Damselle Howard v. Illinois Central Railroad Company No 216 Brooks Southern Pacific Company No 222

Decision Date06 January 1908
Docket NumberNos. 216,222,s. 216
Citation28 S.Ct. 141,207 U.S. 463,52 L.Ed. 297
PartiesDAMSELLE 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
CourtU.S. Supreme Court

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

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

[Argument of Counsel from page 464 intentionally omitted] Durelle, and W. M. Smith for plaintiff in error in No. 222.

[Argument of Counsel from pages 465-479 intentionally omitted]

Page 479

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

[Argument of Counsel from pages 479-486 intentionally omitted]

Page 486

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.

[Argument of Counsel from pages 486-489 intentionally omitted]

Page 489

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

Page 490

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.1

Page 491

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

Page 492

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.

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:

'We are now arrived at the inquiry, What is this power?

Page 493

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.'

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:

'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.'

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.

Page 494

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...

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