11

part of its business, engaged in carrying on interstate commerce renders it subject to federal regulation as to all its activities. There was also raised the question whether the relation between an employing company and its employees is itself a part of the interstate commerce which the company carries on. Both of these questions were discussed in Howard v. Illinois Central R. Co.11 The first and more important question the court answered in the negative. "To state the proposition," the court say, "is to refute it. It assumes that, because one engages in interstate commerce, he thereby endows Congress with power not delegated to it by the Constitution; in other words, with the right to legislate concerning matters of purely state concern. It rests upon the conception that the Constitution destroyed that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in interstate commerce as a privilege which cannot be availed of except upon such conditions as Congress may prescribe, even although the conditions would be otherwise beyond the power of Congress. It is apparent that if the contention were well founded it would extend the power of Congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the Constitution, and would destroy the authority of the States as to all conceivable matters

11 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. ed. 297. As to the second question the court said: "We fail to perceive any just reason for holding that Congress is without power to regulate the relation of master and servant, to the extent that regulations adopted by Congress on that subject are solely confined to interstate commerce, and therefore are within the grant to regulate that commerce, or within the authority given to use all means appropriate to the exercise of the powers conferred. To illustrate: Take the case of an interstate railway train; that is, a train moving in interstate commerce, and the regulation of which therefore is, in the nature of things, a regulation of such commerce. It cannot be said that because a regulation adopted by Congress as to such train when so engaged in interstate commerce deals with the relation of the master to the servants operating such train or the relations of the servants engaged in such operation between themselves, that it is not a regulation of interstate commerce. This must be, since to admit the authority to regulate such train, and yet to say that all regulations which deal with the relation of master and servants engaged in its operation are invalid for want of power, would be but to concede that power and then to deny it; or, at all events, to recognize and yet render it incomplete."

which, from the beginning, have been, and must continue to be, under their control so long as the Constitution endures."

The court then go on to hold the act void as to the States because its application was not limited by its terms to injuries and deaths incurred by persons while engaged at the time in interstate com

§ 350. Employers' Liability Law of 1908.

In order to meet the constitutional objections raised by the Supreme Court to the act of 1906, Congress in 1908 enacted a measure similar to the earlier law except that its provisions are expressly confined to actions growing out of injuries or deaths to persons while actually engaged in the carrying on of interstate

commerce.

The constitutionality of this measure has not been passed upon by the Supreme Court. It would appear, however, that its validity is not yet a matter beyond doubt. In the Howard case the court held, as already quoted, that the relation between an interstate carrier and its servants is not necessarily a matter distinct from the interstate commerce which is carried on, and, therefore, beyond the regulative control of Congress; but the court did not hold, and has not yet specifically held that the matter of the liability of such a carrier for accidents accruing to its employees due to the negligence or ill conduct of employers is so directly related to interstate commerce as to bring this liability within the determining power of Congress. Unless this be so the act of 1908, though limited in terms to interstate commerce, must fail.13

12 The law in a later case was held valid as to the District of Columbia, and inferentially as to the Territories. El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S. 87; 30 Sup. Ct. Rep. 21.

13 It is to be remarked, however, that in Adair v. United States (208 U. S. 161; 28 Sup. Ct. Rep. 277; 52 L. ed. 436) the decision in the Howard case is referred to as sustaining the power of Congress "to prescribe the rule of liability, as between interstate carriers and its employees in such interstate commerce, in cases of personal injuries received by employees while actually engaged in such commerce." It would seem to the author, however, that the language of the Howard case was not quite so specific as this.

§ 351. Federal Safety Appliances Acts.

Congress has, by a series of acts, beginning with that of 1893, sought to increase the safety of trains crossing state lines, by requiring that they shall be equipped with certain approved safety devices. The constitutionality of the first of these measures has been affirmed by the Supreme Court.14 And in Howard v. Illinois Central R. Co. Justice Moody in his dissenting opinion declared, "if the statute now before us is beyond the constitutional power of Congress surely the safety appliance act is also void, for there can be no distinction in principle between them." This was, of course, obiter, and, it would seem, a statement unadvisedly made, for it is clear that the requirement that safety appliances be used has a direct relation to the instrumentalities of interstate com

Cook in his Commerce Clause of the Federal Constitution (§§ 38, 39), argues that the federal power under the Commerce Clause should be held to justify only those regulations which are for the benefit of those enjoying the benefit of interstate transportation. "For instance," says Cooke, “in the case of a corporation there are many matters of internal management, thus the amount and character of capital stock and indebtedness, as to which it seems doubtful whether any regulation thereof would be for the benefit of transportation by such corporation. Much at least of such regulation would seem to be merely for the benefit of the public, and though within the power of the States, beyond the scope of the Commerce Clause. . . . By this test a mere regulation of, for instance, the liability of a carrier to its employees for negligence seems not within such scope."

In Hoxie v. N. Y. N. H. & H. Ry. Co. (73 Atl. Rep. 754) the Supreme Court of Errors of Connecticut has held not only that the act of 1908 does not, and constitutionally could not compel state courts to enforce rights, or adopt procedure not recognized by the laws of its own State, but that the act is unconstitutional and void in its entirety, in that it does not confine its application to accidents due to the negligence of employees while engaged in interstate commerce. It is provided that the person injured must, to come within the terms of the act, be engaged at the time in interstate commerce, but the court point out, the injury may be occasioned by the negligence of an employee not then so engaged. Also, it is declared, the provision of the act which declares void any contract between an interstate carrier and his employees intended to enable it to exempt itself from the liability created by the act, is in violation of the due process law clause of the Fifth Amendment.

14 St. Louis, etc., Co. v. Taylor, 210 U. S. 281; 28 Sup. Ct. Rep. 616; 52 L. ed. 1061.

merce, and that the power to regulate interstate commerce includes the authority to regulate the instrumentalities by which it is carried on has been repeatedly held by the Supreme Court.15

In Johnson v. Southern Pacific R. Co.16 the Safety Appliance Law was considered and applied without question as to its constitutionality.

In United States v. Colorado & N. W. R. Co.17 these acts were held applicable to lines of railroad lying wholly within a State, but serving as a link in an interstate route.

§ 352. Federal Eight Hour Law.

By act of 1907, entitled "An Act to Promote the Safety of Employees and Travellers upon Railroads by Limiting the Hours of Service of Employees Thereon" Congress has undertaken to determine the number of hours a day which employees upon interstate railways may be permitted or required to labor. This measure relates to the contract between the employing companies and their employees and thus falls in the same category as the Employers' Liability Act. Its relation to safe and efficient service would, however, seem to be somewhat more direct than the latter act.

15" Commerce, in its simplest signification, means an exchange of goods; but, in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities and enter into commerce; the subject, the vehicle, the agent, and their various operations become the objects of commercial regulations." Justice Johnson in Gibbons v. Ogden, 9 Wh. 1; 6 L. ed. 23.

"It is true that the commercial power conferred by the Constitution is one without limitation. It authorizes legislation with respect to all the subjects of foreign and interstate commerce, the persons engaged in it, and the instruments by which it is carried cn." Sherlock v. Alling, 93 U. S. 99; 23 L. ed. 819.

"The power

embraces within its control all instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged." Gloucester Ferry Co. v. Pa., 114 U. S. 196; 5 Sup. Ct. Rep. 826; 29 L. ed. 158. The Safety Appliance Acts also meet the test suggested by Cooke.

16 196 U. S. 1; 25 Sup. Ct. Rep. 158; 49 L. ed. 363.

17 157 Fed. Rep. 321.

§ 353. Trades Unions and Interstate Commerce; Federal Legis

lation with Reference to.

By an act of October 1, 1888, later repealed and replaced by that of June 1, 1898, Congress has made provision for the arbitration of disputes between interstate carriers and their employees. The three arbitrators are selected, one by the company, one by the labor union to which the employees directly interested belong, and the third by these two, and are given power to take testimony, summon witnesses, administer oaths, compel the production of papers, etc. Section 3 provides that the testimony and the award of the arbitrators, when filed in the circuit court for the district in which the controversy arises, shall be final and conclusive on both parties unless set aside for error of law apparent on the record, but that no employee shall be compelled to render personal services without his consent.

Section 10 declares, inter alia, that it shall be a misdemeanor for employer or agent to require of an employee, as a condition of employment, that he will not become or remain a member of a trade union, or threaten him with loss of employment if he becomes or remains a member. 18

18 Section 10: "That any employer subject to the provisions of this act, and any officer, agent, or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization; or who shall require any employee or any person seeking employment, as a condition of such employment, to enter into a contract whereby such applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release such employer from legal liability for any personal injury by reason of any benefit received from such fund beyond the proportion of the benefit arising from the employer's contribution to such fund; or who shall, after having discharged an employee attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars."