1. It is urged that error was committed in construing the Safety Appliance Act since, when correctly interpreted, the fifteen cars in question were expressly excepted from its requirements. To appreciate the contentions based upon this proposition it is necessary to recur to the text of the original act and the amendments thereto. By the act of March 2, 1893, (c. 196, 27 Stat. 531) it was made unlawful for any common carrier "to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact," (§ 2) or "to use any car in interstate commerce that is not provided with secure grab irons or hand holds in the ends and sides of each car for greater security to men in coupling and uncoupling cars," (§ 4), with the proviso (§ 6) that the prohibitions of the act should not apply to "trains composed of four-wheel cars or to locomotives used in hauling such trains." By the act of April 1, 1896 (c. 87, 29 Stat. 85), the proviso of § 6 was amended as follows: "That nothing in this act contained shall apply to trains of four-wheel cars or to trains composed of eightwheel standard logging cars or to locomotives used in hauling such trains when such cars or locomotives are exclusively used for the transportation of logs." By the amendment of March 2, 1903 (c. 976, 32 Stat. 943) the provisions of the act relating to automatic couplers, grab-irons, etc., were extended and made applicable to "all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the Territories and the District of Columbia, and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith," and to the exceptions from the requirements of the original act and the Amendment of 1896 were added "trains, cars, and locomotives which are used upon street railways."

The contention is that as the trains in which the fifteen cars were hauled were operated over the street railway

tracks from the station in Spokane to the yards of the company, they were "used upon street railways" and were hence expressly exempted from the requirements of the act by the amendment of 1903. This, it is said, results from the unambiguous text of the exception contained in that amendment and is from a two-fold point of view made additionally certain by the context of the act which we have quoted. The argument is that the word "used" in the amendment of 1903 excepting cars, etc., "used upon street railways" must be construed as having the same significance as the same word in the amendment making the act applicable to all cars, etc., "used on any railroad engaged in interstate commerce." From this premise it is insisted that as the latter provision has been construed as enlarging the scope of the act by causing it to embrace all cars used on interstate commerce railroads although at the particular time the cars are employed in intrastate commerce (Southern Railway v. United States, 222 U. S. 20), it must follow that the word "used" in the street railway excepting clause under consideration must have the same construction and therefore exclude from the operation of the act all cars used upon street railways, however temporary such use and however frequent or material may be their use in interstate commerce on other than street railways. Again it is urged that the judgment of the court below can be affirmed only by construing the word "used" in the exception as meaning exclusively used, a construction which, it is said, would be wholly unwarranted in view of the amendment of 1896 excepting from the act certain cars, etc., "exclusively used for the transportation of logs" and the demonstration thereby afforded that if such a meaning had been contemplated by Congress in the amendment of 1903, the word "exclusively" would have been employed. But we think the want of merit in the contentions is clear and the unsoundness of the argument ad

vanced to sustain them apparent. We say this because while it is conceded that the obvious purpose of Congress in enacting the law and its amendments was to secure the safety of railroad employees, and that the amendment of 1903 sought to enlarge and make that purpose more complete, yet it is insisted that the exception in the act should receive such a broad construction as would destroy the plain purpose which caused the act to be adopted. But to so treat the act would be in plain disregard of the elementary rule requiring that exceptions from a general policy which a law embodies should be strictly construed, that is, should be so interpreted as not to destroy the remedial processes intended to be accomplished by the enactment. That the meaning contended for would be in direct conflict with this rule would seem free from doubt, since the inevitable result of sustaining the contention would be to put it in the power of a railroad by operating a train for a trifling distance over tracks within the exception to thereby secure the right thereafter to operate such train over long distances without regard to compliance with the safeguards of the statute which otherwise would be controlling. And this reasoning disposes of the contention deduced from the use of the word "exclusively" in the provision excepting cars used on logging railroads and its absence in the street railway clause, since on the face of the statute the object of both provisions was to exempt both the logging and street railway cars from the operation of the act only when used for logging on the one hand and on street railways on the other, and not to exempt them when not so used.

The suggestion is made in argument that in any event the railroad company was not liable for the penalties because of the difficulty of equipping the twelve cars with grab-irons which would not interfere with the lateral movement of the radial couplers and because the other three cars were so constructed that they could not be

provided with automatic couplers and were used only on the one day because of unusually heavy traffic. But this merely asserts that the statute may be violated with impunity if only the railroad finds its provisions onerous or deems it expedient to do so.

2. It is contended that error was committed in rejecting the testimony of experts offered by the Railroad Company as to the protection afforded to employés by the openings in the buffers at the ends of the twelve cars. Without stopping to point out the inappositeness of the many authorities cited in support of the contention, we think the court was clearly right in holding that the question was not one for experts and that the jury after hearing the testimony and inspecting the openings were competent to determine the issue, particularly in view of the full and clear instruction given on the subject concerning which no complaint is made.

Affirmed.

MR. JUSTICE MCREYNOLDS took no part in the consideration and decision of this case.

CUBBINS v. MISSISSIPPI RIVER COMMISSION.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF MISSISSIPPI.

No. 299. Argued April 24, 1916.—Decided June 5, 1916.

Quare, Whether a suit against the members of the Mississippi River Commission to enjoin them from constructing levees is not really a suit against the United States of which the courts have no jurisdiction without its consent.

An owner of land fronting on the Mississippi River has no right to

complain of the overflow of his land caused by the building of levees along the banks of the river for the purpose of confining the water in times of flood within the river and preventing it from spreading out from the river into and over the alluvial valley through which the river flows to its destination, although keeping the water within the river is to so increase its volume as to raise its level and cause the overflow complained of.

The general right to an unrestrained flow of rivers and streams and the duty not to unduly deflect or change the same by works constructed for individual benefit, qualified by a limitation as to accidental and extraordinary floods, prevail under the Roman Law and also exist in England, and, notwithstanding some contrariety and confusion in adjudged cases, also in this country.

The overflows of the Mississippi River, which the levees objected to by the complainant are designed to prevent, are accidental and extraordinary, and justify the construction of the levees for the purpose of preventing destruction to the valley of the river. The conditions existing in the valley of the river demonstrate that the work of the Mississippi River Commission, and of the various state commissions, in constructing the series of levees from Cairo to the Gulf is for the purpose of prevention of destruction and improvement of navigation by confining the river to its bed and is not for purposes of reclamation.

Congress had power to create the Mississippi River Commission and through it to build levees to improve the navigation of the Mississippi River, and the Government does not become responsible to riparian owners for the deflection of water by reason of such levees. The rights of riparian owners on opposite sides of a stream embrace the authority of both, without giving rise to legal injury to the other, to protect themselves from the harm resulting from the accidental or extraordinary floods, such as occur in the Mississippi River, by building levees if they so desire. Jackson v. United States, 230 U. S. 1.

There is no identity between the great valley of the Mississippi and the flood bed of that river, but the bank of that river is where it is found and does not extend over a vast and imaginary area. Hughes v. United States, 230 U. S. 24.

THE facts, which involve the rights of riparian owners on the Mississippi River and the power of the Federal and state Governments to construct levees along the same and liability resulting therefrom, are stated in the opinion.