48 Colo. 249 | Colo. | 1910
Lead Opinion
From the admissions in the pleadings and from the testimony, it appears that Charles R. Felt, aged about twenty-five years, the son of the plaintiffs, while attempting to couple ears in the pursuit of his employment as a brakeman of the defendant, received injuries causing his death in the month of February, 1902; that the defendant is a common carrier and was engaged, at the time of the injury, in the business of carrying interstate traffic for hire over its narrow gauge line extending from Colorado into the territory of New Mexico; that the cars between which Felt was caught and crushed were narrow gauge cars; thkt neither of the cars was equipped with automatic couplers, but both were equipped with link and pin couplers; that car No. 6918, one of the cars between which Felt was caught and crushed, came into the state from the terrritory of New Mexico loaded with lumber billed for Florence; that the lumber had been unloaded, and that the car was being held under orders at Florence awaiting a train to carry it to Salida, the distributing point for-cars of that division, and’at the time Felt was injured, he was attempting to couple this car into a train bound for Salida, where the car was to be held under general orders to be used whenever needed in the general traffic of the company over the narrow gauge line.
The complaint contains two- causes of action.
In the first, negligence in not complying with the Federal Safety Appliance Act is charged — in the
A general demurrer to the second cause of action having been sustained, the cause was tried upon the first cause of action.
At the close of the plaintiffs’ case, the court directed a verdict in favor of the defendant, holding that neither of the cars of the defendant, between which the son of the plaintiff was crushed, was at the time of the injury, under the control of congress, and judgment of dismissal followed.
The plaintiff objected to the court directing a verdict, excepted to the ruling granting that motion, and excepted to the verdict directed. From the judgment the plaintiffs appealed to the court of appeals.
It was not necessary to except to the judgment. By excepting to the ruling on the motion to direct the verdict, the proper exception having been preserved by the bill, we may consider the evidence for the purpose of determining whether the motion should or should not have been granted. And we are of the opinion that the motion should not have been granted and we must reverse the judgment for that reason.
The Safety Appliance Act was the tardy response of congress to the repeated requests of the president for action. Its purpose is to promote the safety of employees and travelers upon railroads, by compelling common carriers engaged in interstate commerce to equip their vehicles with certain safety appliances, and we shall assume that congress intended, in the exercise of its power, to regulate commerce among the states, to exercise its broadest power in respect to the subject of this enactment. If, therefore, the cars, or either of them, between which the son of the plaintiffs was crushed, belonged,
In Johnson v. Southern Pac., 196 U. S. 1, Chief Justice Fuller said:
‘ “Besides, whether cars are empty or loaded, the danger to employees is practically the same, and we. agree with the observation of District Judge Shiras in Voelher v. Chicago M. & St. P. B. Co., 116 Fed. Rep., p. 867, that ‘it cannot be true that on the eastern trip the provisions of the Act of Congress would be binding upon the company, because the cars were loaded, but would not be binding upon the return trip, because the cars are empty.’ ” Hence, it is not necessary, in actions of this character, to allege or prove that a car is actually loaded with interstate traffic. The law requires that it be
This car was sent to Salida to be used in conveying interstate or intrastate traffic, as the demands of the company required. It was not set apart as a car to be used in intrastate traffic solely, but it was held at Salida ready ready to carry articles to points outside the state, if required, and was so intended to be used whenever needed.
It was held in the case of U. S. v. St. Louis I. M. & S. R. Company, reported in 154 Fed., p. 516, that such a car is being used in interstate commerce, within the meaning of the act of congress. "When the car was once used in interstate traffic it became impressed with the character of a car used in moving interstate traffic and it so continued until the company took some action to change its character. The company owns an interstate highway. It is regularly engaged in moving traffic over this highway, and a car that has been used and that stands ready for use upon this highway whenever required, may well be said to be a car regularly used in moving interstate traffic. The trains of the company and all the vehicles thereof that travel this interstate highway on an interstate journey are required to be equipped with safety appliances and this, whether hauling freight or empty, or whether engaged in hauling articles destined to points within or without the state.
The car No. 6918, having been once used in actually moving interstate traffic, became impressed with that character, and as it was held in the company’s yards at Salida to be sent upon an interstate trip whenever required, and as the record does not show that the car was segregated from the class—
Counsel mainly rely upon the decision in the case of The Rio Grande Southern Railroad Company v. Campbell, reported in 44 Colo. 1, as supporting the ruling of the court in directing a verdict. The judgment in that case was reversed because of the error of the court in receiving evidence prejudicial to the defendant.
The facts in that case are not at all like those in this, and that case should not control this. The testimony showed that the company was operating a railroad lying wholly within the state, and that it “frequently received from, and delivered to, connecting lines passengers and freight which had come from, or were destined to, points without the state. ’ ’ There was no showing that any car in the train was loaded with interstate traffic, or that the cars or any of them ever had been so engaged, and we hold now that the bare statement that a road has frequently hauled interstate traffic is not sufficient in a case of this character to hold the company amenable to the federal statute. In that case it was said “before he would be entitled to recover by virtue of the provisions of the Act of Congress, *’ * * it was encumbent upon him to show that cars 1050 and 1925 were loaded with articles destined to some point outside the state.” But upon reflection, in view of the strong additional light thrown upon the decision by the recent federal decisions, we are constrained to overrule the case in so far as it may be construed as holding that a car, unless actually loaded with articles, destined to some point outside the state, is not under the control of congress. We therefore hold that the car No. 6918, was at the time of the
We find support for our judgment in the following casesr Johnson v. Southern Pac. R. Co., 196 U. S, 1; U. S. v. St. L. I. M. & S. R. Co., 154 Fed. 516; Belt Ry. Co. v. U. S., 168 Fed. 542; Voelher v. C. M. & St. P. Ry. Co., 116 Fed. 867; U. S. v. Southern Ry. Co., 164 Fed. 347; Wabash R. Co. v. U. S., 168 Fed. 1.
The judgment is therefore reversed and remanded for a new trial with leave to the parties to amend their pleadings as they may he advised.
Reversed and remanded.
Decision en banc.
Mr. Justice Campbell and Mr. Justice Gabbert dissent.
Dissenting Opinion
dissenting:
It will he observed from the foregoing opinion that the question for decision involves a construction of an act of congress. While the facts of this case are not the same as those in Rio Grande Southern Railroad Company v. Campbell, 44 Colo. 1, the same statute governs each case, the same rules of construction are to he applied, and, if the doctrine of that case is followed, this judgment must be affirmed. I do not understand that this court was laying down a general rule when it is supposed to have said in the Campbell case, cars must he actually loaded with articles destined from a point in one state to a point
Dissenting Opinion
dissenting:
I am unable to understand upon what tenable ground, when considered in connection with the facts, the decision of the court is based. It is stated that if the cars between which deceased was injured, or either of them, were within the control of congress at the time of the injury, then the direction of the trial court was error. This proposition is sound, but the facts show that neither of the cars was employed in interstate commerce when the injury occurred. It is said that hauling the flat car from Brazos, New Mexico, to Florence, Colorado, unequipped as the federal Safety Appliance Act requires, was a violation of that law, and it devolved upon the company to show that it was relieved of this duty. This proposition is unsound, because it requires the defendant to disprove a fact which it was necessary for the plaintiffs to prove, namely, that the cars between which deceased was injured, or one of them, was employed in interstate traffic at the time of his injury. A defendant is never required to disprove a case until one is made against him; but if we accept the proposition, then plaintiffs failed
It is said the car had not reached its destination; ■that its journey, was not ended; that the directions were to send it -to Salida. That is a statement not justified by the facts, or is so inadvertently' stated as •to be misleading. The car -was billed to- Florence. That was its destination. Betting it ready to transport to Salida was not in pursuance' of- any order made at the time it was billed to Florence, but in pursuance of a general order- to forward empty cars to Salida nnless otherwise specially ordered. Where it- would be sent after reaching Florence depended entirely upon the direction of the company after it reached that point. Its movements in these circumstances, under the general order, was as much -local as it would have been had a specific order been made to send it to Salida, or had an order been issued after it was unloaded to return it to Pueblo, or- forward it to .Canon City. Under the facts the quotation from the 196 U. S. has not the slightest application. The flat car was not being prepared to be returned' to Brazps, New Mexico. *’
It is .also said, in substance, that the -car was sent to Salida to be used imsuch traffic as the needs
- It is also stated, in substance, that the flat car, having once been used in interstate traffic, was impressed with the character of a car used in moving interstate commerce, and was continued until the
Next, it is said: “The Company owns an interstate highway; it is regularly engaged in moving traffic over this highway; and a car that has been used and stands ready fot use upon this highway whenever required may well be said to be a car regularly used in moving interstate traffic.” What about cars that stand ready for use in intrastate traffic? Is it not equally logical in such circumstances to say that its cars are regularly used in moving intrastate traffic? If this is the test, how can the two classes of cars be segregated? How can it be determined in case the question should arise with respect to whether the law of the. state, if we had one prescribing the equipment of cars, or the federal act on the subject should apply? It would be impossible under the proposition announced. The one test would be the character of use in which the car was employed at a specific time. Unless such act is the test, it would be impossible for the state to regulate the equipment of cars when employed in intrastate traffic, and it is only by such test that the applicability of the federal act can be determined.
Finally, it is said, after attempting to distinguish the Campbell case from the one at bar: “We now hold that the bare statement that a road has frequently hauled interstate traffic is not sufficient in a case of this character to hold the company amenable to the federal statute.” I agree with that holding,
I am unable to agree with the conclusion of the majority, and for the purpose of showing that it is wrong, will state the undisputed facts as disclosed by the record, from which it will appear that according to the first proposition of the majority opinion as above noticed, the judgment of the district court should be affirmed; and that the conclusion of the majority is based upon deductions of fact directly contrary to the real facts of the case. This, in con
The judgment of the district court should he affirmed for the,, reason that, from the facts when fully stated, it appears plaintiffs not only failed to show that either of the cars between which deceased was injured was employed in interstate traffic at the time of his injury, but it affirmatively appears that they were not.
Charles R. Felt, an unmarried son of Eugene S. and Fannie B. Felt, was employed by the D. & R. G. R. R. Co. in the capacity of brakeman. In the performance of his duties, he was fatally injured in attempting to couple cars, and the father and mother brought suit to recover damages. They based their right to a recovery- upon two counts — the first, upon the ground that the defendant company was an interstate road and engaged in hauling interstate traffic, and that the cars between which their son was injured, and which he was attempting to couple, were used in moving interstate traffic and were not equipped with automatic couplers as required by law. The purpose of the second count was to charge negligence on the part of the railroad company, at common law. A general demurrer to the second count was sustained. On- the issues made under the first count the parties went to trial before a jury. At the conclusion of the testimony on behalf of plaintiffs, the court, on the motion of the defendant, directed a verdict in its favor, which was rendered and judgment' entered accordingly. From this judgment the plaintiffs appealed to the court of appeals.
I shall only consider the error predicated upon
The precise question here presented, namely, whether or not under the facts, the defendant company was liable because the cars between which de
Since the opinion was rendered in the Campbell case the personnel of the court has changed to some extent, but the present chief justice took part in, and coincided with it, and now coincides in an opinion the effect of which, when the facts in the case at bar are fully considered, is to overrule it. Our opinions, if they are to carry any weight, or if they can be regarded by the bar of the state as reliable precedents, should not be vacillating. We should adhere to them unless convinced that they are wrong, or until a superior tribunal announces an opinion which demonstrates that we erred. The decision in the Campbell case was based upon a construction of an act of congress. The supreme court of the United States has rendered no decision which tends to show that we were mistaken in our construction of the act; on the contrary, its decisions, in principle, unequivocally uphold the construction we gave it, and we should not change our views until the supreme tribunal of the nation has spoken in such a way as to show that we erred in the construction given it.
The opinion in that case is also criticised because it was said that plaintiff was not entitled to recover unless he proved that the cars between which he was injured were.loaded with articles destined to some point outside the state. That was said, but the gist of the decision, the point upon which it turned, was, that it was incumbent on plaintiff to show that the cars between which he was injured were employed in interstate traffic, and as they were loaded, it was said, in strict accordance with the facts in that ease, that he must prove they were consigned to some point beyond the borders of the state. Unless, then, the fact that the defendant was an interstate road and that the flat car on one occasion had made and completed an interstate trip,-brings the case within the Safety Appliance Act, the Campbell case is conclu-sive, and the lower court was right in directing-a verdict for the defendant on this score.
It should be borne in mind that the federal constitution is but a grant of power; that congress cannot legislate upon any subject which it is not thereby authorized to regulate, and that the sole power of
It will be observed that it is not the character of the road with respect to its being interstate or intrastate, but the character of the car with respect to the traffic in which it is employed that is covered and mentioned in the act, and that it does not embrace a car which has been or may be used, but one then actually in use in interstate traffic. In other words, a common carrier by railroad is inhibited from hauling or using any car when employed in interstate
And so, in the case at bar, it is not material that the flat car had been employed in interstate traffic, but the crucial question is, were the cars between which deceased was injured, or either of them, so employed when he attempted to couple them? This question must unhesitatingly be answered in the negative. The box car, so far as the record discloses, had never been used in interstate traffic, but that is-of no particular moment. It was loaded at a point in this state and consigned to one in the state. The flat cár had been .employed in interstate traffic, but when it reached Florence, the place to which the lumber with which it was loaded was consigned, and was unloaded and placed upon a sidetrack, from thence to be taken and again used in moving such traffic as the officials of the company might direct, its employment in interstate traffic was ended. Thereafter the character of traffic in which it might be employed depended upon its use and ultimate desti
I therefore, conclude, that the act of congress
, In the 53 Atl. ease (Del.), the issue was whether the car and locomotive which plaintiff was attempting to couple when injured were equipped with automatic couplers, and were then employed in moving interstate traffic. The court held that the burden of proof was on the plaintiff to show that such car and locomotive were then employed in moving interstate ■ traffic, and were not equipped with couplers as required by the act of congress, and further held that if the car and locomotive were then employed in moving . local commerce only, the act did not apply. ■ These rulings were affirmed in 56 Atl. 112.
In the Rosney ■case it. was held that the federal Safety Appliance Act did not apply in an action for injuries to a fireman from collision in a railroad yard where there was no proof that'the engine and cars in collision were used in interstate commerce. Certainly, it cannot apply when, as in the case at bar, the undisputed proof is that neither of the ears between which.the deceased was killed, was a vehicle employed in interstate traffic,' but both were only, employed at the time of his injury in intrastate traffic. •
But I need.not take time to cite or' discuss the. decisions bearing on the questions involved by courts of inferior authority to the supreme court of the
A dining car was part of the regular equipment of a passenger train which the railroad company operated between San Francisco, California, and Ogden, Utah. Ordinarily, the dining car in trains running east was dropped at Ogden, at which point it was attached to the train of the defendant going west. The day the plaintiff, Johnson, was injured, the eastbound train was so late that it was not practicable to get the car into Ogden in time to attach it to the next westbound train, and it was left on a sidetrack at Promontory, west of Ogden, to be picked up by the westbound train when it arrived. While it was standing on the side track at Promontory the conductor of a freight train was directed to take it to a turn-table, turn it, and place it back upon the sidetrack, so it would be ready to return to San Francisco. The conductor instructed his crew to carry out this order. Johnson was the head brakeman, and undertook to couple the engine to the dining car. The.freight train and car were each equipped with automatic couplers, but being of different patterns, would not couple automatically with each other, and Johnson undertook to make the coupling
“It is by virtue of the power grantéd to congress to ‘regulate commerce among the states,’ and by virtue of that authority alone, that this statute was enacted, and has efficacy. Congress had neither the authority nor the purpose to interfere with or to touch by this Act anything except commerce among the states. * * * The power of Congress over this subject was limited to the regulation of commerce among the states. It intended to exercise that power, but not to transgress its bounds. It prohibited the hauling of cars used in moving interstate traffic, unless equipped as the Act directs. * * * But vacant cars which are not and may never be so. used, cannot be held to come within the fair import of the terms of this law, either because their owner intends to use them for that purpose, at some future time, or because they have been, or will be so used.”
These views were not held erroneous by the supreme court of the United States in reviewing the case. The difference between the latter and the circuit court of appeals was one of fact; that is to say, from the facts, the supreme court determined that the dining car at the time Johnson was injured was
“Confessedly, this dining car .was under the control of Congress while in the act .of .making...its interstate journey, and in our judgment it was equally so when waiting for the train to be made..up for the next trip. It was. being regularly .used in the movement of interstate, traffic, and. so- within, the law.” ’ ......
So it is apparent that the liability of the.Southern Pacific Company, for failure to have the can and locomotive equipped with antomatic couplers which would couple with each other by impact,- was Based entirely upon the ground that the dining car, -when Johnson undertook to couple, it'.to,, the engine, was then .employed, in interstate traffic, and not because it had been or migh|; b.e in the future, nor because-the defendant was an interstate railroad.
. .This.ruling necessarily and unquestionably sustains the conclusion that the act does not. extend to a car when employed in intrastate traffic only. .The case, however, which most clearly. defines the line beyond which congress may not go in legislating on the subject, of commerce between the. states, and demonstrates beyond.question that by. virtue of the., limitations imposed by the federal constitution, -it can exercise no authority whatever: over intrastate traffic, and hence establishes that the Safety ■ Appliance Act does not apply to traffic of that character, is the one entitled The Employers’ .Liability Gases, referred to in .the Campbell case, and .reported in 207 U. S. .463.. In these cases the court had under consideration the constitutionality .of the act of. congress of 1906 relating to the liability of common carriers engaged in .commerce between the states .for injuries sustained by their employees resulting from “the negligence of any of its officers,-agents or-em
It is important to observe that the' difference between the members of the court-arosei entirely over the construction of the-act, and that all'agreed congress conld not interfere with a ■ common cárrier when engaged in ifitrás'tate traffic. The' following excerpts from-the opinions'clearly show'that this was the unanimous opinion of the court, and' therefore, the Safety Appliance Act could-not be upheld,' to which one of the justices ■ calls' attention, except for the fact that' it' does 'not" extend to intrastate; traffic.' The important question-involved was,"whether or not the act embraced interstate and intrastate commerce. Speaking to this'point,‘Mr. Justice'White said (497):
“From the first -section it is-certain that the act extends to every individual' or corporation who may*276 engage in interstate commerce, as a common carrier. Its all-embracing words leave no room for any other conclusion. * * * From this it follows that the statute deals with all the concerns of the individuals or corporations to which it relates, if they engage as common carriers in trade, or commerce between the states, etc., and does not confine itself to the interstate commerce business which may be done by such persons. Stated in another form, the statute is addressed to the individuals or corporations who are engaged in interstate commerce, and is not confined solely to regulating the interstate commerce business which such persons may do — that is, it regulates the persons, because they engage in interstate commerce and does not alone regulate the business of interstate commerce. ’ ’
In discussing the' contention that because congress has the power to regulate interstate commerce it may exercise it over a common carrier engaged in interstate and intrastate traffic, for the reason that a carrier so engaged submits all his business concerns to the regulating power of congress, the learned justice said (502):
‘ ‘ To state the proposition 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 concerns. 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*277 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 which from the beginning, have been, and must continue to be, under their control, so long as the constitution endures.”
In speaking of the Safety Appliance Act, which it was urged was as broad and comprehensive in its terms as the Liability Act, it was said (503): “It is true that the Act, like the one we are considering, is addressed to every common carrier engaged in interstate commerce, but this direction is followed by provisions expressly limiting the scope and effect of the Act to interstate commerce, which are wholly superfluous if the arguments here made concerning the statute before us be sound.”
Mr. Justice Day concurred in the opinion. Mr. Justice Peckham concurred specially by stating the following (504):
-“I concur 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. As that is all that is necessary to decide in this case, I place my concurrence upon that part of the opinion which decides it.”
The chief justice and Mr. Justice Brewer concurred in this opinion.
Mr. Justice Moody dissented upon the ground that the act only embraced employees actually engaged in interstate commerce, and as I understand his opinion, held that the language of the act was no broader than that employed in the Safety Appliance Act, and if the Employers ’ Liability Act was unconstitutional because it embraced employees when engaged in intrastate .traffic, the Safety Appliance Act
“Applying the law under consideration to the conditions as they actually exist, it is said that its words are so general and sweeping as to comprehend within its benefits not only the employees of an interstate carrier engaged in the business of interstate carriage, but also the employees of the same carrier engaged in the business of intrastate carriage which it may, and usually does, conduct. * * * If such be the necessary interpretation of the statute, plainly it exceeds the power of Congress, for Congress certainly has no right to regulate the purely internal commerce of a state.”
Mr. Justice Harlan, with whom Mr. Justice Mc-Kenna concurred, also dissented. The following excerpt from his. opinion, however, demonstrates that these members of the .court fully concurred in the view that congress had no authority to regulate the internal affairs of the states (540):
“Mr. Justice McKenna and myself are of the opinion that it was within the power of Congress'to prescribe as between an interstate commerce carrier and its employees the rule of liability established by the Act of June 11th, 1906; but we do not concur in the -interpretation of that Act as given in the opinion delivered by Mr. Justice White, but think the Act reasonably and properly interpreted applies, and should be interpreted as intended by Congress to apply, only to cases of interstate commerce and to employees who, at the time of the particular wrong or injury complained of, are engaged in such commerce, and not to domestic commerce or commerce complete*279 ly internal to the state in which the wrong or injury occurred. ’ ’
Mr. Justice Holmes also dissented, but concurred in the view that congress had no authority to regulate intrastate commerce. He said (541):
“I must admit that I think there are strong reasons in favor of the interpretation of the statute adopted by the majority .of the court,, but as it is possible to read the words in such a way as to save the constitutionality of the Act, I think they should be taken in that narrower sense. ’ ’
Certainly, these clear and unequivocal statements made in a case involving directly the authority of congress to pass legislation affecting those engaged in intrastate commerce, not only demonstrates beyond the shadow of a doubt that the Safety Appliance Act only affects interstate commerce, as such, does not, and cannot extend to intrastate traffic, and unmistakably determines that congress has no more authority to subject a common carrier to liability for failure to observe a regulation intended to apply to all cars used on its road, both those used in interstate and those used in intrastate commerce, than it has to subject such carrier to liability to employees for the negligence of co-employees; but completely refutes as unsound and untenable the conclusion announced in the majority opinion, to the effect that because defendant was an interstate road, engaged in interstate traffic, and that the flat car had once been used in moving interstate traffic, it had that character indelibly stamped upon it, until the company set it apart for use in intrastate traffic only. From these excerpts it is clear that the test of the applicability of the act is, as previously stated, what, was the character of traffic the cars were employed in between which deceased was injured at the very time of his injury? . . . .
Of the many cases cited by counsel for appellants, I shall only refer to those cited in the majority opinion.
Wabash R. Co. v. United States, and Elgin, J. & E. Ry. Co. v. United States, 168 Fed. 1, were actions to recover penalties for violation of the Safety Appliance Act, as prescribed in sec. 6 of the act. With due deference to the learned court deciding these cases, which are disposed of in one opinion, I cannot agree with the conclusion that the act requires a common- carrier operating an interstate road to equip its cars when employed in intrastate traffic with automatic couplers. The decision is directly in conflict with the decision of the supreme court of the United States in the Employers’ Liability cases, for the reason that according to the principle upon which these cases were decided, congress has no more authority to control a railroad when engaged in intra
Finally, tbe opinion seems to be based, to some extent, at least, upon tbe theory that congress undertook, by tbe act in question, to regulate interstate roads. In this respect tbe purpose of tbe act and its scope are misconceived, because it does not undertake to prescribe tbe equipment of any railroad, but prohibits a common carrier from hauling or permitting to be hauled, or used on its line, any car “in interstate traffic” if not equipped as prescribed, thus confining tbe act to interstate commerce, which, under tbe constitution, is tbe only class of domestic commerce which it is empowered to regulate.
Judge Seaman dissented from tbe judgment upon tbe ground that congress bad no authority over intrastate traffic, and in my opinion, gave tbe true reason why tbe Safety Appliance Act does not affect intrastate traffic. He said (p. 11): “Tbe Wabash Company operating its lines for both classes of traffic —in tbe one instance an interstate movement and tbe other exclusively intrastate — must be governed
The decision in the case of the United States v. Southern Ry. Co., 164 Fed. 347, was by a single district judge, at nisi prius, on a demurrer to a complaint. It was an action to recover penalties for a violation of the Safety Appliance Act. One of the counts averred that the violation consisted in hauling a car loaded with coal from Birmingham, Ala., to Selma,' in the same state by an interstate road. The demurrer challenged this count because it appeared the car was only in use in intrastate traffic. It was overruled, and according to the syllabus, the court held that under the Safety Appliance Act, a failure to- provide ears with safety appliances required by the act,- is a violation thereof, when the trains are operated over any portion of an'.interstate road, even though that portion be from a point within a state to another point within the state, in circumstances from which it appears the traffic was purely local. It appears the judge reached this conclusion upon the ground that congress had authority to regulate the local traffic within a state of an interstate road by virtue of its police power. Without going into a discussion of the casé, it is evident that the trial judge did not understand, or inadvertently misapplied, the decisions of the supreme court of the United States, and overlooked the fundamental principle that the power of congress to regulate commerce among the states-only authorizes it to legislate on the subject or interstate commerce; that it can only exercise the
An authority of equal dignity to 164 Fed., and which directly refutes the holding of the district judge in that case is U. S. v. Erie R. Co., 166 Fed. 352, where the district judge used the following language :
“It seems to me, notwithstanding the views-expressed by Judge Hundley, in U. S. v. Southern Ry. Co., 164 Fed. 347, * * * that the principle on which the Employers’ Liability cases were settled (207 U. S. 463), is applicable here. Congress may regulate interstate, but not intrastate, commerce. It has no more authority to subject a common carrier to liability for failure to observé a regulation intended to apply to all cars used on its road, both those*284 used in interstate and those used in intrastate commerce, than it has to subject such carrier to liability for failure to observe a regulation intended to favor all employees on its road. The doctrine that ‘one who engages in interstate commerce thereby submits all his business concerns to the regulating power of Congress,’ is one, said Mr. Justice White, ‘that is refuted by the statement of it. ’ ”
In Voelker v. C., M. & St. P. Ry. Co., 116 Fed. 867, nothing is said, nor do the facts in that case support any conclusion announced by the majority, which have any pertinency to the questions involved in the case at bar. The same may be said of Belt Ry. Co. v. U. S., 168 Fed. 542. It was there decided that a local railroad, engaged in moving cars consigned to a point outside the state from one road to another, was engaged in interstate traffic. What was said in U. S. v. St. L., I. M. & S. R. Co., 154 Fed. 516, must be considered in connection with the facts. It was an action to recover a penalty for a violation of the Safety Appliance Act. The railroad company had violated the act by hauling empty cars not equipped with automatic couplers from one state to another. The cars had been taken to Memphis, Tennessee, from some point outside the state. They were inspected by a government inspector, who found that they were not lawfully equipped. At the time of inspection they were chained together, placed in a freight train destined to the state of Arkansas, were way-billed to a point in that state, and were thereafter transported to that point by the train of which they formed a part when the inspection was made. I cannot see how, under that state of facts, the statement in the opinion of the majority, to the effect that because the flat car was ready to be used for interstate traffic when required and was so intended
* If the conclusions of law announced by the majority in so far as they can be. said to be based upon the real facts in the case at bar, are sound, the Employers’ Liability Act should have been upheld by the supreme court of the United States upon the ground that when a railroad extends into two or more states, or when an intrastate road at times engages' in interstate traffic, the authority of congress is supreme, and the authority of the respective states over such roads relating to matters purely local, is completely ousted; and the line which the supreme court has so many times defined as the boundary beyond which congress cannot go in passing legislation affecting internal affairs of a state, is a myth. It is only upon these grounds, when the undisputed facts are considered, although in unmistakable language they have been declared untenable by the highest tribunal of the nation, that the majority opinion can be upheld.
