31 App. D.C. 466 | D.C. Cir. | 1908
delivered the opinion of the court:
2. The primary question is as to the validity of the said act, entitled: “An Act Relating to Liability of Common Carriers in the District of Columbia and Territories and Common Carriers engaged in Commerce between the States and between the States and Foreign Nations to Their Employees.” Section 1, which is the only one necessary to be recited, reads as follows:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 States, or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, shall be liable to any of its employees, or, in the case of his death, to his personal representative, for the benefit of his widow and children, if any, if none, then for his parents, if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employees, or by reason of any defect or insufficiency due to its negligence in its ears, engines, appliances, machinery, track, roadbed, ways, or works.” [34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1907, p. 891.]
The Supreme Court of the United States has recently held this act to be repugnant to the Constitution in so far as it extends to injuries received, in a State, by employees of a railway company engaged in interstate commerce. Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 52 L. ed. —, 28 Sup. Ct. Rep. 141. In the opinion of the court it was said by Mr. Justice White: “The act, then, being addressed to all common carriers engaged in interstate commerce, and imposing a liability upon them in favor of any of their employees, without qualification or restriction as to the business in which the carriers or their employees may be engaged at the time of*469 the injury, of necessity includes subjects wholly outside of the power of Congress to regulate commerce. * * * So far as the face of the statute is concerned, the argument is this, — that, becaugí'), the statute says carriers engaged in commerce between the States, etc., therefore, the act should be interpreted as being exclusively applicable to the. interstate-commerce business and none other of such carriers, and that the words ‘any employee/ as found in the statute, should be held to mean any employee when such employee is engaged only in interstate commerce. But this would require us to write into the statute words of limitation and restriction not found in it. But, if we could bring ourselves to modify the statute by writing in the words suggested, the result would be to restrict the operation of the act as to the District of Columbia and the Territories. We say this because immediately preceding the provision of the act concerning carriers engaged in commerce between the States and Territories is a clause making it applicable to ‘every common carrier engaged in trade or commerce in the District of Columbia or in any Territory of the United States.’ It follows, therefore, that common carriers in such Territories, even although not engaged in interstate commerce, are, by the act, made liable to ‘any’ of their employees, as therein defined. The legislative power of Congress over the District of Columbia and the Territories being plenary, and not depending upon the interstate-commerce clause, it results that the provision as to the District of Columbia and the Territories, if standing alone, would not be questioned. Thus it would come to pass, if we could bring ourselves to modify the statute by writing in the words suggested, — that is, by causing the act to read ‘any employee when engaged in interstate commerce/ — we would restrict the act as to the District of Columbia and the Territories, and thus destroy it in an important particular. To write into the act the qualifying words, therefore, would be but adding to its provisions in order to save it in one aspect, and thereby to destroy it in another; that is, to destroy in order to save and to save in order to destroy. The principles of construction invoked are undoubted, but are inapplicable. Of course, if it can be lawfully done, our. duty is*470 to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that, where a statute contains provisions which are constitutional and others which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save, the rule applies only where it is plain that Congress would have enacted the legislation with, the unconstitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated and reapplied in a recent case. Illinois C. R. Co. v. McKendree, 203 U. S. 514, 51 L. ed. 298, 27 Sup. Ct. Rep. 153, and authorities there cited.”
Necessarily all that was actually decided in that case was that, in so far as the act relates to carriers engaged in business in the States, it is repugnant to the Constitution in that it applies to all employees whether engaged or not in interstate commerce at the time of injury; and that it cannot be restricted, by construction, to employees engaged in interstate commerce alone, in order to save its constitutionality. We have inserted the lengthy extract from the opinion in that case not only to show the grounds on which the decision rests, but also because some of the language quoted is relied on by both parties in this case in support of their respective contentions. As said therein, the power of Congress in the District of Columbia is plenary, and extends to the regulation of all commerce of whatsoever nature that may be carried on within its boundaries; and the act expressly applies to all employees of common carriers in said District without regard to the character of the commerce engaged in. If, therefore, the operation of the act had been confined by its terms to the District of Columbia and the Territories, there could be no doubt of its constitutionality. This power cannot be exercised
Congress having undertaken to exercise plenary power in the one ac% as it has been interpreted, not only in the District of Columbia and the Territories, where it has been conferred, but also in the States, where it has not, the question for our determination is whether the provisions of the same, as they relate to the respective jurisdictions, are separable and not dependent upon each other, so that one may stand notwithstanding the invalidity of the other. The rule in this regard is well settled, as we have seen; the difficulty lies in its application.
This condition of severableness of the provisions of a statute, that may preserve the validity of one notwithstanding the repugnance of the other to the Constitution, is not dependent upon the fact that they may be found in separate sections, though this would ordinarily render the task of separation easier. It is.sufficient if the separation can be accomplished by exercising a clause of the same section, and leaving the remainder complete and unchanged in meaning without reading into it another word. Penniman s Case (Vial v. Penniman) 103 U. S. 714, 717, 26 L. ed. 602, 604; Diamond Glue Co. v. United States Glue Co. 187 U. S. 611, 617, 47 L. ed. 328, 333, 23 Sup. Ct. Rep. 206; Florida C. R. Co. v. Schutte, 103 U. S. 118, 142, 26 L. ed. 327, 335.
We think it is evident from the language of the title and the first clauses of sec. 1 of the act that, in its enactment, Congress contemplated the exercise of its plenary power in the District of Columbia and the Territories, and of only its limited power in the States. This general intention, as regards the latter, was thwarted by the use of language, appropriate to the exercise of its plenary power, but not to the exercise of its limited power, making the common carrier, who might also be engaged in interstate commerce, liable to “any of its employees,” without discrimination in respect of the character of the business in the conduct of which the injury might occur. We do not think, however, that the purpose to make the new rule of law, defining the relations of master and servant, apply to “every common
3. The provisions of the section being deemed severable, the next question is, whether it is plain that Congress would have enacted the act with the unconstitutional provision eliminated? We see no reason to doubt that it would have done so. One of the special duties of Congress is to legislate generally for the benefit of the inhabitants of the District of Columbia and the Territories. That duty in respect of the adequate protection of the employees of common carriers engaged in trade or com
4. The amount of damages to be recovered in cases arising under the act is not limited.in amount, and those alleged in the four counts of the declaration, to which the demurrer was sustained, amount to $20,000. It remains, therefore, to consider whether the amount of the recovery is limited by the operation of sec. 1301, D. C. Code [31 Stat. at L. 1394, chap. 854]. That section confers the right of action for all injuries done or happening within the limits of the District of Columbia, resulting in death, when caused by the wrongful act, neglect, or default of any person or corporation, when, if death had not ensued, the party injured would have been entitled to an action. “Such damages shall be assessed with reference to the injury resulting from such act, neglect, or default causing such death, to the widow and next of kin of such deceased person: Provided, That in no case shall the recovery under this act exceed the sum of $10,000.” Section 1302 requires the action to be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured. Section 1303 provides that the damages recovered shall not be
We do not think the question raised on the operativeness of these two statutes is whether the elder is repealed by the later, which it certainly is not, but whether the later is to be governed by the terms of the elder in respect of the limitation of the amount of damages that may be recovered.
The objects of the two are different. The first remedies a defect in the common law by conferring a right of action in all cases of injuries resulting in death, when, had the injured party survived, he would be entitled to an action, and in no other. The second changes the common law in relation to master and
Notwithstanding the invidious distinction made between the beneficiaries of the separate, statutes in respect of the amount of the recovery, we see no reason why they may not stand together and operate according to their terms in cases coming under them respectively. In conferring a right of action where none existed at common law, Congress can couple the grant with any condition it may deem reasonable in the particular case, and is not bound to affix the same condition to all similar grants. Instead of intending to bring the parties to actions created by the act under the operation of sec. 1301 of the Code, we think that the intention was to give it operation according to its terms. It makes complete provision for all of its purposes, and leaves nothing to be supplied by the provisions of the Code. Each is’to be construed, therefore, as applying to cases arising under it, and to none other.
For the reasons given, we think it was error to sustain the demurrer, and the order will, therefore, be reversed with costs, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.
