Gowen v. Harley, 249

• Citation: 56 F. 973
• Decision Date: 10 July 1893
• Docket Number: 249
• Parties: GOWEN v. HARLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 973

GOWEN v. HARLEY.

No. 249

United States Court of Appeals, Eighth Circuit.

July 10, 1893

[Copyrighted Material Omitted]

J. W McLoud, for plaintiff in error.

Joseph M. Hill, (L. P. Sandels, on the brief,) for defendant in error.

Before SANBORN, Circuit Judge, and SHIRAS and THAYER, District Judges.

SANBORN Circuit Judge.

On June 20, 1891, Harrie Harley, the defendant in error, fell out of the door of a car of the Choctaw Coal & Railway Company hereafter called the Choctaw Railway Company, at South McAlester, in the Indian Territory, while he was endeavoring to move a train box from another car into the one from which he fell. He struck on his head and hurt himself. He was an employe of the plaintiff in error. For his injury he brought this action against Francis I. Gowen, the plaintiff in error, hereafter called the defendant, and E. D. Chadick, as receivers of the Choctaw Railway Company. Gowen was the acting receiver, and alone answered. There was a trial by jury, a verdict for the plaintiff, and a judgment upon it. The writ of error in this case was sued out to reverse this judgment.

This was the case: About the 1st of February, 1891, the plaintiff was employed by the defendant to clean cars at South McAlester. It became his duty, with the assistance of the porter, to transfer from one car to another a train box that weighed about 200 or 250 pounds, and a safe, at about 6 o'clock in the evening of each day. Each end of the train box was provided with a handle. There was a door on the side of each of the cars, and the cars were so placed when the transfer was made that these doors were opposite each other, and about five feet apart. The surface of the ground between the cars at the place where the transfer was effected was hard and smooth, and the shoulders of a man standing upon it were about the height of the floors of the cars. When the plaintiff entered upon this employment the box was transferred in this manner: There was a double bellrope about 18 inches long attached to one of the handles of the box. The porter would shove the box part of the way out the doorway of the car, and take hold of the rope. The plaintiff would stand in the doorway of the car opposite, take hold of the jamb of the door with one hand, seize the handle of the box with the other, and the two men would then swing it across into the car in which the plaintiff stood. As they were in the act of swinging it over in this way on June 20, 1891, the rope came untied, and the plaintiff fell out of his doorway, and was injured. The rope was attached to the handle of the box by the plaintiff or the porter. It was not one of the appliances furnished by the defendant. The box had been transferred in this way before the plaintiff entered upon this employment. A few days after he commenced the discharge of his duties he asked the master mechanic of the defendant for some skids to slide the box and safe across upon, and the next day he was supplied with a couple of planks, which he used until some time in May, when he was taken sick, and lost them. He returned to this work on May 20, 1891, and transferred the safe and box by swinging them across daily from that time until the accident, June 20, 1891. Within three days after he returned, and six or seven times in all between May 20th and June 20th, he asked the proper officers of the defendant for skids, and they promised to furnish them. The last promise was made within three days of the accident. The only reason he asked for the skids was that he thought it would be easier to slide the safe and box over upon them than to swing them over. He did not consider it at all dangerous to transfer them without skids or planks before the accident. The assignments of error go to the jurisdiction of the court below and to the sufficiency of the evidence.

The jurisdiction of the circuit court for the western district of Arkansas over this action rests upon the eighth section of the act of congress entitled 'An act to authorize the Choctaw Coal and Railway Company to construct and operate a railway through the Indian Territory, and for other purposes,' approved February 18, 1888, (25 Stat. 35.) This act contains 13 sections. Section 1 authorizes the company to construct a railroad, telegraph, and telephone line through the Indian Territory; sections 2, 3, and 5 authorize it to take and use a right of way and ground for stations in that territory, and provide a method of fixing and paying the damages for the taking; section 4 regulates the rates to be charged by the company for transportation of freight, passengers, and mails; section 6 provides for filing maps showing the location of the railroad, and their approval by the secretary of the interior, and limits the time within which the company must commence work upon the line approved; section 7 permits the employes of the company to reside in the territory, under certain restrictions; section 9 provides when the road shall be completed, and what crossings and bridges it shall maintain; section 10 makes it a condition of the acceptance of the right of way that the company will make no effort to change the tenure by which the Indians hold their land, or to secure any land from them; section 11 provides that all mortgages made by the company shall be recorded with the secretary of the interior, and that the record shall be notice thereof; section 12 reserves to congress the right to repeal or amend the act; section 13 prohibits the assignment of the right of way before the construction of the road; and section 8 provides:

'That the United States circuit and district courts for the western district of Arkansas and the northern district of Texas, and such other courts as may be authorized by congress, shall have, without reference to the amount in controversy, concurrent jurisdiction over all controversies arising between said Choctaw Coal and Railway Company, and the nations and tribes through whose territory said railway shall be constructed. Said courts shall have like jurisdiction, without reference to the amount in controversy, over all controversies arising between the inhabitants of said nations or tribes and said railway company; and the civil jurisdiction of said courts is hereby extended within the limits of said Indian Territory, without distinction as to citizenship of parties, so far as may be necessary to carry out the provisions of this act.'

The jurisdiction of the court below is challenged on three grounds:

First. That section 8 of the Choctaw Railway Company's charter is repealed by implication by the acts of March 1, 1889, establishing a court in the Indian Territory, (25 Stat. 783, c. 333; Supp. Rev. St. 670,) and of May 2, 1890, providing a temporary government for the territory of Oklahoma, and enlarging the jurisdiction of the United States court in the Indian Territory, (26 Stat. 81, c. 182; Supp. Rev. St. 720;) but it is admitted that there is no express repeal or reference in the subsequent legislation to this section.

Second. That, if this section is not repealed, and the court below still has jurisdiction of actions by or against the Choctaw Railway Company arising in the Indian Territory, it has no jurisdiction of actions against the receiver of the railway company. And,

Third. That, although the plaintiff alleged that he was an inhabitant of the Choctaw nation at the time of the commencement of this action, the defendant denied this allegation, and there was no evidence in support of it.

To sustain his first proposition, the counsel for defendant quotes the rule as to repeals by implication announced by Mr. Justice Field in delivering the opinion of the supreme court in U.S. v. Tynen, 11 Wall. 88, 92, viz.: 'When there are two acts on the same subject, the rule is to give effect to both, if possible. But if the two are repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was a substitute for the first act, it will operate as a repeal of that act;' and he relies upon the decision in that case, and the decisions in Eckloff v. District of Columbia, 135 U.S. 240, 242, 243, 10 S.Ct. 752, and District of Columbia v. Hutton, 143 U.S. 18, 12 S.Ct. 369, to support his contention that section 8 of the special charter is repealed by the later acts referred to.

In U.S v. Tynen two acts relating to the subject to violations of naturalization laws had been passed at different dates. The later provided for all the violations referred to in the earlier, but imposed different or additional penalties therefor, and contained new provisions. In Eckloff v. District of Columbia, congress had passed an act in 1861 creating a metropolitan police system for that district and establishing a board, which was given control of the police force, but was prohibited from removing policemen except for cause and after hearing. In 1878 congress passed an act entitled 'An act providing a permanent form of government for the District of Columbia,' which vested the general administration of the affairs of the district, including the control of the police, in a commission, abolished the former police board, and gave the commission the power to remove policemen without cause or hearing. The supreme court held that the act of 1878 was in the nature of an organic act establishing a permanent government for the district; that it covered the whole subject of the former act, was clearly repugnant to it, and that the earlier act must be deemed to be repealed by the later. In District of Columbia v....