
to -Uie federal judiciary."



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588 FEDERAL EMPLOYEES' LIABILITY ACT.

We will add that the legislation of Cbngress, immedifttely after the
Constitution was carried into operation, oonlirms the conclusion of the
learned judge. We find in the tw^ity-fifth section of the judiciary act
of 17^9, under which this case is before us, that such a concurrent
jurisdiction in the courts of the States and of the United iStates was
contemplated, for its first provision is for a review of cases adjudicated
in the former, "Where is drawn in question the validity of a treaty
or statute of, or an authority exercised under the United States, and
the decision is against their validity/' We are satisfied that there was
no error in the decision of the court of appeals in inis case, and the
same is affirmed by this court.

In the case of The Moses Taylor (1866, 4 Wall., U. S., 428)
the court said:

♦ ♦ ♦ The judiciary act of 1789, in its distribution of jurisdic-
tion to the several feaeral courts, recognizes and is framed upon the
theory that in all cases to which the judicial power of the United
States extends Congress may rightfully vest exclusive jurisdiction iu
the federal courts. It declares that in some cases, from their com-
mencement, such jurisdiction shall be exclusive; in other cases it deter-
mines at what stage of procedure such jurisdiiction shall attach, and
how long and how far concurrent jurisdiction of the state courts shall
be permitted. Thiis, cases in which the United States are partie«»,
civil causes of admiralty and maritime jurisdiction, and cases against
consuls and vice-consuls, except for certain ofi'enses, are placed, from
their commencement, exclusively under the cognizance of the federal
courts.

On the other hand, some cases, in which an alien or a citizen of
another State is made a party, may be brought either in a federad or a
state court, at the option of the plaintiff; and if brought in the state
court may be prosecuted imtil the appearance of the def^idant, and
then, at his option* may be suffered to remain there, or may be trans-
ferred to the jurisdiction of the federal courts. Other oases^ not
included imder these heads, but involving questions under the Con-
stitution, laws, treaties, or authority of the United States, are only
drawn within the control of the federal courts upon appeal or writ of
error, after final judgment. By subsequent legislation of Congress, and
particularly by the legislation of the last four years, many of the oases,
which by the judiciary act could only come under the cognizance of the
federal courts after final judgment in the state courts, may be with-
drawn from the concurrent jurisdiction of the latter courts at earlier
stages, upon the application of the defendant. The constitutionality
of these provisions can not be seriously questioned, and is of frequent
recognition by both state and federal courts.

It is difl&cult to understand why the Connecticut court cites
the case of Claflin v. Houseman (93 U. S., 130) as authority
for the remarkable position taken, for a careful consideration
of the opinion of Mr. Justice Bradley in that case shows
conclusively that the opinion affords no basis for the con-
tention made by the court that the state court is not author-



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APPENDIX B. 589

ized and required to enforce Federal statutes. In his opinion,
Mr. Justice Bradley said:

The general question, whether state courts can exercise concurrent
jurisdiction with the federal courts in cases arising under the Con-
stitution, laws, and treaties of the United States has been elaborately
discussed, both on the bench and in published treatises; sometimes with
a leaning in one direction and sometimes in the other; but the result
of these discussions has, in our judgment, been, as seen in the above
oases, to affirm the jurisdiction where it is not excluded by express
provision or by incompatibility in its exercise arising from the nature
of the particular case.

When we consider the structure and true relations of the federal and
Grtate governments, there is really no just foundation for excluding the
state courts from all such jurisdiction.

The laws of the United States are laws of the several States, and
just as much binding on the citizens and courts thereof as state
laws are.

The United States is not a foreign sovereignty as regards the several
States, but is a concurrent and, within ite jurisdiction, paiamoimt
sovereignty. Every citizen of a State is a subject of two distinct
sovereignties, having concurrent jurisdiction in the State: concurrent
as to place and persons, though distinct as to subject-matter. Legal
or equitable rights, acquired under either system of laws^ may be
enforced in any court of either sovereignty competent to hear and
determine such kind of rights and not re&trained by its ccmstitution
in the exercise of such jurisdiction. Thus a legal or equital>le right
acquired under state laws may be prosecuted in the state courts, and
fjjso, if the parties reside in different States, in the federal courts.

So rights, whether legal or equitable, acquired under the laws of
the United States may be prosecuted in the United States courts or
in the state courts competent to decide rights of the like character
and cla3s^ subject, however, to this qualification, that where a right
arises under a law of the United States, Oongreee may, if it see fit,
give to the federal courts exclusive jurisdiction.

See remarks of Mr. Justice Field in The Moses Taylor (4 Wall., 429;
71 U. S., XVIII, 401), and Story, J., in Martin v. Hunter (1 Wheat,
334), and Mr. Justice Swayne in Ex parte McNeil (13 Wall., 236;
80 U. S., XX, 624).

This jurisdiction is sometimes exclusive by express enactment and
sometimes by implication.

If an act of Congress gives a penalty to a party aggrieved, without
specifying a remedy for its enforcement, there is no reason why it
should not be enforced, if not provided otherwise by some act of
Congress, by a proper action in a state court.

The fact that a state court derives its existence and fimctions from
the state laws is no reason why it should not aiTord relief, because it id
subject also to the laws of the United States, and is just as much
bound to recognize these as operative within the State as it is to
recognize the state laws. The two together form one sj'stem of juris-
prudence which constitutes the law of the land for the State; and the
courts of the two jurisdictions are not foreign to each other, nor to be



Online LibraryWilliam Wheeler ThorntonA treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars → online text (page 69 of 102)