223 U.S.

Argument for Plaintiff in Error in No. 170.

The contract for service between a sailor and a vessel engaged in foreign commerce is part thereof and its terms may be directly prescribed by Congress. Patterson v. The Eudora, 190 U. S. 169, 176; Robertson v. Baldwin, 165 U. S. 275.

Congress may prescribe the character of instruments to be used in interstate commerce and declare the result of a failure so to do upon the agreement of employment between master and servant. Johnson v. So. Pacific Co., 196 U. S. 1; Schlemmer v. Buffalo, R. & P. Ry. Co., 205 U. S. 1; St. Louis &c. Ry. Co. v. Taylor, 210 U. S. 281, 294, 295.

Mr. Charles W. Bunn for plaintiff in error in No. 170: Probably the interests of the railway company, plaintiff in error, would be promoted by having the act of Congress sustained, thus securing to it at least one uniform law of liability throughout the States in lieu of the differing laws of many States. But the fact cannot be ignored that for over a century it has been supposed that laws such as this fell within the exclusive power of the States, and that this view is held still by a large proportion of the bar and people. In fact, while defendant in error as administratrix is maintaining this action under this law, a sister of deceased, not a party to this action, asserts the liability of the railway company to her under the Montana statute.

The act of Congress rests wholly upon the power of Congress to regulate commerce among the States, which is the power to prescribe the rules by which commerce is to be governed. Adair v. United States, 208 U. S. 161, 177. See article by Mr. Hackett in Harvard Law Review for November, 1908. From the adoption of the Constitution until recently it has been understood universally that the exclusive power is in the States to say for what negligence a master shall be liable to a servant, what shall

Argument for Plaintiff in Error in No. 170. 223 U. S.

be the effect of the servant's contributory negligence, what shall be the master's liability for the acts of fellow servants, whether any pecuniary liability shall arise out of death caused by negligence, what shall be the measure of damage in death and other negligence cases, and who shall receive the fruits of recovery.

While the power of Congress is supreme in its sphere, it does not extend beyond those subjects which pertain immediately and directly to commerce. The utmost ingenuity has failed to prove how commerce will directly be promoted or affected, or the movement of goods or passengers by rail directly influenced, by any rule governing the master's liability to his servant for defects in appliances, or for the acts of fellow servants, or establish the effect of the servant's own negligence, or determining when a liability arises for negligent death, or the extent of the damages, or the persons to whom the damages shall go.

The act is plainly distinguishable from safety appliance laws and from laws prescribing tests for qualification of trainmen. Such laws have an obvious and direct relation to commerce. They make transportation both of passengers and freight safer and more reliable.

Congress may have authority to regulate in some respects the relation of master and servant, but it has no such authority except to make rules really and substantially affecting commerce, and the rules laid down in the act in question do not so affect commerce.

Regulation of liability for injury to an employé merely because the master is engaged in interstate commerce, or because the employé is so engaged, is inadmissible, the particular regulation not being a rule of commerce or having any relation to commerce; or at most such a shadowy and indirect relation as not to be a regulation of commerce within the power of Congress. County of Mobile v. Kimball, 102 U. S. 691; Gloucester Ferry Co. v.

223 U. S. Argument for Plaintiff in Error in No. 170.

Pennsylvania, 114 U. S. 196; In re Rahrer, 140 U. S. 545; Robbins v. Shelby Taxing District, 120 U. S. 489; United States v. Knight Co., 156 U. S. 1; Hooper v. California, 155 U. S. 648.

The act of Congress probably conflicts with the law of every State, with some in one particular, with others in another. It would be impossible to enumerate such conflicts; but some of them are: in respect of the liability for the acts of fellow servants; in creating an action for death practically with unlimited damages; in distribution of proceeds in cases of recovery for death; in respect of the effect of contributory negligence and assumption of risk; in providing that no contract may be made between the parties contrary to the terms of the act; and in giving two years to bring action and in not requiring, as the laws of some States do, any preliminary notice to the defendant. Congress has assumed to enter the field of the administration of deceased persons. In some States damages for death are not subject to the claims of creditors; in others it is believed that they are; but if this act is valid it seems to remove that question from state control. Some States give the damages to the heirs, some to the next of kin, and some to the widow. The rules in the States vary widely in determining who is an heir or next of kin entitled to share in the recovery.

In this particular case the law of Montana would give the damages half to the widow and half to the sister; but the act of Congress assumes to overrule these state statutes, in the case at bar giving the whole damage to the widow to the exclusion of the sister, instead of dividing it between them.

Conflicts between the act of Congress and laws of the States result in annulling the acts of the States, providing that of Congress is valid, because if this is a regulation of commerce it is so well settled as now to be elementary, that Congress once having acted, state power over the

Argument for Defendant in Error in No. 170. 223 U. S.

whole subject (if indeed the States ever had any power) is ended; and any legislation by a State creating a liability of railway companies to their employés engaged in interstate commerce would be an unlawful interference with and burden upon such commerce. On this clear principle the plaintiff in error will not be liable to the sister of deceased, or to an administrator appointed for her benefit under the laws of Montana, provided this judgment is affirmed.

Plaintiff in error agrees with the Attorney General that railway companies have no employés who are not engaged in interstate commerce, unless indeed they carry on mining or some business apart from transportation. The whole line of a railroad extending through several States constitutes a single property and of necessity must be operated as such.

If the act in question is valid all employés of railways, at least all employed in or about the transportation carried on by railways, are taken out of the jurisdiction of the States of which they are citizens, to the extent of all the matters regulated by the act. The same will follow, if Congress chooses to act as to employés of manufacturers and merchants engaged in interstate commerce.

Mr. Samuel A. Anderson for defendant in error in No. 170:

Congress has power, under the commerce clause, to regulate the relation of master and servant as between an interstate carrier and an interstate servant. Employers' Liability Cases, 207 U. S. 463; Adair v. United States, 208 U. S. 161; Gibbons v. Ogden, 9 Wheat. 1, 196; El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S. 87; Peirce v. Van Dusen, 78 Fed. Rep. 693; The Daniel Ball, 10 Wall. 557; Gilman v. Philadelphia, 3 Wall. 713, 724, 725; United States v. Combs, 12 Pet. 72, 78; Cooley v. Board of Wardens &c., 12 How. 299; Patterson v. Bark Eudora, 190 U. S. 169.

223 U.S. Argument for Defendant in Error in No. 170.

Congress has the power to regulate the relation of master and servant as between an interstate carrier and an intrastate employé. See Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205; Minn. & St. Louis Ry. Co. v. Herrick, 127 U. S. 210; Chicago, Kansas & Western R. R. Co. v. Pontius, 157 U. S. 209; Tullis v. Lake Erie &c. R. R. Co., 175 U. S. 348; Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368; Minnesota Iron Company v. Kline, 199 U. S. 593.

The power of Congress to regulate commerce between the States is as great as to regulate commerce with foreign nations, the power in both instances originating solely from the commerce clause. See Brown v. Houston, 114 U. S. 622; Bowman v. Chicago &c. Ry. Co., 125 U. S. 465; Crutcher v. Kentucky, 141 U. S. 47; Pittsburg & Southern Coal Co. v. Bates, 156 U. S. 577.

The fact that the act declares that such common carriers shall be liable for injuries to interstate servants caused through the negligence of any employé does not tend to impair its validity. Watson v. St. Louis, I. M. & S. Ry. Co., 169 Fed. Rep. 942, 950.

Under the decisions on the Safety Appliance Acts, if any car in a train is being used in interstate commerce, all cars in that train must be equipped according to the provisions of the acts, whether such cars are being used or were ever used in carrying interstate merchandise. See Johnson v. Southern Pacific Ry. Co., 196 U. S. 1; Schlemmer v. Buffalo &c. Ry. Co., 205 U. S. 1; Wabash Railway Company v. United States, and Elgin J. & E. Ry. Co. v. United States, 168 Fed. Rep. 1.

Congress has power to impose liability upon an interstate carrier by railroad in favor of an interstate servant injured through the negligence of other employés working at and about and in connection with such interstate railroad, irrespective of the employment of the servant chargeable with careless acts resulting in such injury. Gilman v. Philadelphia, 3 Wall. 713; In re Debs, 158 U. S. 564.