verdict for the administratrix was affirmed by the Supreme Court. 167 N. Car. 433.

Plaintiff in error maintains that the trial court erred in overruling its motion to dismiss and also relies upon objections to the charge. Counsel for defendant in error claim all instructions were correct and insist that the verdict is adequately supported by evidence. Concerning the latter they say:

"On the testimony and the law applicable to the case the jury could have arrived at the following conclusions: "1. That there was an unobstructed view of more than 1,200 feet from the danger signals and the place the intestate was struck.

"2. That the red and white lights were on the track. This was undisputed.

"3. That it was the duty of the engineer to keep a lookout for danger signals.

"4. That the fact the train approached about 1,300 feet distant around a curve did not excuse the engineer from keeping a lookout down the track.

"5. That the lights on the track could in fact be more easily seen when they were in the darkness and out of the direct rays of the headlight as the train was entering the straight track from the curve.

"6. That in the exercise of ordinary care the engineer could have seen the lights at a point more than 1,200 feet distant.

"7. That the engineer should have blown his signal as soon as he saw the danger signals, or by the exercise of ordinary care could have seen them, which was when he was more than 1,200 feet distant.

"8. That instead of bringing his train under control and trying to stop it as soon as he saw, or by the exercise of ordinary care could have seen, the lights the engineer waited until he saw the intestate lying beside the track.”

As the action is under the Federal Employers' Liability

Act, rights and obligations depend upon it and applicable principles of common law as interpreted and applied in Federal courts. Seaboard Air Line v. Horton, 233 U. S. 492; Central Vermont Ry. v. White, 238 U. S. 507; Great Northern Ry. v. Wiles, 240 U. S. 444.

Negligence by the railway company is essential to a recovery; and there is not a scintilla of evidence to show this under the most favorable view of the testimony urged by counsel for defendant in error. When it first became possible for the engineer to see signal lights 1254 feet away he had a right to suppose the brakeman was standing there on guard. Immediately, he says, the customary signal was sounded. No duty to the brakeman demanded an instant effort to stop the train-the indicated danger was more than half a mile away. Moreover, application of emergency apparatus on that moment, it appears, would not have caused a stop in time to prevent the accident. There is no evidence that the engineer could have seen the brakeman a single moment before he did or omitted thereafter to do all within his power.

We think the motion to dismiss should have been granted. The judgment below is accordingly reversed and the cause remanded to the Supreme Court of North Carolina for further proceedings not inconsistent with this opinion.

Reversed.

Argument for Plaintiff in Error.

241 U. S.

BRAZEE v. PEOPLE OF THE STATE OF
MICHIGAN.

ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.

No. 402. Argued April 6, 1916.-Decided May 22, 1916.

A State, exercising its police power, may require licenses for employment agencies and prescribe reasonable regulations in respect to them to be enforced according to the legal discretion of a commissioner.

The provisions in Public Act No. 301 of Michigan of 1913, imposing a license fee to operate employment agencies and prohibiting employment agents from sending applicants to an employer who has not applied for labor, are not unconstitutional as depriving one operating an employment agency of his property without due process of law or as denying him the equal protection of the laws. Provisions in the statute limiting fees that may be charged by those licensed thereunder are severable, and might, if unconstitutional, be eliminated without destroying the statute.

The validity of severable provisions of the statute involved in this case not having been raised by the charge against one violating it, and not having been considered by the court below, has not been considered by this court.

183 Michigan, 259, affirmed.

THE facts, which involve the constitutionality under the Fourteenth Amendment of Public Act No. 301 of 1913 of Michigan, imposing licenses on the conducting of employment agencies, are stated in the opinion.

Mr. Proctor Knott Owens for plaintiff in error:

The provision in § 5 of the statute is unconstitutional in that it abridges the right and

a denial of due process of law.

liberty to contract, and is

The whole act is uncon

stitutional under the Fourteenth Amendment.

The penalty provisions of the statute are unconstitutional.

The facts are reviewable by this court.

The case is one of unjust discrimination.

For applicable cases on the Fourteenth Amendment see, Dingeman v. Lacy, 180 Michigan, 129; Butchers Union v. Crescent Live Stock Co., 111 U. S. 746; Chicago v. Umpff, 45 Illinois, 90, 92; Ex parte Dicky, 144 California, 234; In re Grice, 79 Fed. Rep. 627; In re Chaddock, 75 Michigan, 527; Kelleyville Coal Co. v. Harrier, 207 Illinois, 624; Leep v. Railway Co., 38 Arkansas, 407; Brown v. Cook County, 84 Illinois, 590; Matthews v. The People, 202 Illinois, 389; McQuinlan, Municipal Ordinance, 193; Missouri v. Loomis, 115 Missouri, 307; Ohio Life Ins. Co. v. De Bolt, 16 How. 431; People v. Gilson, 109 N. Y. 389; Valentine v. Berrien County, 124 Michigan, 664; People v. Wilson, 249 Illinois, 195; Scowden's Appeal, 96 Pa. St. 422; Spring Valley Water Co. v. San Francisco, 165 Fed. Rep. 667; Maine v. Mitchell, 97 Maine, 66; State v. Moore, 113 N. Car. 697; State v. Sheriff, 48 Minnesota, 236; San Antonio v. McHaffy, 96 U. S. 315; Spokane v. Macho, 51 Washington, 322; Tugman v. Chicago, 78 Illinois, 405; Moore v. St. Paul, 48 Minnesota, 332; William v. Mayor, 2 Michigan, 568; Yick Wo v. Hopkins, 118 U. S. 356.

Mr. Grant Fellows, Attorney General of the State of Michigan, with whom Mr. David H. Crowley was on the brief, for defendant in error.

MR. JUSTICE MCREYNOLDS delivered the opinion of the court.

Brazee having taken out a license to conduct an employment agency in Detroit under Act 301, Public Acts of Michigan, 1913, was thereafter convicted upon a charge of violating its provisions by sending one seeking employment to an employer who had not applied for help. He claimed the statute was invalid upon its face because in

conflict with both state and Federal Constitutions, and lost in both trial and Supreme Courts. 183 Michigan, 259. Now he insists it offends that portion of the Fourteenth Amendment which declares, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The general purpose of the act is well expressed in its title "An Act to provide for the licensing, bonding and regulation of private employment agencies, the limiting of the amount of the fee charged by such agencies, the refunding of such fees in certain cases, the imposing of obligations on persons, firms or corporations which have induced workmen to travel in the hope of securing employment, charging the Commissioner of Labor with the enforcement of this act and empowering him to make rules and regulations, and fixing penalties for the violation hereof." It provides: Sec. 1. No private employment agency shall operate without a license from the Commissioner of Labor, the fee for which is fixed at $25 per annum except in cities over two hundred thousand population, where it is $100; this license may be revoked for cause; the Commissioner is charged with enforcement of the act and given power to make necessary rules and regulations. Sec. 2. A surety bond in the penal sum of one thousand dollars shall be furnished by each applicant. Sec. 3. Every agency shall keep a register of its patrons and transactions. Sec. 4. Receipts containing full information regarding the transactions shall be issued to all persons seeking employment who have paid fees. Sec. 5. "The entire fee or fees for the procuring of one situation or job and for all expenses, incidental thereto, to be received by any employment agency, from any applicant for employment at any time, whether for registration or other