feited his claim. In deciding adversely to the contention that he had the court said (p. 516):

"But as the law does not require affidavit before final certificate that no interest in the land has been sold, we perceive no reason why such contract, as was found to exist by the Supreme Court of Oregon, would vitiate the agreement to convey after the certificate is granted and the patent issued. If the entryman has complied with the statute and made the entry in good faith, in accordance with the terms of the law and the oath required of him upon making such entry, and has done nothing inconsistent with the terms of the law, we find nothing in the fact that, during his term of occupancy, he has agreed to convey an interest to be conveyed after patent issued, which will defeat his claim and forfeit the right acquired by planting the trees and complying with the terms of the law. Had Congress intended such result to follow from the alienation of an interest after entry in good faith it would have so declared in the law. Myers v. Croft, 13 Wall. 291."

It is elaborately insisted on behalf of the Government that there is a difference between the timber culture act and the timber and stone act, resulting from the fact that in the one case in the interim between the entry and the final proof a long time must elapse and much is required to be done by the applicant, while in the other a short time intervenes and substantially nothing is required to be done. But this reasoning, in effect, assails the wisdom of Congress in omitting the requirement in the act under consideration and affords no ground for inserting in the act requirements which Congress has, by express intendment, excluded therefrom. Besides, the weakness of the argument becomes apparent when it is borne in mind. that the timber and stone act and the timber culture act were enacted by the same Congress and with only a few days' interval between the two.

It remains only to consider whether it was within the power of the Commissioner of the General Land Office to enact rules and regulations by which an entryman would be compelled

rate

Opinion of the Court.

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to do that at the final hearing which the act of Congress must be considered as having expressly excluded in order thereby to deprive the entryman of a right which the act by necessary implication conferred upon him. To state the question is to answer it. As observed in Adams v. Church, supra, at p. 517: "To sustain the contention would be to incorpoa prohibition against the alienation of an interest in the lands, not found in the statute or required by the policy of the law upon the subject." True it is that in the concluding portion of § 3 of the timber and stone act it is provided that "effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Commissioner of the General Land Office." But this power must in the nature of things be construed as authorizing the Commissioner of the General Land Office to adopt rules and regulations for the enforcement of the statute, and cannot be held to have authorized him, by such an exercise of power, to virtually adopt rules and regulations destructive of rights which Congress had conferred. As then there was no requirement concerning the making in the final proof of an affidavit as to the particulars referred to, and as the entryman who had complied with the preliminary requirements was under no obligation to make such an affidavit and had full power to dispose ad interim of his claim upon the final issue of patent, we think the motive of the applicant at the time of the final proof was irrelevant, even under the broad rule which we have previously in this case applied, and therefore that error was committed not alone in instructing the jury that the indictment covered or could cover the procurement of perjury in connection with the final proof, and that the jury might base a conviction thereon, but in admitting the final proof as evidence tending to show the alleged illegal purpose in the primary application for the purchase of the lands. Reversed and remanded.

MR. JUSTICE HARLAN is of opinion that no substantial error was committed, and the judgment should be affirmed.

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Syllabus.

THE EMPLOYERS' LIABILITY CASES.1

IN ERROR TO THE CIRCUIT COURTS OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE AND THE WESTERN DISTRICT OF KENTUCKY.

Nos. 216, 222. Argued April 10, 11, 12, 1907.-Decided January 6, 1908.

In testing the constitutionality of an act of Congress this court confines itself to the power of Congress to pass the act and may not consider any real or imaginary evils arising from its execution. Under the grant given by the Constitution to regulate interstate commerce and the authority given to use all means appropriate to the exercise of the powers conferred, Congress has power to regulate the relation of master and servant to the extent that such regulations are confined solely to interstate commerce.

An act addressed to all common carriers engaged in interstate commerce, and imposing a liability upon them in favor of any of their employés, without qualification or restriction as to the nature of the business at the time of the injury, of necessity includes subjects wholly outside of the power of Congress under the commerce clause of the Constitution. The legislative power of Congress over the District of Columbia and the Territories is plenary and does not depend upon the special grants of power, such as the commerce clause of the Constitution.

To restrict a general act of Congress relating to common carriers, by interpretation to interstate commerce so as to validate it as to the carriers in the several States, would unduly restrict it as to carriers in the District of Columbia and the Territories.

While it is the duty of this court to so construe an act of Congress as to render it constitutional if it can be lawfully done, an ambiguous statute cannot be rewritten to accomplish this result.

Where a statute contains some provisions that are constitutional and some that are not, effect may be given to the former by separating them from the latter, but this rule does not apply where the provisions of the statute are dependent upon each other and are indivisible, or where it does not plainly appear that Congress would have enacted the constitutional legislation without the unconstitutional provisions.

One engaging in interstate commerce does not thereby submit all his business to the regulating power of Congress.

1 Docket titles, No. 216, Damselle Howard, Administratrix of Will Howard, deceased, v. Illinois Central Railroad Company and The Yazoo and Mississippi Valley Railroad Company; No. 222, N. C. Brooks, Administratrix of Morris S. Brooks, deceased, v. Southern Pacific Company.

Argument for Plaintiff in Error.

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While the act of Congress of June 11, 1906, 34 Stat. 232, known as the Employers' Liability Act, embraces subjects within the authority of Congress to regulate commerce, it also includes subjects not within its constitutional power, and the two are so interblended in the statute that they are incapable of separation and the statute is therefore repugnant to the Constitution of the United States and non-enforcible.1

THE facts, which involve the constitutionality of the act of Congress of July 11, 1906, relating to the liability of common carriers in the District of Columbia and Territories and common carriers engaged in interstate commerce to their employés, are stated in the opinion.

Mr. William R. Harr for plaintiff in error in No. 216.

See p. 489. See p. 504.

Mr. J. E. Torrance, with whom Mr. S. C. Bloss, Mr. Geo. 1 MR. JUSTICE WHITE delivered the opinion of the court. MR. JUSTICE DAY concurred with MR. JUSTICE WHITE. MR. JUSTICE PECKHAM delivered a separate opinion, with which the CHIEF JUSTICE and MR. JUSTICE BREWER agreed, concurring in result and in the proposition that as to traffic or other matters within the State the act is unconstitutional and it cannot be separated from that part which is claimed to be valid as relating to interstate commerce, but stating that he was not able to agree with all that is stated in the opinion of the court as to the power to legislate upon the subject of the relations between master and servant. See p. 504.

MR. JUSTICE MOODY delivered a separate opinion, agreeing with the opinion of the court in respect to the power of Congress to regulate the relation between common carriers engaged in interstate commerce and their employés, but dissenting from the result and conclusion that the act embraces subjects not within the constitutional power of Congress to regulate. See p. 504.

MR. JUSTICE HARLAN, with whom MR. JUSTICE MCKENNA concurred, delivered a separate opinion, agreeing with that part of the opinion of the court which held that it was within the power of Congress to prescribe, as between an interstate carrier and its employés, the rule of liability established by the act, but dissenting as to the result and as to the interpretation given to the act in the opinion of the court and concurring in the views expressed by MR. JUSTICE MOODY as to the scope and interpretation of the act. See p. 540.

MR. JUSTICE HOLMES delivered a separate dissenting opinion expressing the view that the words of the act could be read in such a way as to save its constitutionality by limiting its scope where necessary and that as so construed the act is valid in its main features under the Constitution. See p. 541.

207 U.S.

Argument for Plaintiff in Error.

Durelle and Mr. W. M. Smith were on the brief, for plaintiff in error in No: 222:

The act of June 11, 1906, is a regulation of interstate commerce. The Constitution is one of enumeration and not of definition; the power of Congress over interstate commerce is as extensive as that of the legislative body of any sovereign state over its commerce. Gibbons v. Ogden, 9 Wheat. 187.

The power of Congress to regulate commerce extends to all the means, appliances, facilities and instrumentalities of commerce. Welton v. Missouri, 91 U. S. 275, 280; Northern Securities Company v. United States, 193 U. S. 197, 344; Stockton v. Baltimore & N. Y. R. Co., 32 Fed. Rep. 9, 16. And this power extends to persons as well as property. Linn Sing v. Washburn, 20 California, 543; "Head Money Cases," 18 Fed. Rep. 135; Memphis & Little Rock Ry. Co. v. Nolan &c., 14 Fed. Rep. 532. This power also extends to those internal concerns which affect the States generally. See Gibbons v. Ogden, supra, 195.

A statute limiting a vessel owner's liability is valid. The Lottawanna, 21 Wall. 577; Providence &c. S. S. Co. v. Hill Mfg. Co., 109 U. S. 589. See opinion of Harlan, J., sustaining an employers' liability act of the State of Ohio. Peirce v. Van Dusen, 78 Fed. Rep. 700.

State acts of this character have been held constitutional, as within the police powers of the State. Missouri Pacific R. R. Co. v. Mackey, 33 Kansas, 298; S. C., 127 U. S. 205; Chicago &c. R. R. Co. v. Zernecker, 59 Nebraska, 689.

But the State may enact certain legislation for a purpose that is lawful, as police or quarantine legislation, while Congress may enact the same measures for the purpose of regulating commerce or as war regulation. Gibbons v. Ogden, supra. See Chicago &c. Ry. Co. v. Solan, 169 U. S. 133, 137, upholding a state statute denying to common carriers a right to limit their common law liability. Freund on Police Powers, 1904, p. 66, and also Houston & T. C. R. R. Co. v. Mayes, 201 U. S. 321.

Congress has the power to go beyond the general regulations