treated, and the principle suggested can perhaps be understood only by referring to both parts. No other department of constitutional law furnishes such an opportunity to acquire a knowledge of the respective powers of the federal and State governments as does a study of this subject. The enlightenment acquired reveals the existence of an exclusive authority of the States as to all matters concerning their domestic commerce, and a power in the States concurrent with, but subordinate to, that of Congress respecting many matters affecting the instrumentalities of interstate and foreign commerce. We hear much said about enlarging the powers of the federal government by judicial construction. Whatever else the suggestion may allude to, it cannot refer to the power of Congress to regulate the instrumentalities of interstate commerce. It is impossible to give any attention to the subject without being impressed with the wide powers possessed by the States over the instrumentalities of commerce, even in matters having relation to and affecting their interstate and foreign business. The question of the expediency of the adoption, whether by the national government or by the States, of regulations which may be said to be within the concurrent powers of the federal and State governments, but inoperative as to the State enactment when Congress has legislated on the particular subject, must in many instances be determined by the sufficiency of the action of the States to meet the local requirements. The failure of the States to adopt regulations to meet a supposed need, either by indifference to the wrong or delinquency or by such an exercise of the power that, on account of [iv] the absolute requirements imposed, a regulation cannot pass the supreme test of reasonableness, results in agitation for federal regulation of matters concerning which the power of Congress is undoubted. There would be no need to invoke the exercise of the federal power in such cases if States adopted reasonable regulations to satisfy local requirements or opinion. This topic may be illustrated by comparing the attempt of the State of Texas to meet the car shortage problem, and the laws of several of the States prohibiting the running of freight trains on Sunday. In the case respecting the Texas statute, the court seemed careful to avoid saying that the subject-matter of the statute is not a proper matter for the exercise of the State police power. Indeed, it was strongly intimated that such a regulation is within the same class of subjects as those regarding the speed of trains, the length and frequency of stops, the heating, lighting, and ventilation of passenger cars, and the furnishing of food and water to cattle and live stock. It was, however, the failure of the statute to make allowance for contingencies which good management and a desire to fulfil all legal requirements cannot provide for, that constrained the court to declare the statute to be unreasonable and invalid. If the State laws prohibiting the transportation of freight on Sundays required that freight trains should stop at twelve o'clock on Saturday night, it cannot be supposed that they would be sustained as to trains carrying interstate and foreign freight. But by permitting trains running on Saturday night to run through to destination or to reach, before eight or nine o'clock on Sunday morning, a convenient place to wait over, every requirement of reasonableness was met. Many such illustrations may be found by the investigator. The Federal Employers' Liability Act of June 11, 1906, has recently been the subject of judicial condemnation.1 The statute in part and in effect declares the liability of every common carrier engaged in commerce between the several States for injuries to any of its employees, abrogates the assumption of risk and fellow-servant doctrines, and imposes the doctrine of comparative negligence. The first point considered by the court was whether regulating the relation of master and servant can be regarded as a subject of commerce or as a rule for carrying it on. Though the court answered the point in the negative, we have the impression that it has never been questioned until this case that the power of Congress over the instrumentalities of commerce covers every relation and necessarily includes the declaration of the rules of liability of interstate carriers to their employees, and especially when such rules are obviously adopted for the purpose of impressing upon the carriers the duty of exercising every precaution for the safety of their employees. The second point of objection is one which suggests greater doubt and difficulty. It is that by reason of the terms of the statute not, so the court thought, restricted to interstate carriers and their employees engaged strictly in interstate transportation - it is applicable to domestic as well as to interstate commerce, and, inasmuch as it can 'In the case of Brooks v. Southern Pac. R. Co., decided by Hon. Walter Evans, District Judge, holding the United States Circuit .Court for the Western District of Kentucky. [vi] not be limited by construction, is invalid. The cases cited by the court to support this contention had relation either to matters connected with the executive department, or to declaring certain acts as crimes. In the one class of cases it may be said that whenever Congress imposes duties upon administrative or executive officers the instructions must be specific and not leave the statute open to construction. Especially when the constitutional rights of persons may be involved, the leaving of questions of construction, requiring a limitation of the exercise of the powers under the statute within constitutional bounds, to such officers would be imposing upon them judicial duties. In the other class of cases the rule requiring the strict construction of criminal statutes prevents the courts from giving to a statute, general and not separable in its terms, a narrower meaning than it is 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 Congress. This statute, however, simply declares a rule of civil liability which can be invoked only in a pending action and applied by a court of law in a proper case. In an action for damages for personal injuries sustained by the employee of a common carrier, pending in a federal court, the court, in the absence of a federal rule of liability, would be under the necessity of searching the whole realm of the common law for a rule of decision, as modified probably by a statute of the State within which the court might be sitting. It can then surely be no strain on judicial conscience or duty to apply in proper cases the rules of liability declared by a federal statute, though the statute be open to possi ble verbal criticism. It may be further safely said that if Congress were to declare any rule of liability, or by a statute general in terms were to modify or abrogate any common-law rule, it would be the duty of the courts to apply the rule in all proper cases arising under the Constitution, laws, or treaties of the United States, and in all cases arising out of transactions of which the national government has legislative jurisdiction. However this may be, the Supreme Court of the United States will doubtless be given an opportunity, at an early date, to pass upon the validity of this particular statute. NORTHPORT, N. Y., T. H. C. [viii] |