10 Ga. App. 322 | Ga. Ct. App. | 1912
(After stating the foregoing facts.)
The sole question involved is whether the act of Congress of April 22, 1908, known as the Federal “employer’s liability act,” applies to this transaction. That statute, by its terms, relates only to liability of carriers by railroad “ while engaged in commerce between any of the several States” to persons “while employed by such carrier in such commerce.” It will be called to mind that the prior act of Congress on the same subject (the act of 1906) was declared unconstitutional by the Supreme Court of the United States in Howard v. Illinois Central R. Co., 207 U. S. 463 (52 L. ed. 297), on the ground that it applied to all carriers who were generally engaged in interstate commerce, as to all employees, whether the carrier and the employee were at the time of the injury actually engaged with commerce of that character or not. The present law was enacted with its limitations with the special object in view of cutting out the constitutional objection for which the prior law had been declared invalid. The present law emphasizes three things which must concur before its provisions are applicable: (1) the railroad company in question must engage in interstate commerce; (2) it must at the time of the injury in question be engaging in that character of commerce, as contradistinguished from such purely local matters as it may also engage in; (3) the injured servant must also at the time of receiving his injury be engaging in interstate commerce. That the carrier in this case was generally engaged in interstate commerce is not in question. The remaining questions are whether, at the time the injury complained of was
It is very difficult to impose the limitations of a definition upon the word “commerce” as used in the Federal constitution. How this_ term, which originally was considered as almost synonymous in .meaning with the word “ trade,” has been enlarged so as to include contracts, transportation, ways, means, and agencies, and even instrumentalities by which commercial intercommunications are carried on, is a matter of legal history. Still, with all of its enlargement of meaning, the word “commerce” has its limitations, and there are some things which, though touching the field of commercial operation, do not enter into it in such a way as to become of themselves a part of the commerce. The insuring of articles intended for interstate transportation is a matter which touches interstate commerce, but is not commerce within the purview of the constitution. Paul v. Virginia, 75 U. S. (8 Wall.) 168 (19 L. ed. 973); Hooper v. California, 155 U. S. 49 (39 L. ed. 297); Nutting v. Moss, 183 U. S. 553 (46 L. ed. 634). To manufacture goods with the intention of devoting them to interstate commerce is not interstate commerce. U. S. v. Knight Co., 156 U. S. 1 (39 L. ed. 325). In the case of Kidd v. Pearson, 128 U. S. 1 (32 L. ed. 346), in which it is held that a State may prohibit the manufacture of intoxicating liquors within its borders, notwithstanding that the manufacturer intends to use the liquors only for exportation beyond the borders of the State, the court, speaking through Mr. Justice Lamar, draws the distinction between manufacture and commerce thus: “No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufactures and commerce. Manufacture is transformation — the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. The
From these and other cases of the Supreme Court of the United States along the same line, it is clear that a distinction is observed between preparing to engage in interstate commerce and in engaging in interstate commerce. As was pointed out by the United States Supreme Court in Smith v. Alabama, 124 U. S. 465, 481 (31 L. ed. 508), “it is to be remembered that railroads'are not natural highways of trade and commerce; they are artificial creations; they are constructed within the territorial limits of the State and by the authority of its laws, and ordinarily bv means of corporations exercising their franchises by limited grants from the State.” And, as the opinion of the court in that case goes on to point out, there are many matters relating to the preparation of a
Just here let us make this point clearer: that wherever this Federal statute applies, all State laws give way and employer and employee alike are bound by its terms. Considering it in its operation throughout the entire United States and noticing its effect upon the local jurisprudence of the various States, it may be seen that in some States, as to some transactions, and as to some phases of what is commonly knoAvn as the'master and servant law, it gives the employee a benefit, while in other States, or as to other transactions, or as to other phases of the master and servant law, it gives the employer the benefit. Whatever it takes from one side it gives to the other, and AÚce versa. For instance, in the State of South Carolina, Avhere this very injury arose, the Federal act is more beneficial to the employee in this particular instance than the State law is, because the defense of fellow service is, by the Federal act, abolished as to the under-servant who inflicted this injury upon his foreman, Avhereas, under the South Carolina statute, the railroad company could have pleaded the doctrine of fellow servant, to exempt itself in such a case. And yet in most respects the South Carolina statute on this general subject is more favorable to the
After carefully considering the question, and with no other end in view than to give to the act of Congress just such scope as it is legally entitled to, without any prejudice for or against the legislation as such, we can not see how the act of repairing a broken rail in a railroad track is engaging in commerce at all, nor how the repairing of a part of the physical properties of a railroad, which are in their 'very nature permanently fixed within the limits of the State, can be regarded as an interstate transaction at all. To our minds neither the servant who struck the blow nor the servant whose ejre was injured through the blow’s being struck was engaged in interstate commerce, since the whole object of striking the blow was 'merely to drive a spike to hold in place a rail, that this defendant might have a railroad track upon which it could thereafter, if it so desired, engage in commerce, either interstate or intrastate. If ■the distinction between preparing to engage in commerce and the act of actually engaging in it is to be observed, this transaction falls ‘squarely within the domain of preparation.
We are aware that the courts, so far as they have passed upon