pensation system upon the fundamental principle that it is a wise, and just, and necessary regulation of a public-service carrier which is at common law under the regulating power of the sovereign under whom it acts.

I can not think of any measure that we had more to protect the public safety in travel upon our railroads than the adoption of this system throughout the United States.

I heard at the time of depression of 1907 that an executive committee of one of our railroads had sent out word everywhere that where one man could do the work of two, to have him do it. I doubt very much if we had such a compensation system if any such direction would ever have been given. General managers want, of course, to manage their railroads to suit the owners. They have the same human nature as the rest of us have.

The CHAIRMAN. The railroad company would probably conclude that it would be cheaper to pay two men wages than one man dam

ages.

Mr. JUDSON. I think that when the law imposes that duty we would have a tremendous contribution to the safety of travelers. What I have said is rather on the side of the public than on the side of the employee, because the interest of the employee is linked to that of the public, and so the Supreme Court has said. The very last utterance of the Supreme Court on this question, in this very case to which I alluded, enforcing the reports upon the hours of labor. The court said:

This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection to life and property necessarily depend. This has been repeatedly emphasized in official reports of the Interstate Commerce Commission, and is a matter so plain as to require no elaboration. In its power suitably to provide for the safety of employees and travelers, Congress was not limited to the enactment of laws relating to mechanical appliance, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive tours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced with the class defined by the act. The court said that was reasonable. I do not at all agree with the suggestion that this compensation is different in principle from the regulations which have been sustained by the Supreme Court. The maxim respondent superior, termed by one of our legal writers a question-begging maxim, is based on no ethical principle, but on principles of public policy. If any of you gentlemen is fortunate enough to be the owner of an automobile, and your chauffeur brings you to your office, you send him back through a crowded city, with most positive instructions for careful driving; should he run over somebody on the street through careless driving, no ethical principle can hold you responsible; but, fortunately, the law adopts a rule based upon public convenience and public safety, and says that however correct and moral your own feelings may be, you must be responsible for the man that you employ. That principle has been recognized by the civil law as well as the common law, while it is an interesting fact in the history of the law that the "fellow-servant rule," which has played such a tremendous part in this question, and which has required legislative acts and congressional acts to remove, is not recognized in the civil law, and is peculiar to the common law. We find it is not adapted to modern civilization and

modern conditions. The original case of the fellow service of the cook and the scullion certainly furnishes no analogy to the case of a switchman and an engineer on a modern railroad, though our courts have endeavored to apply it.

I submit, gentlemen, that I can not add anything to what has been so eloquently said by Mr. Thom as to the evils of the present system-that is, of depriving 80 per cent of those who are injured of employees of any relief and thus leaving the other 10 or 20 per cent to the assistance of the certain class of lawyers who are sometimes designated by opprobrious terms, who share with them in any possible recovery. This condition existing in this country alone of all the countries of the civilized world is discreditable to our civilization. And I heartily concur in what Mr. Thom has said on that subject.

Mr. Moon. The distinction, then, that you draw in the State of New York between servants in industrial establishments and the servants in quasi public corporations would that in the one case questions of public policy would intervene that might sustain the validity of a law of that kind, which can not exist in any other case.

Mr. JUDSON. Undoubtedly; the public is directly interested in the one case while it is not in the other. It may have a remote effect in the case there in promoting public order and the like, in relieving bad social conditions and promoting public peace, but the peculiar arguments that address themselves to you in this problem do not apply there, and the court recognized it. Here you are dealing with a public servant. In Germany, which was referred to yesterday, the railroads are owned and operated by the State. In this country we allow them to perform the public duty, although owned and operated by individuals. The main reason, therefore, for this regulation is that it will preserve the safety of the public, in the use of these dangerous public instrumentalities.

I submit that the law of interstate commerce, the law of the fifth amendment, and the law of the seventh amendment has been so fully expounded that I would not be justified in repeating, and I would have no occasion for repeating what has been fully said nor to read the authorities cited and quoted in the brief filed by Mr. Kellogg and myself. I rest the proposition on this fundamental distinction that I have pointed out. It is not taxation; it is not insurance; but it is regulation; it is regulation of the quasi public corporations in a public service; and in providing that the railroad that employs employees, selects the instruments, adopts new inventions, has the direction of the details of operation, and has the power to adopt preventive means; that it should have the strongest possible human inducement to impel it to that prevention, as far as possible, all accidents which imperil both employees and the public.

At the first meeting of the commission Mr. Lewis read a report of steps that have been taken by the manager of the Union Pacific Railroad Co., Mr. Krutchnitt, for the prevention of accidents. How did he prevent them? By employing an extra force of men, and the like, and he had enormously reduced the normal number of casualties. You are performing a righteous service in removing a discreditable condition which has made the administration of justice a scandal to a civilized country. You are making it a rule that will inure not only to the protection of these employees but to the safety

of the traveling public, and in doing that you will enact legislation that I believe is a vast and public benefit.

The CHAIRMAN. Mr. Judson, I want to ask you whether you had given any thought to this phase of the question. Under the employers' liability bill first passed there was no distinction made between intrastate and interstate employees.

The Supreme Court held the act to be invalid for that reason. Subsequently we made it clear that it was to apply only to interstate employees or employees engaged in interstate business. Since that time the Supreme Court has upheld the new safety appliance law-or has it yet passed upon it?

Mг. THOм. That is still to be decided.

The CHAIRMAN. The question is pending before the Supreme Court.

Mr. JUDSON. I think they upheld the safety appliance act and they have based it on the new employers' liability act. They have sustained the old one, however, as to the District of Columbia and the Territories of the United States.

The CHAIRMAN. What I want to get at is this. Judge Sanborn pointed out in his decision very clearly the underlying relation between intrastate and interstate commerce that in substance is one thing and we can not touch it in one place without affecting it in others. If we pass a compensation act it will not be pleasing to the people if it is made to depend upon whether the employee is at the time of the injury engaged in interstate business or intrastate business. Have you thought about that as to whether or not we can include both.

Mr. JUDSON. This is very difficult, for the reason that you are right there on the border line of a complex system of government, you may say. Congress passed an act making the hours of service nine hours for all railroad employees-interstate employees. The State of Missouri had passed an act than that of fixing eight hours for all employees within the State, and Wisconsin had also. In Missouri our supreme court held that the act of Congress being Supreme had superseded the State act; the State act as passed was limited only to State employees, but as the act was drawn it covered both interstate and intrastate, and they held the act invalid and discharged the party charged with violating it. And I think the Supreme Court of Wisconsin made the same decision. The law is well settled, that while the State can legislate (in the inaction of Congress) in the exercise of its police power, both as to State and interstate travel, but when Congress acts it supersedes such legislation so far as it bears on the interstate travel.

The CHAIRMAN. If Judge Sanborn thought the law of the State or the regulation of the Commission of the State, fixing rates between two towns within the limits of the States was invalid—

Mr. JUDSON. What Judge Sanborn said, Mr. Chairman, was this: Minnesota has a town right on the border-Duluth-with another town right across the State line-Superior City-and two adjoining towns similarly located on the western border. As the court found as a fact that a State rate between these two such State points would necessarily interfere with the interstate commerce rates to the towns across the border, it was held invalid.

The CHAIRMAN. Judge Sanborn held in that case that it did?

Mr. JUDSON. Yes.

The CHAIRMAN. Now if a regulation can be declared invalid which in form it may be, fixes the rates only between two towns within the State, on the ground that it affects the rates outside of the State, the subject is a very important one.

Mr. JUDSON. It is a difficult proposition.

The CHAIRMAN. It is possible that sometime we may reach the point where Congress will exercise the power of regulating commerce, whether intra or interstate, because the two are so intimately connected that we can not touch one without affecting the other.

Mr. THOм. They are indivisible.

Mr. JUDSON. A railroad is certainly an entirety, and I think that is the hardest problem our courts have in solving such a question. The CHAIRMAN. Now, in so far as a compensation law is justified by the interest of the public, what difference does it make whether it is the public in one State or part of the public of various States!

Mr. JUDSON. I do not think that there will be any substantial difficulty on account of the necessary limitation to the employees engaged in interstate commerce. The difficulty with the employer's liability act of 1906 was that it undertook upon the face of the act to provide for all employees of interstate carriers. On the other hand, the broad construction given by the Federal courts to the safety-appliance act as to what constitutes employment in interstate commerce, would indicate that substantially all of the employees of an interstate carrier engaged in hazardous employment incident to the operation of the road, could be included in a compensation act. Furthermore, it is exceedingly probable that any carefully drawn act enacted by Congress would be followed and supplemented by the legislation of the several States.

Mr. JUDSON. I simply wish to say finally that Congress had determined that the principle is just; that is all. Its action for Government employees has no relation with exercise of the power under the commerce clause, and I am strongly of the opinion that as the State corporations engage in interstate commerce Congress has all the power that the State could give that corporation in its charge, so far as the operation of the railroad and its relation to the public are concerned in the direction of interstate business. Otherwise the Federal power would be very indefinite and incomplete. Some power must solve such a problem as this. I am told now that every railroad in the United States does some interstate business. There may be here a few short roads that break the bulk of freight and do not make through shipments, but I apprehend they would be very hard to find, and I think that practically every steam railroad of the country is an interstate road, and its employees, as a rule, are engaged at some time in some work in interstate commerce. I do not think there would be any difficulty about the application of such an act of Congress.

(Argument of Miles M. Dawson, Esq., made on this date printed at p. 64 to connect with his opening remarks.)

The CHAIRMAN. Is there anybody else who will want to be heard on this matter? If not, we will adjourn subject to the call of the chairman.

(The commission thereupon adjourned to meet on call of the chairman.)

BRIEFS FILED WITH THE COMMISSION.

PRELIMINARY BRIEF

BY

LAUNCELOT PACKER.

ON THE POWER OF CONGRESS TO IMPOSE AN ABSOLUTE LIABILITY,
IRRESPECTIVE OF NEGLIGENCE, UPON AN EMPLOYER FOR ACCI-
DENTS TO HIS EMPLOYEES IN HIS BUSINESS.

Is imposing an absolute liability upon an employer, irrespective of his negligence, for all accidents to his employees which occur during and arising out of their occupation within the inhibition of Article V of the amendments to the Constitution, "that no person shall be deprived of his life, liberty, or property without due process of law."

"Due process of law" has been held in Murray v. Hoboken Land Co. to be synonymous with "the law of the land" in Magna Charta, which is a statute declaratory of principles of the common law (Cooley's Constitutional Limitations). (Murray v. Hoboken Land Co., 18 How., 272.)

There is no departure from the theory of law in legal recognition of substantive rights and liabilities developed by changes in conditions (the law contemplates change as conditions change, otherwise common-law rights would still be restricted to those in the writs of Westminster Hall).

In Hurtado v. California (110 U. S., 530) Mr. Justice Matthews said:

The flexibility and capacity for growth and adaptation is the peculiar boast
and excellence of the common law. The Constitution of the United States was
ordained, it is true, by descendants of Englishmen who inherited the traditions
of English law and history; but it was made for an undefined and expanding
future.

There is nothing in Magna Charta rightly construed as a broad charter of
public right and law which ought to exclude the best ideas of all systems and
every age. In this country
the provisions of Magna Charta were
incorporated into bills of rights.

Here they have become bulwarks against arbitrary legislation; but in that application it would be incongruous to measure and restrict them by the ancient customary English law.

And in commenting upon the test of what constitutes due process of law, advanced in Murray v. Hoboken Land Co. (18 How., 272), which said "We must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors which are shown not to have been unsuited