U.S. Supreme Court

HOWARD v. ILLINOIS CENT. R. CO., 207 U.S. 463 (1908)

207 U.S. 463

DAMSELLE HOWARD, Administratrix of Will Howard, Deceased, Plff. in Err.,v.

ILLINOIS CENTRAL RAILROAD COMPANY and Yazoo & Mississippi Valley Railroad Company.

No. 216.

N. C. BROOKS, Administratrix of Morris S. Brooks, Deceased, Plff. in Err.,

V.

SOUTHERN PACIFIC COMPANY.

No. 222.

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

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

Messrs. Jesse E. Torrance, S. C. Bloss, George

Durelle, and W. M. Smith for plaintiff in error in No. 222.

Messrs. J. M. Dickinson, Blewett Lee, and Charles N. Burch for defendants in error in No. 216.

Messrs. Alexander Pope Humphrey, R. S. Lovett, and Maxwell Evarts for defendant fendant in error in No. 222.

Attorney General Bonaparte and Mr. William R. Harr for the United States.

Mr. Justice White delivered the opinion of the court:

To dispose of these cases it is necessary to decide a fundamental question which is equally decisive as to both. They were argued at the bar together, and because of their unity have been considered at the same time.

As stated in the declarations as flnally amended, recovery was sought in each case of damages occasioned by the death of the respective intestates while serving as a fireman on a locomotive actually engaged in moving an interstate commerce train. In each of the cases it was alleged that the intestate met his death through no fault of his, but solely through the fault of employees of the company, who were his fellow servants. In both the right of action was expressly based upon the act of Congress of June 11, 1906, 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.' [34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1907, p. 891.] By demurrer in each of the cases the act relied upon was assailed as being repugnant to the Constitution of

the United States. In both cases the Department of Justice, on behalf of the United States, asked to be allowed to intervene for the purpose of supporting the constitutionality of the act. In the first (the Howard) case this request was granted. In the second (the Brooks) case the court, while denying the request upon the ground that it knew of no law authorizing such an intervention simply because the validity of an act of Congress was drawn in question, nevertheless permitted the United States to be heard as a friend of the court. In both cases the act was held to be unconstitutional, the demurrer was sustained, and the declarations dismissed These direct writs of error were then prosecuted, and at bar the cases have been argued, by printed brief and orally, not only by the parties in interest, but on behalf of the United States through the Attorney General as a friend of the court.

As the issue to be decided is whether the courts below were right in holding that the act of Congress, which was the basis of the respective causes of action, was repugnant to the Constitution of the United States, we reproduce the text of that act in the margin. [^{Footnote 1} ]

Before coming to consider the contentions concerning the constitutionality of the act, we notice certain suggestions which proceed upon the assumption that they may concern the issue for decision. It is said that the statute inordinately extends the power of Congress and unduly diminishes the legislative authority of the states, since it seeks to exert the power of Congress as to the relation of master and servant,-a subject hitherto treated as being exclusively within the control of the states; and that in practice its execution will cripple the state and enlarge the Federal judicial power, since its effect will be to cause every action concerning an injury to a servant employed by a common carrier who may engage in interstate commerce to cease to be a matter of atate jurisdiction, and to be cognizable in the Federal Courts. Moreover, it is said, the statute will create confusion and uncertainty as to the rights of those dwelling within the states, that it will operate injuriously upon all who choose to engage in interstate commerce

as a common carrier, since those who so do will become subject to the liability which the statute creates, to be tested by the rules of negligence which the statute embodies, although such rules be unknown to the laws of the several states. Besides, the statute, it is urged, discriminates against all who engage as common carriers in interstate commerce, since it makes them responsible without limit as to the amount to one servant for an injury suffered by the acts of a coservant, even in a case where the negligence of the injured servant has contributed to the result, hence placing all employers who are common carriers in a disfavored, and all their employees in a favored, class. Indeed, it is insisted the statute proceeds upon contradictory principles, since it imposes the increased responsibility just stated upon the master, presumably in order to make him more careful in the selection of his servants, and yet minimizes the necessity for care on the part of the servant by allowing recovery, although he may have been negligent.

But without, even, for the sake of argument, conceding the correctness of these suggestions, we at once dismiss them from consideration as concerning merely the expediency of the act, and not the power of Congress to enact it. We say this since, in testing the constitutionality of the act, we must confine ourselves to the power to pass it, and may not consider evils which it is supposed will arise from the execution of the law, whether they be real or imaginary.

'We are now arrived at the inquiry, What is this power? All the questions which arise concern the nature and extent of the power of Congress to regulate commerce. That subject has been so often here considered and has been so fully elaborated in recent decisions, two of which are noted in the margin,2 that we content ourselves, for the purposes of this case, with repeating the broad definition of the commerce power as expounded by Mr. chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. ed. 23, 70, where he said:

It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution . . . . If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.'

'It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient and is certainly unnecessary. Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one. . . . The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government.' Accepting, as we now do and as has always been done, this comprehensive statement of the power of Congress, we also adopt and reiterate the perspicuous statement made in the same case (p. 194), of those matters of state control which are not embraced in the grant of authority to Congress to regulate commerce:

We think the orderly discussion of the question may best be met by disposing of the affirmative propositions relied on to extablish that the statute conflicts with the Constitution.

In the first place, it is asserted that there is a total want of power in Congress in any conceivable aspect to regulate the subject with which the act deals. In the second place, it is insisted the act is void, even although it be conceded, for the sake of argument, that some phases of the subject with which it is concerned may be within the power of Congress, because the act is confined not to such phases, but asserts control over many things not in any event within the power to regulate commerce.

While it may be, if we indulged, for the sake of argument, in the hypothesis of limited power upon which the second proposition rests, it would result that a consideration of the first proposition would be unnecessary because the act would be found to be repugnant to the Constitution, because embracing provisions beyond such assumed and restricted authority, we do not think we are at liberty to avoid deciding whether, in any possible aspect, the subject to which the act relates is within the power of Congress. We say this, for if it be that, from the nature of the subject, no power whatever over the same can, under any conceivable circumstances, be possessed by Congress, we ought to so declare, and not, by an attempt to conceive the inconceivable, assume the existence of some authority, thus, it may be, misleading Congress and giving rise to future contention.

1.

The proposition that there is an absolute want of power in Congress to enact the statute is based on the assumption that, as the statute is solely addressed to the regulation of the relations of the employer to those whom he employs, and the relation of those employed by him among themselves, it deals with subjects which cannot, under any circumstances, come within the power conferred upon Congress to regulate commerce.

As it is patent that the act does regulate the relation of master and servant in the cases to which it applies, it must follow that the act is beyond the authority of Congress if the proposition just stated be well founded. But we may not

test the power of Congress to regulate commerce, solely by abstractly considering the particular subject to which a regulation relates, irrespective of whether the regulation in question is one of interstate commerce. On the contrary, the test of power is not merely the matter regulated, but whether the regulation is directly one of interstate commerce, or is embraced within the grant conferred on Congress to use all lawful means necessary and appropriate to the execution of the power to regulate commerce. We think the unsoundness of the contention that, because the act regulates the relation of master and servant, it is unconstitutional, because, under no circumstances, and to no extent, can the regulation of such subject be within the grant of authority to regulate commerce, is demonstrable. We say this because 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 uegulation 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 the power and then to deny it; or, at all events, to recognize the power and yet to render it incomplete.

Because of the reasons just stated we might well pass from the consideration of the subject. We add, however, that we

think the error of the proposition is shown by previous decisions of this court. Thus, the want of power in a state to interfere with an interstate commerce train, if thereby a direct burden is imposed upon interstate commerce, is settled beyond question. Mississippi R. Commission v. Illinois C. R. Co.  203 U.S. 335, 343 , 51 S. L. ed. 209, 214, 27 Sup. Ct. Rep. 90, and cases cited; Atlantic Coast Line R. Co. v. Wharton,  207 U.S. 328 , ante, 121, 28 Sup. Ct. Rep. 121. And decisions cited in the margin,3 holding that state statutes which regulated the relation of master and servant were applicable to those actually engaged in an operation of interstate commerce, because the state power existed until Congress acted, by necessary implication refute the contention that a regulation of the subject, confined to interstate commerce, when adopted by Congress, would be necessarily void because the regulation of the relation of master and servant was, however intimately connected iwth interstate commerce, beyond the power of Congress. And a like conclusion also persuasively results from previous rulings of this court concerning the act of Congress known as the safety appliance act. Johnson v. Southern P. Co.  196 U.S. 1 , 49 L. ed. 363, 25 Sup. Ct. Rep. 158; Schlemmer v. Buffalo, R. & P. R. Co.  205 U.S. 1 , 51 L. ed. 681, 27 Sup. Ct. Rep. 407.

2.

But it is argued, even though it be conceded that the power of Congress may be exercised as to the relation of master and servant in matters of interstate commerce, that power cannot be lawfully extended so as to include the regulation of the relation of master and servant, or of servants among themselves, as to things which are not interstate commerce. From this it is insisted the repugnancy of the act to the Constitution is clearly shown, as the face of the act makes it certain that the power which it asserts extends not only to the relation of master and servant and servants among themselves as to things which are wholly interstate commerce, but em-

braces those relations as to matters and things domestic in their character, and which do not come within the authority of Congress. To test this proposition requires us to consider the text of the act.

From the 1st section it is certain that the act extends to every individual or corporation who may engage in interstate commerce as a common carrier. Its all-embracing words leave no room for any other conclusion. It may include, for example, steam railroads, telegraph lines, telephone lines, the express business, vessels of every kind, whether steam or sail, ferries, bridges, wagon lines, carriages, trolley lines, etc. Now, the rule which the statute establishes for the purpose of determining whether all the subjects to which it relates are to be controlled by its provisions is that anyone who conducts such business be a '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,' etc. That is, the subjects stated all come within the statute when the individual or corporation is a common carrier who engages in trade or commerce between the states, etc. 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.

And the conclusion thus stated, which flows from the text of the act concerning the individuals or corporations to which it is made to apply, is further demonstrated by a consideration of the text of the statute defining the servants to whom it relates.

Thus, the liability of a common carrier is declared to be in favor of 'any of its employees.' As the word 'any' is unqualified, it follows that liability to the servant is coextensive with the business done by the employers whom the statute embraces; that is, it is in favor of any of the employees of all carriers who engage in interstate commerce. This also is the rule as to the one who otherwise would be a fellow servant, by whose negligence the injury or death may have been occasioned, since it is provided that the right to recover on the part of any servant will exist, although the injury for which the carrier is to be held resulted from 'the negligence of any of its officers, agents, or employees.'

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 the injury, of necessity includes subjects wholly outside of the power of Congress to regulate commerce. Without stopping to consider the numerous instances where, although a common carrier is engaged in interstate commerce, such carrier may, in the nature of things, also transact business not interstate commerce, although such local business may indirectly be related to interstate commerce, a few illustrations showing the operation of the statute as to matters wholly independent of interstate commerce will serve to make clear the extent of the power which is exerted by the statute. Take a railroad engaged in interstate commerce, having a purely local branch operated wholly within a state. Take again the same road having shops for repairs, and, it may be, for construction work, as well as a large accounting and clerical force, and having, it may be, storage elevators and warehouses, not to suggest, besides, the possibility of its being engaged in other independent enterprises. Take a telegraph company engaged in the transmission of interstate and local messages. Take an express company engaged in local as well as in interstate business. Take a trolley line

moving wholly within a state as to a large part of its business, and yet, as to the remainder, crossing the state line.

As the act thus includes many subjects wholly beyond the power to regulate commerce, and depends for its sanction upon that authority, it results that the act is repugnant to the Constitution, and cannot be enforced unless there be merit in the propositions advanced to show that the statute may be saved.

'It is the carrier, and not its employees, that the act seeks to regulate, and the carrier is subject to such regulations because it is engaged in interstate commerce. On the one hand, while conceding that the act deals with all common carriers who are engaged in interstate commerce because they so engage, and indeed, while moreover conceding that the act was originally drawn for the purpose of reaching all the employees of railroads engaged in interstate commerce to which it is said the act in its original form alone related, it is yet insisted that the act is within the power of Congress, because one who engages in interstate commerce thereby comes under the power of Congress as to all his business, and may not complain of any regulation which Congress may choose to adopt. These contentions are thus summed up in the brief filed on behalf of the government:

'By engaging in interstate commerce the carrier chooses to subject itself and its business to the control of Congress, and cannot be heard to complain of such regulations.

'. . . It is submitted that Congress can make a common carrier engaged in interstate commerce liable to anyone for its negligence who is affected by it; and if it can do that, necessarily it can make such carrier liable to all of its employees.' ... * *

On the other hand, the same brief insists that these propositions are irrelevant, because the statute may be interpreted so as to confine its operation wholly to interstate commerce, or to means appropriate to the regulation of that subject, and hence relieves from the necessity of deciding whether, if the statute could not be so construed, it would be constitutional.

In the oral discussion at bar this latter view was earnestly insisted upon by the Attorney General. Assuming, as we do, that the propositions are intended to be alternative, we disregard the order in which they are pressed in argument, and therefore pass for a moment the consideration of the proposition that the statute is constitutional though it includes all the subjects which we have found it to embrace, in order to weigh the contention that it is susceptible on its face of a different meaning from that which we have given it, or that such result can be accomplished by the application of the rules of interpretation which are relied upon.

So far as the face of the statute is concerned, the argument is this: That because 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, could not be ques-

tioned. 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 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.

As the act before us, by its terms, relates to every common carrier engaged in interstate commerce, and to any of the employees of every such carrier, thereby regulating every relation of a carrier engaged in interstate commerce with its servants and of such servants among themselves, we are unable to say that the statute would have been enacted had its provisions

'If we should, in the case before us, undertake to make, by judicial construction, a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do, namely, make a trademark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances under the act of Congress, and in others under state law. Cooley, Const. Lim. 178, 179; Com. v. Hitchings, 5 Gray, 482.' been restricted to the limited relations of that character which it was within the power of Congress to regulate. On this subject the opinion in the Trade-Mark Cases,  100 U.S. 82 , 25 L. ed. 550, where an act of Congress concerning trademarks was held to be unconstitutional, because too broad in its scope, is pertinent and instructive. The court said (p. 99):

3.

It remains only to consider the contention which we have previously quoted, that the act is constitutional although it embraces subjects not within the power of Congress to regulate commerce, because one who engages in interstate commerce thereby submits all his business concerns to the regulating power of Congress. 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 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 which, from the beginning,

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

4.

Reference was made to the report of a committee submitted to the House of Representatives on the coming in of the bill which finally became the act in question. We content ourselves on this subject with saying that that report, we think, instead of adding force to the argument that the plain terms of the act should be disregarded, tends to the contrary. And the same observation is appropriate to the reference made to the text of the safety appliance act of March 2, 1893 [27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174], which, it is insisted, furnishes a guide which, if followed, would enable us to disregard the text of the act. We say this because the face of that act clearly refutes the argument based upon it. 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 argument here made concerning the statute before us be sound.

We deem it unnecessary to pass upon the merits of the contentions concerning the alleged repugnancy of the statute, if regarded as otherwise valid, to the due process clause of the 5th Amendment to the Constitution, because the act classifies together all common carriers. Although we deem it unnecessary to consider that subject, it must not be implied that we question the correctness of previous decisions noted in the margin,4 wherein state statutes were held not to be repugnant to the 14th Amendment, although they classified steam railroads in one class for the purpose of applying a rule of master and servant. We further deem it unnecessary to express an opinion concerning the alleged repugnancy of the statute to the 7th Amendment, because of the provision of the act as to the power of the jury. In saying this, however, we must not be considered as intimating that we think

the provision in question is susceptible of the construction placed on it in argument, or that, if it could be so construed, it would be constitutional.

Concluding, as we do, that the statute, whilst it embraces subjects within the authority of Congrss to regulate commerce, also includes subjects not within its constitutional power, and that the two are so interblended in the statute that they are incapable of separation, we are of the opinion that the courts below rightly held the statute to be repugnant to the Constitution and nonenforceable; and the judgments below are, therefore, affirmed.

Mr. Justice Day concurs in this opinion.

Mr. Justice Peckham, concurring:

I concur in the result of the foregoing opinion, but I am not prepard to agree with all that is stated as to the power of Congress to legislate upon the subject of the relations between master and servant.

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 it is necessary to decide in this case, I place my concurrence upon that part of the opinion which decides it.

I am authorized to state that the CHIEF JUSTICE and Mr. Justice Brewer agree in this view.

Mr. Justice Moody, dissenting:

I am unable to agree in the judgment of the court. Under ordinary circumstances, where the judgment rests exclusively, as it does here, upon a mere interpretation of the words of a law, which may be readily changed by the lawmaking branches of the government, if they be so minded, a difference of opin-

ion may well be left without expression. But where the judgment is a judicial condemnation of an act of a coordinate branch of our government, it is so grave a step that no member of the court can escape his own responsibility, or be justified in suppressing his own views, if unhappily they have not found expression in those of his associates. Moved by this consideration, and solicitous to maintain what seems to me the lawful powers of the nation, I have no doubt of my duty to disclose fully the opinions which, to my regret, differ in some respects from those of some of my brethren.

The only question which these cases present is the constitutionality of the employers' liability act, which, briefly stated, provides a remedy for the injury or death of the employees of territorial, interstate, and foreign common carriers, caused by the negligence of the carrier. The defendants were both interstate carriers, and these actions were brought to recover for the deaths of their employees who, at the time, were engaged in interstate transportation. The judgment of the court does not deny that it is within the power of the Congress to provide a remedy for the injury or death of employees engaged in the conduct of territorial, interstate, and foreign commerce. It rests upon the ground that this statute is unconstitutional because it seeks to do more than that, and regulates the liability of employers while engaged in intrastate commerce or in manufacture. At the threshold I may say that I agree that the Congress has not the power directly to regulate the purely internal commerce of the states, and that I understand that to be the opinion of every member of the court.

The constitutionality of the act was attacked in the arguments before us upon three grounds: First, because it seeks to control by provisions so inseparable that they are incapable of resolution into their several parts, not only the territorial, foreign, and interstate business of carriers, but also their intrastate business, which, by the Constitution, is reserved for the government of the states. Second, because, if the act should

be interpreted as not intruding upon the domain of the states by directly regulating commerce exclusively within the states, yet, that legislation fixing the obligation of employers engaged in interstate and foreign commerce to their employees in such commerce, for injuries suffered by the latter in the course of the employment, is not the regulation of commerce, and, therefore, is not within any power conferred by the Constitution upon Congress. Third, because, even if the act is concerned with a subject which is within the power of Congress, yet the specific changes made by it in the common-law rules governing the relations of employer and employee exceed the legislative power or violate the constitutional prohibitions which restrict that power.

I am of opinion that the act is not open to any of the constitutional objections urged against it, and shall consider all of the objections in the order in which I have stated them.

In the consideration of the scope of the statute for the purpose of determining whether it seeks to control that part of commerce which is beyond the power of Congress and subject only to the government of the states, it is to be observed that the opening words of Congress are in recognition of the limitation of its authority and of the constitutional distinction between commerce among the states and with foreign nations on the one hand and commerce within the states on the other hand. The commands of the law are addressed only to 'common carriers engaged in trade and commerce' in the territories, with foreign nations, and among the states, and with respect to carriers engaged in commerce within the states the laws is impressively silent. The expression and enumeration of the parts of commerce which are clearly within the control of Congress is equivalent to an exclusion of the part which is not within its control. In the careful selection of the language of this law the legislators may well have in mind the words of Chief Justice Marshall which have received the constant approval of this court. He said (in Gibbons v. Ogden, 9 Wheat. 194, 195, 6 L. ed. 69, 70):

'It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient, and is certainly unnecessary.

'Comprehensive as the word 'among' is, it may very properly be restricted to that commerce thich concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language, or the subject of the sentence, must be the exclusively internal commerce of a state. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved to the state itself.' 'The subject to which the power is next applied is to commerce 'among the several states.' . . . Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior.

These words of the Chief Justice have been regarded as delimiting accurately the constitutional boundaries of the respective powers over commerce of the nation and the states. They have been frequently repeated, and, though differences have arisen in their application to the complicated affairs of mankind, never doubted, and universally approved. It is not

easy to believe that Congress intended to dispute their authority. The reasoning which was thought worthy for the interpretation of the Constitution will not be misapplied if it be employed in the interpretation of a law passed in pursuance of the powers conferred by the Constitution. Why should it not be said of the law as it was said of the Constitution, that 'the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language, . . . must be the exclusively internal commerce of the state.' From the enumeration of territorial, interstate, and foreign commerce, and the omission of the internal commerce of the state, is it not clear that the commerce which is exclusively internal to the state, and does not affect any other character of commerce, was intended to be outside the purview of the law? Does not a proper respect for the acts of Congress and the strong presumption that it will not exceed its powers, so frequently declared by this court, require us to believe that, when the kinds of commerce within its undoubted control are carefully enumerated, all the words of the law, however general, are to be referred solely to that commerce and no other?

If carriers were separated by a clear line of division, so that one class were engaged exclusively in interstate and foreign commerce, and the other class were engaged exclusively in commerce within the states, it would not, of course, occur to any mind that this act had any reference whatever to the state carriers. But there is no such hard and fast line of division. Carriers often, and, where they are railroads, usually are, as a matter of fact, engaged both in interstate and foreign commerce, over which Congress has the control, and intrastate commerce, over which the states have the control. 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 the 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. Counsel illustrated their argument by suggesting that if a carrier doing an interstate business on the Pacific slope also conducted a local trolley line wholly along the Atlantic seaboard within a single state, an employee on the local trolley line would, by the terms of this act, be entitled to its benefits. If such be the necessary interpretation of the statute, plainly it exceeds the power of Congress, for Congress certainly has no right to tegulate the purely internal commerce of a state. Nor can the statute be saved by rejecting that part of it which is unconstitutional, because its provisions are single and incapable of separation. The vicious part, if such exist, is so intermingled with that which is good that it cannot be eliminated without destroying the whole structure.

Which interpretation, then, should be adopted? That which regards the law as prescribing the liability of the carrier only to those employees who are engaged in the work of interstate and foreign commerce, or that which extends the benefits of the law also to those employees engaged in work which has no relation whatever to such commerce? In answering this question it must not be forgotten that, if the latter interpretation be adopted, in the opinion of the whole court the act is beyond the constitutional power of Congress. That is a consideration of vast importance, because the court has never exercised the mighty power of declaring the acts of a co-ordinate branch of the government void except where there is no possible and sensible construction of the act which is consistent with the fundamental organic law. The presumption that other branches of the government will restrain themselves within the scope of their authority, and the respect which is due to them and their acts, admits of no other attitude from this court. This is more than a canon of interpretation, it is a rule of conduct resting upon considerations of public

policy, and, in the exercise of the delicate function of condemning the acts of coordinate and equal branches of the government, under the same obligation to respect the Constitution as ourselves, has been observed from the beginning. I regard the rule as so vital and fundamental in this and all other parts of the case that I select almost at random some expressions of it by different justices of this court. When the power to declare an act of Congress void was still undecided, Mr. Justice Chase said in Hylton v. United States, 3 Dall. 171, 1 L. ed. 556, p. 175: 'If the court have such power, I am free to declare that I will never exercise it, but in a very clear case.' Mr. Justice Strong said in Legal Tender Cases, 12 Wall. 457, 20 L. ed. 287, p. 531: 'It is incumbent, therefore, upon those who affirm the unconstitutionality of an act of Congress, to show clearly that it is in violation of the provision of the Constitution. It is not sufficient for them that they succeed in raising a doubt.' In Trade-Mark Cases,  100 U.S. 82 , 25 L. ed. 550, Mr. Justice Miller said, p. 96: 'When this court is called on, in the course of the administration of the law, to consider whether an act of Congress, or any other department of the government, is within the constitutional authority of that department, a due respect for a co-ordinate branch of the government requires that we shall decide that it has transcended its powers only when that is so plain that we cannot avoid the duty.' In Nicol v. Ames,  173 U.S. 509 , 43 L. ed. 786, 19 Sup. Ct. Rep. 522, Mr. Justice Peckham said, p. 514: 'It is always an exceedingly grave and delicate duty to decide upon the constitutionality of an act of the Congress of the United States. The presumption, as has frequently been said, is in favor of the validity of the act, and it is only when the question is free from any reasonable doubt that the court should hold an act of the lawmaking power of the nation to be in violation of that fundamental instrument upon which all the powers of the government rest.' Mr. Justice White in Buttfield v. Stranahan,  192 U.S. 470 , 48 L. ed. 525, 24 Sup. Ct. Rep. 349, said, p. 492: 'In examining the statute in order to determine its constitutionality, we must be guided by the well-settled rule that every intendment is in favor of its validity.

It must be presumed to be constitutional unless its repugnancy to the Constitution clearly appears.' Mr. Chief Justice Waite in Sinking Fund Cases,  99 U.S. 700 , 25 L. ed. 496, said, p. 718: 'It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States; but this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safeth of our institutions depends in no small degree on a strict observance of this salutary rule.' Mr. Justice Story, in United States v. Coombs, 12 Pet. 72, 9 L. ed. 1004, said, page 76: 'If the section admits of two interpretations, one of which brings it within and the other presses it beyond the constitutional authority of Congress, it will become our duty to adopt the former construction; because a presumption never ought to be indulged that Congress meant to exercise or usurp any unconstitutional authority, unless that conclusion is forced upon the court by language altogether unambiguous.'

Citations of this character might be multiplied, but to no good purpose. There is no doubt that the rule exists, there is no doubt that it is wise, and promotes the mutual respect between the different branches of the government which is so essential to the welfare of all, and that it requires us, if it is within our power, to give to the words of the statute before us a meaning which will confine its provisions to subjects within the control of Congress. If two interpretations are possible our plain duty is to adopt that which sustains the statute as a lawful exercise of authority, and not that which condemns it as a usurpation.

The argument which supports a construction of the statute which would include within its provisions intrastate commerce is readily stated. It is said that 'every common carrier' engaged in territorial, foreign, or interstate trade, is made

'liable to any of its employees . . . for all damages which may result from the negligence of any of its officers, agents, or employees, or by reason of any defect' in its instrumentalities, and that, as there is no qualification of or exception to the generality of the language descriptive of the employees or instrumentalities, it must be deemed to include those engaged and used solely in intrastate commerce, and even in manufacture, as well as those engaged and used in other commerce. But I venture to think that this argument rests upon too narrow ground. It contemplates merely the words of the statute; it shuts out the light which the Constitution sheds upon them; it overlooks the significance of the enumeration of the kinds of commerce clearly within the national control and the omission of the commerce beyond that control,-an enumeration and omission which characterizes, colors, and restrains every word of the statute,-and it neglects the presumptions in favor of the validity of the law and of the obedience of Congress to the commands of the Constitution, which cannot with propriety be disregarded by this court. Taking into account these missing aids to construction, it becomes quite easy, quite reasonable, and, in my opinion, quite necessary, to construe the act as conferring its benefits only upon employees engaged in some fashion in the commerce which is enumerated in it and is undoubtedly under the control of Congress. Even without these guides for discovering the intent of Congress, which the uniform practice of the court compels us to use, it is natural to suppose that, when territorial, interstate, and foreign carriers only are mentioned and every such carrier is declared to be liable 'to any of its employees,' only its employees in such commerce are intended. With those guides the conclusion appears to me irresistible, for they show that if the words, 'any of its employees,' in the context where they are used, are capable of meaning all of the employees upon any kind of work, yet their generality should be restrained so as to include only those who are subject to the power of the lawmaking body. The case of McCullough v. Virginia, 172

U. S. 102, 43 L. ed. 382, 19 Sup. Ct. Rep. 134, is precisely in point here. An act of the general assembly of the state of Virginia provided for refunding the state debt by the issue of coupon bonds for two thirds of the total amount of that debt. It was enacted that the coupons should 'be receivable at and after maturity for all taxes, debts, dues, and demands due the state.' There was at the time of the passage of the refunding act a provision of the Constitution of Virginia requiring all school taxes to be paid in cash, and it had been held by this court that the constitutional provision disabled the Virginia legislature from providing that the coupons should be receivable for such taxes. McGahey v. Virginia,  135 U.S. 662 , 34 L. ed. 304, 10 Sup. Ct. Rep. 972. The argument was then made that as the statute providing for the receivability of the coupons for 'all taxes, debts, dues, and demands on the state' was in part beyond the constitutional power of the legislature, the contract evidenced by that statute was entirely void. The court, speaking by Mr. Justice Brewer, answered this argument by saying, p. 112: 'It ignores the difference between the statute and the contract, and confuses the two entirely distinct matters of construction and validity. The statute precedes the contract. Its scope and meaning must be determined before any question will arise as to the validity of the contract which it authorizes. It is elementary law that every statute is to be read in the light of the Constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the legislature to reach. It is the same rule which obtains in the interpretation of any private contract between individuals. That, whatever may be its words, is always to be construed in the light of the statute; of the law then in force; of the circumstances and conditions of the parties. So, although general language was introduced into the statute of 1871, it is not to be read as reaching to matters in respect to which the legislature had no constitutional power, but only as to those matters within its control. And if there were, as it seems there were, certain special taxes and dues

which, under the existing provisions of the state Constitution, could not be affected by legislative action, the statute is to be read as though it in terms excluded them from its operation.' The language quoted was not obiter. The case turned upon the construction of the statute and reversed the construction by the highest court of the state of its own statute, as well as its judgment that the statute thus construed was inconsistent with the state Constitution, because 'all taxes' included taxes beyond the power of the legislature. I am unable to reconcile the judgment in that case with the conclusion which is reached by the court in this. The reasoning which, in that case, led the court to construe a statute providing that the coupons should be receivable for 'all taxes' to mean only for such taxes as the legislature had the constitutional power to declare payable in such a manner, is equally potent to lead the court, in the case at bar, to construe a statute providing for the liability of the interstate and foreign carrier to 'any of its employees' to mean only to any of its employees for whom Congress has the constitutional power to make such a provision. In that case there were taxes within the legislative control, and taxes without the legislative control of the Virginia assembly; in this case there are employees within the legislative control and employees without the legislative control of Congress; in that case the statute provided for 'all taxes;' in this case the statute provides for 'any employees;' in that case, examining the statute 'in the light of the Constitution,' this court declared that 'however broad and general its language, it cannot be interpreted as extending beyond those matters which it is within the constitutional power of the legislature to reach,' and if it appears that there were taxes beyond the control of the legislature, that the statute should be read 'as though it in terms excluded them from its operation;' I am unable to imagine any reason why, examining the statute in this case with the aid of the same light, the court should not make the same declaration of its meaning. Moreover, it should be remembered that a circumstance lead-

ing in the same direction is present in the case at bar which was absent in that case, for, to repeat what has already been said, here the general words are used in a context which suggests, if it does not require, the less extended meaning.

It should be observed that the McCullough Case was simply a case of constuction. The court made no judicial amendment of the statute or exception from its provisions of any subject which came within them according to their proper meaning, ascertained with the aid of the light of the constitutional limits of the legislative power. Mr. Justice Brewer pointed out the distinction between the construction of the statute and its validity, saying: 'The statute precedes the contract. Its scope and meaning must be determined before any question will arise as to the validity of the contract which it authorizes.' Thus the case is distinguished from some others, much relied upon in the argument, which establish the proposition that a single statutory provision is void if it is expressed in general words so used as to manifest clearly the intention to include within those words subjects beyond the constitutional power of the lawmaking body. The courts have no power to read into such a provision an exception for the purpose of saving that which is left from condemnation. A law which cannot endure the test of the Constitution without judicial amendment must perish. United States v. Reese,  92 U.S. 214 , 23 L. ed. 563; Trade-Mark Cases,  100 U.S. 82 , 25 L. ed. 550; United States v. Harris,  106 U.S. 629 , 27 L. ed. 290, 1 Sup. Ct. Rep. 601; Baldwin v. Franks,  120 U.S. 678 , 30 L. ed. 766, 7 Sup. Ct. Rep. 656, 763; United States v. Ju Toy,  198 U.S. 253 , 49 L. ed. 1040, 25 Sup. Ct. Rep. 644. See Illinois C. R. Co. v. McKendree,  203 U.S. 514 , 51 L. ed. 298, 27 Sup. Ct. Rep. 153. But the rule derived from these cases is by no means decisive of the inquiry whether this statute must be construed as seeking to accomplish objects beyond the power of Congress. It can be made decisive only by begging the very question to be determined, and, in the words of Mr. Justice Brewer, confusing 'the two entirely distinct matters of construction and validity.' It merely expresses the judicial duty which arises after the question of construction is determined. A critical examination of the

cases shows that in each of them, in the opinion of the court, the language of the statute admitted of no possible interpretation, except that Congress intended to deal, by a single and inseparable provision, with subjects without as well as subjects within its control. As was said in one of them (United States v. Reese, 92 U.S. 220, 23 L. ed. 565), there was 'no room for construction unless it be as to the effect of the Constitution.' It would be unprofitable to dwell upon all these decisions, and I content myself with the analysis of one, and that the one deemed by counsel who rely upon it as the most important and conclusive. In 'The Trade-Mark Cases' it appeared that, in an act entitled, 'An Act to Revise, Consolidate, and Amend the Statutes Relating to Patents and Copyrights' [ 16 Stat. at L. 198, chap. 230], provision was made for the registration of trademarks in the Patent Office. Some years later an act was passed providing for the punishment by fine and imprisonment of any person making fraudulent use of or counterfeiting trademarks thus registered. The cases were indictments under this later act, and the question for decision was its constitutionality. The act was supported first upon the ground that it was authorized by that part of the Constitution which confers upon Congress the authority 'to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.' The court, after saying 'that it is a reasonable inference that this part of the statute also was, in the opinion of Congress, an exercise of the power found in that clause of the Constitution,' and that 'it was mainly, if not wholly, to this clause that the advocates of the law looked for its support,' held that this clause was not a sufficient source of authority for the act. The act was supported, second, upon the ground that the commerce clause of the Constitution supplied the requisite authority to Congress. But there was not a word in the act from which it could be inferred that Congress intended to exercise the power conferred by the commerce clause. The court, by Mr. Justice Miller, after pointing out that

commerce within a state was beyond the control of Congress, said: 'When, therefore, Congress undertakes to enact a law which can only be valid as a regulation of commerce, it is reasonable to expect to find on the face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations, or among the several states, or with the Indian tribes.' Words could not be more happily chosen than these, to describe what the statute in the case at bar is on its face and from its essential nature. The Justice then proceeds to say: 'If not so limited, it is in excess of the power of Congress. If its main purpose be to establish a regulation applicable to all trade, to Commerce at all points, especially if it is apparent that it is designed to govern the commerce wholly between citizens of the same state, it is obviously the exercise of a power not confided to Congress.' No words could be more happily chosen than these, to describe exactly what the statute in the case at bar is not. The court, then, taking the view, upon which there cannot be two opinions, that the act intended to establish a universal system of trademark legislation applicable to all commerce, held the statute void, saying: 'It is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear, in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body.' The reasoning relied upon in this case to overthrow the statute, if applied to the statute before us, tends to support it.

I do not wish to be understood as saying that the group of cases I am now discussing does not furnish instances where the court has declined to limit the meaning of words in order to save the act. I only say that, in these cases, it could not be done without violating the obvious intent of Congress, as ascertained by the necessary meaning of the language it employed; in other words, that in these cases only one interpretation was possible, and there was 'no room for construction.' They cannot be understood as deciding that general

words may not, in view of the context where they are found, and, with the aid of the light of the Constitution, be restrained in their meaning, with the purpose and effect of giving them such a construction that the act may be sustained as a legitimate exercise of the legislative power. If they should be so understood they would be in flat conflict with the McCullough Case, and with the spirit of the interpretation that prevailed in United States v. Palmer, 3 Wheat. 610, 4 L. ed. 471, and Church of the Holy Trinity v. United States,  143 U.S. 457 , 36 L. ed. 226, 12 Sup. Ct. Rep. 511. In the former case it was held that an act which punished certain offenses committed by 'any person or persons' upon the high seas should not be construed as including persons who might commit such offenses on board a vessel belonging to the subjects of a foreign state; Marshall, Ch. J., saying: 'The words of the section are in terms of unlimited extent. The words 'any person or persons' are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them.' in the latter case it was held that an act that forbade all persons from assisting the migration into to the United States of 'any alien or aliens, any foreigner or foreigners,' under contract 'to perform labor or services of any kind,' did not include a minister of religion, though such a person was within the letter of the statute. These cases show that we may with propriety give to the words 'any of its employees' the narrower meaning, and, because such meaning saves the act from condemnation, it is, I believe, our imperative duty to adopt it. No words need to be read into the act. It is required only that the words already there shall be applied to that commerce which Congress referred to; namely, territorial, foreign, and interstate. Thus read, the whole statute is saved and no part of it is destroyed.

The natural meaning of the words of the statute considered together, each word receiving significance from those with which it is allied, the respect which is due to Congress, the

belief which I hold that it would not intentionally overstep the clearly defined limits of its authority, and the principles of construction heretofore acted upon by this court, lead my mind to the settled conviction that the statute can be interpreted, and ought to be interpreted, as affording the remedy therein prescribed only to the employees of foreign, interstate, and territorial carriers, who are themselves engaged in some capacity in such commerce in some of its manifold aspects. If this meaning be attributed to the words of the law, it is apparent that, in the opinion of a majority of the court, the law, in its main features at least, would be constitutional.

Entertaining these views of the meaning of the statute, I am compelled to go further and consider the other objections to it. I agree entirely with all that was said in the opinion of Mr. Justice White in support of the power of the Congress to enact a law of this general character, but, as I think that the judgments in these cases ought to be reversed, I cannot escape dealing with specific objections to the statute which he has not deemed it necessary to discuss. I think it better, therefore, to deal with all the questions that are necessarily raised in these cases.

I come now to the question whether the statute, thus construed, is in the execution of any power conferred by the Constitution upon the Congress. It is apparent that there is no such power unless it be found in that clause of the Constitution which authorizes Congress 'to regulate commerce with foreign nations and among the several states and with the Indian tribes.' It hardly needs to be said that the inability of the national government created by the Articles of Confederation to deal effectively with commerce was one of the efficient causes of the call for the constitutional convention. No doubt the most urgent need of that time was a central government with powers adequate to control foreign commerce, but interstate commerce was not overlooked, though its principal importance then consisted in its relation to foreign commerce. Federalist, No. 42, by Mr. Madison.

No one could then have foreseen the extent of the interestate commerce of our times, for no one could foretell the employment of the forces of steam and electricity which have so wonderfully aided its development. But the statesmen of that time, confident of the future, and hopeful that they might devise a government which would endure, must have understood that the commerce which concerned more than one state, from its essential nature, was in part outside the territorial jurisdiction of any state, could not be governed efficiently by a single state, and, if left outside of the national control, would be subject to woeful e