Argument for Defendant in Error.

203 U.S.

tions of a number of courts. Park v. Detroit Free Press Co., 72 Michigan, 560; McGee v. Baumgartner, 129 Michigan, 287; Hanson v. Krehbeil (Kans.), 64 L. R. A. 790; Osborne v. Leach, 135 N. Car. 628. The act is class legislation and void. Railroad Co. v. Ellis, 165 U. S. 150; Smyth v. Ames, 169 U. S. 466; Cotting v. Goddard, 183 U. S. 79; Railroad Tax Cases, 13 Fed. Rep. 722; 18 Fed. Rep. 385; Passadena v. Stinson, 91 California, 238; Lunnan v. Hutchinson Bros. Co., 46 L. R. A. 393; State v. Walsh, 35 L. R. A. 231; Ex parte Leo Jentzsch, 32 L. R. A. 664; Stratton v. Morris (Tenn.), 12 L. R. A. 70; Dixon v. Poe, 60 L. R. A. 308; 33 L. R. A. 589, 592; Railroad Co. v. Taylor, 86 Fed. Rep. 168; Cooley on Constitutional Limitations, 393.

Mr. James P. Wilson, for defendant in error:

This statute in no manner obstructs or interferes with or attempts to regulate commerce between the States, and is not in contravention of art. I, sec. 8, of the Constitution of the United States. It may be conceded that the carrying of the United States mails is a matter relating to interstate commerce, and that the regulation of it rests with Congress. It is conceded that the plaintiff was in charge of the mails at the time of his injury. These admitted facts in no manner affect the question. Pennsylvania Railroad Co. v. Price, 96 Pa. St. 264; Railroad Co. v. Price, 113 U. S. 218; Lake Shore &c. R. R. v. Ohio, 173 U. S. 258.

The cases cited by plaintiff in error are examples of an attempt upon the part of a State either to impose a direct tax upon articles of commerce coming into the State, or attempts to exclude or discriminate against the classes of persons brought into the State or to impose a tax upon the traffic in articles carried from another State, and thus to interfere with interstate commerce. They are all based upon the principle that a State cannot legislate in such a manner as to obstruct the free carriage of freight or passengers from State to State, or to enact laws which have for their tendency the regulation of such traffic. These authorities are all reviewed

and clearly distinguished in the case of Railroad v. Kentucky, 116 U. S. 700. See also Pierce v. Van Dusen, 78 Fed. Rep. 693; Northern Pacific R. R. v. Adams, 192 U. S. 440; Boering v. C. B. Ry. Co., 193 U. S. 442; Duncan v. Maine Ry. Co., 113 Fed. Rep. 508.

A State might entirely cut off the right of a beneficiary to recover for wrongful death and such an act might by a parity of the reason deter mail clerks from coming into the State lest, if they be killed, their heirs would have no right to compensation, yet no court would hold that such an act attempted to regulate or interfere with interstate commerce. Sherlock v. Alling, 93 U. S. 99.

The constitutionality of this statute has been challenged in the case of Kirby v. Railroad Co., 76 Pa. St. 506; Railroad v. Price, 96 Pa. St. 256 and Miller v. Railroad Co., 154 Pa. St. 473. The latter case went to the Supreme Court of the United States and is reported in 168 U. S. 131. This statute is clearly within the constitutional rights of the legislature to enact laws which operate equally upon all of a certain class and which affect all persons pursuing the same business under the same conditions, alike. 6 Am. & Eng. Ency. of Law, 2d ed., 970.

Statutes of this nature must not be capricious, arbitrary or unreasonable, but a very large discretion is accorded to the state legislatures and recognized by the Federal courts. Louisville &c. Ry. Co. v. Kentucky, 161 U. S. 701.

The classification of the statute is not arbitrary and not against public policy. Voigt v. Baltimore & Ohio R. R., 176 U. S. 176; Bates v. Old Colony R. R., 147 Massachusetts, 255. See Northern Pacific Railroad Co. v. Adams, 192 U. S. 440; Biering v. Chesapeake Beach R. R. Co., 193 U. S. 442.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court..

We quote the Pennsylvania statute of April 4, 1868, upon which the case turns:

"Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, that when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company, or in or about any train or car, therein or thereon, of which company such person is not an employé, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employé, provided that this section shall not apply to passengers."

As the application of the statute, if valid, presents no Federal question, we are unconcerned with that matter, although it may be observed in passing that it is conceded in the argument at bar that under the settled construction given to the statute by the Supreme Court of Pennsylvania the plaintiff, as a railway postal clerk, was not a passenger and had no greater rights in the event of being injured in the course of his employment than would have had an employé of the railroad company.

Was the application of the statute thus construed to a railway postal clerk of the United States, in conflict with the power of Congress to establish post offices and post roads?

In Price v. Pennsylvania Railroad Co., 113 U. S. 218, this question was in effect foreclosed against the plaintiff in error. That case was brought to this court from a judgment of the Supreme Court of Pennsylvania, 96 Pa. St. 258, holding that a railway postal clerk was not a passenger within the meaning of the Pennsylvania act, and hence had no right to recover for injuries suffered by him in consequence of the negligence of an employé of the company. The Federal ground there relied upon was substantially the one here asserted; that is, the power of the Government of the United States to establish post offices and post roads, and the effect of the legislation of Congress and the act of the Postmaster General in appointing mail clerks thereunder. After fully considering the subject the case

was dismissed because no substantial Federal ground was involved, the court saying (113 U. S. 221):

"The person thus to be carried with the mail matter, without extra charge, is no more a passenger because he is in charge of the mail, nor because no other compensation is made for his transportation, than if he had no such charge, nor does the fact that he is in the employment of the United States, and that defendant is bound by contract with the Government to carry him, affect the question. It would be just the same if the company had contracted with any other person who had charge of freight on the train to carry him without additional compensation. The statutes of the United States which authorize this employment and direct this service do not, therefore, make the person so engaged a passenger, or deprive him of that character, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not belong to any other person in a similar employment, by others than the United States."

This brings us to the second contention, the repugnancy of the Pennsylvania statute to the commerce clause of the Constitution. It is apparent from the decision in the Price case, just previously referred to, that in deciding that question we must determine the application of the statute to the plaintiff in error, wholly irrespective of the fact that at the time he was injured he was a railway postal clerk. In other words, the validity or invalidity of the statute is to be adjudged precisely as if the plaintiff was at the time of the injury serving for hire in the employ of a private individual or corporation.

Under the circumstances we have stated, the case of Pennsylvania Railroad Co. v. Hughes, 191 U. S. 477, clearly establishes the unsoundness of the contention that the Pennsylvania statute in question was void because in conflict with the commerce clause. In that case a horse was shipped from a point in the State of New York to a point in the State of Pennsylvania under a bill of lading which limited the right of

recovery to not exceeding one hundred dollars for any injury which might be occasioned to the animal during the transit. The horse was hurt within the State of Pennsylvania through the negligence of a connecting carrier. In the courts of Pennsylvania, applying the Pennsylvania doctrine which denies the right of a common carrier to limit its liability for injuries resulting from negligence, a recovery was had in the sum of ten thousand dollars, the value of the animal. On writ of error from this court the judgment of the Supreme Court of Pennsylvania was affirmed, it being held that, at least in the absence of legislation by Congress on the subject, the effect of the commerce clause of the Constitution was not to deprive the State of Pennsylvania of authority to legislate as to those within its jurisdiction concerning the liability of common carriers, although such legislation might to some extent indirectly affect interstate commerce. The ruling in the Hughes case in effect but reiterated the principle adopted and applied in Chicago, Milwaukee &c. Ry. Co. v. Solan, 169 U. S. 133, where an Iowa statute forbidding a common carrier from contracting to exempt itself from liability was sustained as to a person who was injured during an interstate transportation.

The contention, that because in the cases referred to, the operation of the state laws, which were sustained, was to augment the liability of a carrier, therefore the rulings are inapposite here, where the consequence of the application of the state statute may be to lessen the carrier's liability, rests upon a distinction without a difference. The result of the previous rulings was to recognize, in the absence of action by Congress, the power of the States to legislate, and of course this power involved the authority to regulate as the State might deem best for the public good, without reference to whether the effect of the legislation might be to limit or broaden the responsibility of the carrier. In other words, the assertion of Federal right is disposed of when we determine the question of power, and doing so does not involve considering the wisdom