partly remedial, where in Section 11, a commission is created; also where in Section 15, provision is made for a hearing rather than a suit, and an opportunity is given for the carrier to make reparation for a wrong found to be done, thus providing a new and simple remedy; and it is partly penal, as in Section 10, which provides that for infractions of this act by discrimination in rates there may be imposed a fine or sentence of imprisonment. So far as some of the declaratory clauses lead to penalties in later sections, the whole effect becomes penal rather than otherwise, but there are remedial clauses independent of penal clauses, so that this act, or law, or statute, may fairly be considered to combine all three classes; declaratory, remedial, and penal.

Constitutional Questions. It has already been stated that a statute sets aside or repeals" the earlier Common Law so far as the latter is antagonistic to the former. It should further be understood that although the state or national government has three different sides, executive, legislative, and judicial, it may, and sometimes does, happen that the legislative branch passes and the executive approves some act which is illegal, being contrary to that part of the law of the land which is supreme and enduring, the Constitution of the State, or of the United States. The foremost question as to the provisions of any written law will usually be with every legal mind, "Does it interfere with any constitutional provision, State or federal?" In case it does, the courts declare such a statute unconstitutional. An act which seems unfair, senseless, unwise, will not be set aside for that reason; to be void it must contravene some constitutional right of an individual, community, or State.

Examples. As an instance of constitutional law affecting statutes, the Constitution of the United States provides that no State shall pass any law impairing the obligation of contracts; State constitutions commonly provide that private property shall not be taken, even for a public use, without just compensation and without due process of law. These rules or principles are meritorious rather than technical and are desirable for every one to keep in mind. An engineer's judgment on either of these propositions will often be keen and correct, and justify him in consulting competent legal authority (insistently, if necessary) for an opinion on this point. The engineer finds it necessary to secure by right of eminent domain, land for a city street, for a reservoir, for a public water supply, for right of way of a railroad; the statute which provides for so taking land makes provision for determining the compensation to be paid, and arranges for a convenient and also constitutional legal process.

Master and Servant. The " Employers' Liability Act" or statute is not without interest to engineers in connection with the discussion in this chapter, although it will be treated more fully later. Under the

Common Law of "master and servant," the master is responsible for the acts of his servant, or employee, performed (or neglected) in the line of his duties. This rule is of long standing.

Fellow Servants. Between 1830 and 1840 conditions existed which led to the establishment from that time forward of a new rule affecting many cases, the law of "fellow servants." Under this rule of the Common Law, one employee could not recover from his employer for injuries received through the carelessness or neglect of a fellow-servant or coemployee in those cases where an outsider clearly could secure compensation if injured.

Law Stated. One of the decisions under the Common Law reads as follows:

"When a master uses due diligence in the selection of competent and trusted servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable when there is no countervailing statute, to one of them for an injury received by him in consequence of the carelessness of another, while both are engaged in the same service." "The ordinary risks of the employment" "are taken into consideration" "in agreeing to the terms of the contract," "including the negligence of competent fellow-servants."

The employer was responsible for discoverable defects of machinery or apparatus or plant, but not for neglect of a co-employee if proper care was exercised to provide competent and suitable workmen.

It became difficult sometimes to determine whether an accident was chargeable to a co-employee or to the employer, perhaps where a piece of apparatus was slightly defective and was carelessly used by a co-employee. After a time the courts had also come to show some disposition to hold corporations responsible where an accident was caused by the negligent or improper act of an officer high in authority in the corporation, in one case by an employee no higher than the conductor of a railroad train.

Employers' Liability Act. Finally in 1880, in England, a statute was passed known as the "Employers' Liability Act." Afterwards in 1885, 1887, and at other times later, in several of the United States, similar statutes were passed. These somewhat enlarged the responsibility of the employer, specifically holding that the acts of the superintendent should not have the effect of those of a co-employee; while in the case of a railroad the Massachusetts act provides that, when the injury results from "the negligence of a person in the service of the employer who was in charge or control of a signal, switch, locomotive engine or train upon a railroad," and the injured employee did not contribute to the negligence, he shall have the same rights as if he had not been in the employ of the employer; and this has been liberally construed in favor of employees. The Massachusetts act is substantially a copy of the English

act; in Indiana and Alabama acts somewhat similar have been passed. These acts although in part apparently declaratory are largely remedial, and their constitutionality seems to be established.

Federal Act. The Congress of the United States passed a similar act applying to employees of railroads engaged in interstate commerce. The constitutionality of this United States statute was called in question on the ground that the employment of an employee within a State is not a matter of interstate commerce and therefore not within the province of United States action, but purely a State matter. The United States Supreme Court in 1908 decided the act to be unconstitutional, on the ground that when the employee is not engaged in interstate work (although the railroad may be) the United States has no authority. A later act, passed in 1908, was intended to cure the defect, and apparently has done so.

"" Illustration. There is illustrated here the older rule of the master and servant," modified later purely through the action of the Common Law under the rule of "fellow servants," modified again (constitutionally) by statute by the "Employers' Liability Act," while the earlier attempted extension by United States legislation illustrates an interesting case of a statute set aside because unconstitutional.

Construction of Laws. When a statute has been passed it becomes necessary to determine what it means (as a law); and the law states clearly that it means what it says; it is not always, however, entirely easy to determine what it does mean or does say, and for this reason certain rules have been laid down by the courts in order to aid in determining the meaning. This determination of meaning is technically called the "construction" of the statute (or of a contract or of any document). Before entering critically into this matter it may prove helpful to briefly consider the character of a suit at law.

LAWSUIT AND COURT TRIAL

Method of Bringing Suit. When a condition of affairs exists which seems to justify a lawsuit, the first step is to secure from the proper court certain papers so that the necessary notice may be served upon the person sued, who is called the defendant. The person who brings the suit is called the plaintiff; he has a complaint against the defendant. The technical features of these papers and of serving them are matters for the lawyer, and not for the engineer or any layman. It is well for the engineer to understand, however, that the correct name of the defendant should be known, both the surname, or family name, and the given, or Christian name; these should be stated in full to secure certainty as to

the party sued. The middle name is less important and is generally not specified in full, but by initial only. Using the first initial and the middle name in full is not considered good practice in formal legal matters. Complete identification is the essential point, however. For all legal purposes the full Christian name should be given, whatever may be the ordinary signature of a person or popular way of using the name. It is worth while to suggest also that in any suit where the court is called upon to deprive the owner of control of property, as in attachment or replevin, a bond is required in many States, sometimes for twice the amount of the property involved. Statutes have been passed in some States doing away with the requirement of a bond in attachment. Where a bond is necessary, parties who can give bonds in satisfactory amount should therefore be secured before going to the lawyer, especially in cases where the party bringing the suit lives at a distance from his lawyer.

Proceeding In Personam and In Rem. When the action is against some person who is summoned into court, it is often referred to as a proceeding "in personam"; and the remedy contemplated is a financial award in cases at Common Law. When the action, however, looks to a piece of property which is either to be returned, or else acquired as security for a debt and sold to satisfy it, the proceeding is “in rem."

In Personam. In actions "in personam," the preliminary paper, the summons, must be served upon the defendant personally, or perhaps by leaving it at his residence, or possibly in some other way authorized by statute. The service must be within the State and within the jurisdiction of the court. Until such personal service of the summons is made, the court has not acquired jurisdiction of the case. A non-resident cannot be served unless, unwittingly, he enters the State.

In Rem. In a proceeding " in rem," personal service is not required. A man must look after property which he owns, so that notice may be given by tacking the summons on a piece of real estate, or seizing goods by attachment, together with such other notice, like advertising, as the statutes may require. While the court in the latter case obtains jurisdiction of the case, provided the property be within the jurisdiction of the court, even then its jurisdiction will not support a judgment for money against the defendant personally if the property reached is insufficient; the jurisdiction is confined to the property reached by the service.

Appearance. If a person upon whom notice has not been served allows his lawyer to appear generally for him in court, this act is held to acknowledge service, and the court then has jurisdiction.

Pleadings. The next thing is to specify distinctly or declare what complaint is made, and this is the work of the lawyer in the "declaration." A reply to this is made by the lawyer for the defendant, and by a series

of such "pleadings," as the term is, the real questions at issue between the parties are reduced to their lowest terms, so that the evidence submitted may be closely directed to the essential points; unless so directed it will not be accepted.

Examples. For instance, A sues B for money loaned. B says A loaned him no money.

In another case C sues D for money loaned. D says that it is true he borrowed, but that he has paid C and now owes him nothing.

In another case E sues F for $100, the value of furniture sold F. F rejoins that E owes him $105 for groceries sold E.

Again G sues H for 10 barrels of cement sold him. H claims failure of consideration because the cement was of poor quality and useless.

Pleadings by Lawyer. All pleadings are formal papers requiring the skill of the lawyer. The engineer is likely to have clearly in mind the evidence available in any suit in which he is interested, and this evidence will be the foundation for the pleadings. The collection of evidence is so important and the engineer is so often in position to gather evidence, that the next chapter will deal with "evidence," a branch or subject of the law very important to the engineer.

Questions of Law for Judge. When the case comes to trial before judge and jury, if all the evidence is harmonious, as is sometimes the case, the judge, or as more commonly expressed, the "court," decides what is the law applying to this undisputed state of facts; there is nothing left for the jury unless to bring in the verdict which the court directs them to find. Similarly, if all the facts presented by the plaintiff, even if true, would not in point of law make the defendant liable in this case, the court will properly instruct the jury to bring in a verdict for the defendant.

Questions of Fact for Jury. When, however, the evidence presented is inharmonious, and it becomes necessary that there shall be some means of determining what part of the evidence is to be accepted as true, and what part rejected as false, then the settlement of this matter is for the jury, who are the sole judges of the facts; for example, the credibility of witnesses, or what was the position of a signal which was an element of a railroad accident, or the condition of a sidewalk where some one fell and was injured. The judge is not allowed, however good his judgment, to pass upon those facts which are in dispute; this is for the jury alone. On the other hand it is not allowable for the jury to determine what is the law in the case; the jury is not skilled in the law and is incompetent to do this. The judge instructs the jury what the law is, that is, so much as is applicable to the case and is necessary to enable them to reach a proper verdict, which must rest upon their findings as to the facts combined with the judge's instruction to them as to the law.