RAILROADS.

Act of March 4, 1907, Ch. 2939, 581.

Sec. 1. Railroads - Service Hours of Employees Restricted-- Meaning of Word "Railroad"- Meaning of Word "Employees," 581.

2. Sixteen Hours the Maximum Continuous Service of Trainmen-Ten Consecutive Hours off Duty. Service Hours of Telegraph, etc., Operators - Period May Be Extended, 582.

3. Penalty for Violation

Prosecutions Unavoidable Accidents, etc.

Wrecking, etc., Crews, 583.

4. Enforcement, 584.

5. Effect, 584.

Act of April 22, 1908, Ch. 149, 584.

Sec. I. Liability of Railroads for Injuries to Employees, 584.

2. Damages for Injuries in Territories, District of Columbia, Canal Zone, etc., 584.

3. Contributory Negligence of Employee, 585.

4. Assumption of Risk of Employment, 585.

5. Agreements, etc., for Exemption from Liability-Set-off of Insurance, etc.,

Contributions, 585.

6. Time Limit for Actions, 585.

7. Receivers, 585.

8. Prior Laws Not Affected, 585.

Act of May 27, 1908, Ch. 200, 588.

Railway Safety Appliance Act — Inspection of Mail Cars, 588.

Act of May 30, 1908, Ch. 225, 588.

Sec. 1. Locomotive Ash Pan-Engines to Be Equipped with Safety Pans, 588.

2. Use of Locomotives Not Equipped with, Forbidden, 588.

3. Penalty for Violation - Suits -- Information, 588.

4. Interstate Commerce Commission to Enforce Act, 589.

5. Receivers, etc., Included in Term “Common Carrier," 589.

6. Exception, 589.

CROSS-REFERENCES.

Transportation of Animals, see ANIMALS.

Encroachment on Cemetery Roads and Works, see CEMETERIES.

Grant of Lands in Indian Reservations, see INDIANS.

Interstate Commerce Act Amended, Rates, Rebates, etc., see INTERSTATE COMMERCE.

Transportation of Mails and Railway Postal Clerks, see POSTAL SERVICE. Right of Way through Public Lands, see PUBLIC LANDS.

An Act To promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon.

[Act of March 4, 1907, ch. 2939, 34 Stat. L. 1415.]

[SEC. 1.] [Railroads - service hours of employees restricted - meaning of word "railroad" meaning of word "employees."] That the provisions of this Act shall apply to any common carrier or carriers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad in the District of Columbia or any Territory of the United States, or

from one State or Territory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term "railroad" as used in this Act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "employees" as used in this Act shall be held to mean persons actually engaged in or connected with the movement of any train. [34 Stat. L. 1415.]

The constitutionality of this enactment was attacked in State v. Chicago, etc., R. Co., (Wis.) 117 N. W. 691. It was claimed that the Act was objectionable upon the same ground as the Employers' Liability Act of 1906, which was held to be unconstitutional in Employers' Liability Cases, 207 U. S. 463, 52 U. S. (L. ed.) 297, 28 Sup. Ct. Rep. 141. The court said on this point: "The Act of Congress of March 4, 1907, was passed after that case had been decided in the same way in the lower court, and after a writ of error had been for some time pending in the Supreme Court, and the department of justice had asked, and been granted, right to be heard on behalf of the United States on the question of constitutionality. The contention of those who attacked the employers' liability law was doubtless well known to the Interstate Commerce Commission and to the Congress. It is therefore entirely natural and probable that an attempt would have been made to differentiate the latter enactment from the former one, and to escape the somewhat technical ground of invalidity in the former. It is without surprise, therefore, that we find such dif

ferentiating provision in the first section, to the effect that the provisions of this Act shall apply to any common carrier or carriers, their officers, agents and employees, engaged in the transportation of passengers,' etc., between the several states, and also: The term "employees" as used in this Act shall be held to mean persons actually engaged in or connected with the movement of any [interstate] train.' It will also be noted that the hours of employment are prescribed for any employee subject to this Act.' We cannot doubt that by these phrases the operation of the present Act was limited, not only to employers engaged in interstate commerce, but to the conduct of employees so engaged, to the exclusion of any who might be engaged purely in the domestic affairs of the employer, and that by this very distinction and limitation of the application of the Act the legislation is brought within that portion of the decision which holds that the Employers' Liability Act would have been valid had it been confined in application to the relation of employees while engaged in interstate commerce."

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SEC. 2. [Sixteen hours the maximum continuous service of trainmen consecutive hours off duty service hours of telegraph, etc., operators— period may be extended.] That it shall be unlawful for any common carrier, its officers or agents, subject to this Act to require or permit any employee subject to this Act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: Provided, That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives. or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-fourhour period on not exceeding three days in any week: Provided further, The Interstate Commerce Commission may after full hearing in a particular case

and for good cause shown extend the period within which a common carrier shall comply with the provisions of this proviso as to such case. [34 Stat. L. 1416.]

SEC. 3. [Penalty for violation — prosecutions unavoidable accidents, etc. wrecking, etc., crews.] That any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon satisfactory information being lodged with him; but no such suit shall be brought after the expiration of one year from the date of such violation; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge. In all prosecutions under this Act the common carrier shall be deemed to have had knowledge of all acts of all its officers and agents: Provided, That the provisions of this Act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen: Provided further, That the provisions of this Act shall not apply to the crews of wrecking or relief trains. [34 Stat. L. 1416.]

State legislation of this character, in so far as it relates to interstate commerce, becomes inoperative and unenforceable by reason of this enactment. State v. Missouri Pac. R. Co., (Mo.) 111 S. W. 500; State v. Chicago, etc., R. Co., (Wis.) 117 N. W. 686.

Its

According to some courts the federal statute superseded and invalidated the state statutes from the time of its adoption, and not from the date when it became operative. See cases cited, supra, in both of which it appeared that the state statute was enacted after the passage of the federal Act. In State v. Missouri Pac. R. Co., (Mo.) 111 S. W. 500, 506, it was insisted that the state law was valid from June 14, 1907 (the date it went into effect) until March 4, 1908 (the date the federal law went into effect), during which time the violation charged occurred. The court said to this contention: "We must construe the federal Act by reading into its dry letter its manifest spirit and purpose. dry letter reads that it shall not go into effect for one year. What was the meaning of, the object to be subserved by, that suspension of the operation of the law? What, except to preserve the equities of the situation by impliedly giving common carriers engaged in interstate commerce one year in which to get a supply of experienced telegraph and telephone operators and trainmen to carry on their business without interruption and hindrance, and otherwise adjust their business affairs to the shorter hours required by that Act? When broadly judged, the federal law must be construed as a notice (in the nature of a caveat) to all state legislatures, first, that Congress has occupied the ground by its statutory regulations; second, that in its high

wisdom it has prescribed and marked out a transition or preparatory period of one year (a sort of truce period). Now, with such broad and wise purposes read into the federal Act, shall any state legislature thereafter sit in judgment upon the wisdom of such truce period, and say, in effect, 'We deem it too long and too liberal'? Shall it say, in effect, 'We see you have suspended your Act for one whole year; we find by mathematical computation there is left six months or so which we may cover by a state law, and accordingly we shall pass a law giving shorter hours than yours that will be good at least from June 14, 1907, until March 4, 1908'? If the one law grants, by necessary implication, a breathing spell, shall the other take it away? If the one chalks out a policy, may the other rub it out? In our opinion the comity that should exist between state and federal legislative power prohibits our taking that ungracious and narrow view."

But, according to other courts, the mere approval of the federal statute did not render a state act inoperative upon the theory that the former was a direct utterance of Congress under its constitutional power upon the same right, during the interim between the passage of this law and the date when it was to become operative the state statute was effective. State v. Northern Pac. R. Co., (Mont.) 93 Pac. 945 (wherein it appeared that the state law was passed a month before the federal statute was adopted); State v. Northern Pac. R. Co., (Wash, 1909) 102 Pac. 876 (wherein it appeared that the state law was passed after the adoption of the federal statute). In the latter case the court said: "The federal statute did not speak as a stat

ute until after March 4, 1908, the date on which it went into effect; for if a law passed to take effect at a future day must be construed as if passed on that day, and if prior to the time it goes into effect no rights can be acquired under it and no one is bound to regu. late his conduct according to its terms, it is idle to say that it has the effect of a statute between the time of its passage and the time of its taking effect. A statute cannot be both operative and inoperative at the same time. It is either a law or it is not a law, and, without special words of limitation, when it goes into effect for one purpose it goes into effect for all purposes. So with this statute it cannot be a law between the day of its passage and the day it is made to go into effect for the

purpose of superseding the state statute, and not a law for any other purpose. Undoubtedly the federal legislature could have so framed its Act as to supersede state legislation on the subject-matter involved, and at the same time have given the carriers affected a year within which to regulate their business to meet the changed conditions, but it did not do this. It postponed the operation of the entire Act for one year after its passage, leaving the field open for state legislation during that period; and, this being true, it follows as of course that the Act did not suspend or supersede the state legislation on the same subject-matter on any principle of paramount right of legislation until the end of the year."

SEC. 4. [Enforcement.] It shall be the duty of the Interstate Commerce Commission to execute and enforce the provisions of this Act, and all powers granted to the Interstate Commerce Commission are hereby extended to it in the execution of this Act. [34 Stat. L. 1417.]

SEC. 5. [Effect.] That this Act shall take effect and be in force one year after its passage. [34 Stat. L. 1417.]

An Act Relating to the liability of common carriers by railroad to their employees in certain

cases.

[Act of April 22, 1908, ch. 149, 35 Stat. L. 65.]

[SEC. 1.] [Liability of railroads for injuries to employees.] That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. [35 Stat. L. 65.]

The notes to the various sections of this Act are grouped at the close, infra, p. 585.

SEC. 2. [Damages for injuries in territories, District of Columbia, canal zone, etc.] That every common carrier by railroad in the Territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier,

or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. [35 Stat. L. 65.]

SEC. 3. [Contributory negligence of employee.] That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. [35 Stat. L. 66.]

SEC. 4. [Assumption of risk of employment.] That in any action brought against any common carrier under or by virtue of any of the provisions of this Act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. [35 Stat. L. 66.]

SEC. 5. [Agreements, etc., for exemption from liability-set-off of insurance, etc., contributions.] That 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 Stat. L. 66.]

SEC. 6. [Time limit for actions.] That no action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued. [35 Stat. L. 66.]

SEC. 7. [Receivers.] That the term "common carrier" as used in this Act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier. [35 Stat. L. 66.]

SEC. 8. [Prior laws not affected.] That nothing in this Act shall be held to limit the duty or liability of common carriers or to impair the rights of their employees under any other Act or Acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the Act of Congress entitled "An Act relating to liability of common carriers in the District of Columbia and Territories, and to common carriers engaged in commerce between the States and between the States and foreign nations to their employees," approved June eleventh, nineteen hundred and six. [35 Stat. L. 66.]

The Act of June 11, 1906, referred to in the above section, reads as follows:

"[SEC. 1.] That every common carrier engaged in trade or commerce in the District of

Columbia, or in any Territory of the United States, or between the several States, or between any Territory and another, or between any Territory or Territories and any State or