Opinion, per JOHNSON, J.

issue tried to the jury. Considerable documentary and oral testimony was introduced in evidence touching this issue. It was resolved by the jury in favor of the plaintiff.

We are bound, therefore, to conclude that these deductions were not made from time to time by the consent, request and authority of the plaintiff, but were made against his consent, and were not voluntary contributions on his part. Therefore, the conduct and management of this relief department, so far as this plaintiff is concerned, were not such as were approved and held to be legal by the adjudications of this court referred

to.

The emphasis placed by the court in P., C., C. & St. L. Ry. Co. v. Cox, supra, upon the fact that the contract of the plaintiff employe in that case was made voluntarily, and with full knowledge of the character and effect of the contract he was assuming, raises a distinct implication that the conclusion announced was as far as the court felt that it was justified in going in the case then before it. There was not applied in the case at bar any retroactive or ex post facto law or adjudication.

Moreover, even if an involuntary relief association had been permitted to conduct its operations prior to the passage of these statutes, that would not justify their continuance thereafter, nor render the statutes invalid or inoperative as to such association. Contracts and undertakings of the nature of those here in question, made by such associations, which fall within the inhibition of

Opinion, per JOHNSON, J.

statutes afterwards passed by the general assembly in the exercise of its police power, would thereby become ineffective. L. & N. Rd. Co. v. Mottley, 219 U. S., 467, and P., B. & W. Rd. Co. v. Schubert, 224 U. S., 603.

It is also contended that these statutes violate the 14th Amendment to the Constitution of the United States. It is sufficient as to this to say that a similar contract was under investigation by the supreme court of the United States in C., B. & Q. Rd. Co. v. McGuire, 219 U. S., 549. McGuire was an employe of the company and a member of its relief association. After his injuries he accepted benefits to the extent of $822. In reference to the Iowa statute concerning relief associations, which is similar to the Ohio statute, the federal supreme court held in the McGuire case that a state has power to prohibit contracts limiting liability for injuries, made in advance of the injuries received, and to provide that the subsequent acceptance of benefits under such contracts shall not constitute satisfaction of the claim for injuries received after the contract, and that such a statute does not impair the liberty of contract guaranteed by the 14th Amendment.

Statutes prescribing penalties for violation of regulatory laws are familiar and their validity established when found reasonable. C., S. & C. Rd. Co. v. Cook, 37 Ohio St., 265; Seaboard Air Line Ry. v. Seegers, 207 U. S., 73; Western Union Telegraph Co. v. James, 162 U. S., 650; L. S. & M. S. Ry. Co. v. Ohio, 173 U. S., 285,

Opinion, per JOHNSON, J.

Counsel for plaintiff in error earnestly insist that the federal congress has legislated on the subject as respects interstate commerce by the act of April 26, 1908, the Employers' Liability Law, and that the regulations prescribed by that law are exclusive. By reason of which it is asserted that the provisions of Sections 9012, 9013, 9014, General Code, can no longer have any effect with relation to interstate commerce. The provisions of the Federal Employers' Liability Law, which it is contended have this effect, are as follows:

"Sec. 5. Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this Act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief, benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought." (35 Stats. at Large, 66, c. 149.)

The position taken is that this legislation precludes any action by the states touching relief associations in the manner provided by the Ohio statutes here involved. It is said that the Ohio statute is inconsistent with the policy established by congress; that the federal act, after declaring void all contracts exempting carriers from liability thereby created, instead of giving employes the

Opinion, per JOHNSON, J.

right to recover penalties on account of such contracts, provides for a set-off against their claims for injuries, etc., of any sums the carrier has contributed or paid in relief, benefit or indemnity that may have been paid to the injured employe.

It is elementary that in matters in which congress and the state legislatures have concurrent jurisdiction, the state may legislate until such time as congress acts upon the subject. When the power of congress is exercised that of the state is superseded; and it has been determined in a number of cases by the United States supreme court that the Federal Employers' Liability Act supersedes the common law and the statutes of the states relating to the liability of railroads for injuries to their employes while engaged in interstate commerce. (Mondou v. N. Y., N. H. & H. Rd. Co., 223 U. S., 1, and New York Central Rd. Co. v. Winfield, 244 U. S., 147.) But it is equally well settled that when power was conferred upon congress to regulate commerce between the states it was not intended to cut the states off from the exercise of their police power in prescribing regulations relating to the health, morals, safety and welfare of the citizens, although the regulations might indirectly affect the commerce of the country. Sherlock et al. v. Alling, Admr., 93 U. S., 99, 103.

In referring to the rules which should determine when a federal statute regulating commerce will be held to supersede state legislation in the exercise of police power, Mr. Justice Hughes, in Savage v. Jones, 225 U. S., 501, says at page 525: "When the local police regulation has real relation to the

Opinion, per JOHNSON, J.

suitable protection of the people of the State, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce, provided it does not conflict with legislation enacted by Congress pursuant to its constitutional authority." (Citing many cases.) He further says, at page 533: "If the purpose of the act cannot otherwise be accomplished — if its - if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect - the state law must yield to the regulation of Congress within the sphere of its delegated power." (Citing cases.) And, further, on the same page: "But the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State. This principle has had abundant illustration." (Citing many cases.)

In Atlantic Coast Line Rd. Co. v. State of Georgia, 234 U. S., 280, it was held that congress did not by the passage of the federal safety. appliance act, dealing with the equipment of locomotives as well as of cars, and the act regulating commerce, preclude the states from legislating concerning locomotive headlights, as to which congress had not specifically acted.

In Savage v. Jones, supra, it was held that the passage by congress of the food and drug act of