law violates the Constitution, and that the, employee for every occupational injury consent of Congress cannot save it, is occurring within the state, mar the proper reached solely by a process of deduction. harmony and uniformity of the assumed The chain of reasoning involved is a long general maritime law in its interstate and one. The argument is that the grant of international relations, when neither a judicial power to the United States con- ship nor a shipowner is the employer affers upon Congress, by implication, legis- fected, even though the accident occurs on lative power over the substantive maritime board a vessel on navigable waters? The law; that this legislative power in Con- relation of the independent contractor to gress (while not necessarily exclusive) his employee is a matter wholly of state precludes state legislation which "works concern. The employer's obligation to material prejudice to the characteristic pay and the employee's right to receive features of the general maritime law, or compensation are not dependent upon any interferes with the proper harmony and act or omission of the ship or of its ownuniformity of that law in its international ers. To impose upon such employer the or interstate relations;" that there is a obligation to make compensation in case rule of the general maritime law by which of an occupational injury in no way an employer is not liable, except in case affects the operation of the ship. Nor can of negligence, for an occupational injury it affect the shipowners in any respect, occurring on board a vessel; that the rule except as every other tax, direct or inapplies whenever the vessel on which the direct, laid by a state or municipality, injury occurs is afloat on navigable water, may affect, by increasing the cost of living even if the vessel, made fast to a dock, is and of doing business, everyone who has out of commission; that the rule applies occasion to enter it and many who have to occupations which, like upholstering. not. This is true of the application of are not in their nature inherently mari- the Workmen's Compensation Law, time; that the rule governs the relations whether the service rendered by the innot only of the ship and its owners to dependent contractor is in its nature nontheir employees, but also the relations of maritime, [232] like upholstering, or is independent contractors to their employees inherently maritime, like stevedoring. who customarily work on land; that this The requirement by the state is a regu rule is a characteristic feature of the gen-lation of the business of upholstering or eral maritime law; that for a state to stevedoring. It is not a regulation change the rule, even as applied to in- of shipping. It in no respect attempts dependent contractors doing work on craft moored to a dock, temporarily disabled, and normally employed wholly within the state, interferes with the [231] proper harmony and uniformity of the general maritime law in its international and interstate relations; and that, hence, a statute of a state which provides that employers within it shall be liable to employees within it for occupational accidents occurring within it violates the Federal Constitution, notwithstanding the state statute is expressly sanctioned by Congress. Such is the chain of reasoning. Every link of the chain is essential to the conclusion stated. If any link fails, the argument falls. Several of the links are, in my opinion, unfounded assumption which crumbles at the touch of reason. How can a law of New York, making a New York employer liable to a New York powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The conclusion reached by the court emphasizes not the breadth of the congressional power, but the limitations upon it. That the obligation to contribute to the compensation fund may be deemed a tax, to modify, or deal with, admiralty jurisdiction or procedure, or the substantive maritime law. It is but an exercise of the local police power. To impose upon the independent employer the obligation to provide compensation for accidents occurring on a vessel in port, while the vessel is made fast to the dock, in fact, cannot conceivably interfere with the proper harmony and uniformity of the general maritime law in its international or interstate relations. Moreover, it is not a characteristic feature of the general maritime law that the employer, in case of accident, is liable to an employee only for negligence. The characteristic feature is the very contrary. To one of the crew, the vessel and her owners are liable, even in the absence of negligence, for maintenance, care, and wages, at least, so long as the voyage see Mountain Timber Co. v. Washington, 243 U. S. 219, 237, 61 L. ed. 685, 696, 37 Sup. Ct. Rep. 260, Ann. Cas. 1917D, 642, 13 N. C. C. A. 927. 6 Compare New York v. Miln, 11 Pet. 102, 9 L. ed. 618; Hooper v. California, 155 U. S. 648, 39 L. ed. 297, 5 Inters. Com. Rep. 610, 15 Sup. Ct. Rep. 207. of the employer and the employee are held constitutional.11 Why should they not be deemed valid where they provide for accidents occurring within the state, but upon navigable waters? is continued. To him, they are liable, | cident insurance policy. Tort is, in fact, also, even in the absence of negligence, not an element in the liability created by for indemnity or damages if the injury the Workmen's Compensation Law 10 On results from unseaworthiness of the ship, the contrary, the basis of this legislation or from failure to supply and keep in is liability without fault. Nor does the order the proper appliances." The legal Workmen's Compensation Law create a rights, in case of accident to persons status between employer and employee. other than members of the crew, were not It provides an incident to the employdetermined by the maritime law until re- ment which is often [284] likened to a cently. The admiralty court, instead of contractual obligation, even where the extending to these persons this character- Workmen's Compensation Law is not of istio feature, borrowed the rule of negli- the class called called optional. It will gence from the common-law courts, mak- hardly be contended that an act ing modifications conformable to its views occurring beyond the geographical limof justice. its of a state cannot be made the [233] The mere fact that the accident basis for the creation of rights to be is an incident of a maritime contract, and enjoyed or enforced within it. Workthe service performed thereunder is inher- men's Compensation Laws which provide ently maritime, does not preclude the ap- for compensation for injuries occurring plication of the Workmen's Compensation in states other than that of the residence Law. The stevedore can recover under the Workmen's Compensation Law, if the injury happens to occur on land, although the contract of the stevedoring concern is confessedly a maritime one; and the stevedore is employed in a maritime serv- A further assumption is that Congress, ice quite as much while he is on the dock which has power to make and to unmake as after he crosses the gangplank and the general maritime law, can have no enters the ship. Underlying the whole voice in determining which of its prochain of reasoning by which the conclu- visions require adaptation to peculiar sion is reached that the state and Federal local needs, and as to which absolute unistatutes are unconstitutional will be found formity is an essential of the proper the legally indefensible assumption that harmony of international and interstate the liability under the Workmen's Com- maritime relations. This assumption has pensation Law is governed by the law of no support in reason; and it is inconsistthe locality in which the accident hap-ent (at least, in principle) with the pened; that is, by the rule that, in tort, powers conferred upon Congress in other the test of admiralty jurisdiction is pres- connections. The grant "of the ence on navigable waters. There is no judicial power to all cases of more reason why the mere fact that the admiralty and maritime jurisdiction" is, injury occurs on navigable waters should surely, no broader in terms than the grant make applicable the maritime law to lia- of power "to regulate commerce with bilities arising under the Workmen's foreign nations and among the several Compensation Law, than that it should states." Yet, as to commerce, Congress make the maritime law applicable, in such may, at least in large measure, determine cases, to the liability under a general ac- whether uniformity of regulation is re The Osceola, 189 U. S. 158, 47 L. ed. | 760, 23 Sup. Ct. Rep. 483; Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 66 L. ed. 927, 42 Sup. Ct. Rep. 475. See Atlantic Transp. Co. v. Imbrovek, 234 U. S. 52, 58 L. ed. 1208, 51 L.R.A. (N.S.) 1157, 34 Sup. Ct. Rep. 733; Southern P. Co. v. Jensen, 244 U. S. 205, 221, 222, 61 L. ed. 1086, 1100, 1101, L.R.A. 1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. A. 597. In my opinion, the state law, being sanctioned by Congress, is valid, also, as applied to accidents suffered in port by persons other than the master or member of the crew, even if the persons injured are employees of the vessel or of the owners, and notwithstanding their occupations are inherently maritime, like stevedoring. 10 See Ernest Angell, "Recovery under Workmen's Compensation Acts for Injury Abroad," 31 Harvard L. Rev. pp. 619, 620. See also 37 Harvard L. Rev. p. 375. Compare Pound, "Spirit of the Common Law," 1921, p. 30. 11 Quong Ham Wah Co. v. Industrial Acci. Commission, 184 Cal. 26, 35-37, 39, 44, 45, 12 A.L.R. 1190, 192 Pac. 1021, 255 U. S. 445, 65 L. ed. 723, 41 Sup. Ct. Rep. 373. Compare Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158, 10 N. C. C. A. 888; Anderson V. Miller Scrap Iron Co. 169 Wis. 106, 170 N. W. 275, 171 N. W. 935. See Ernest Angell, supra, 31 Harvard L. Rev. pp. 619, 628, 636. quired or diversity is permissible.12 Like- decisions in Southern P. Co. v. Jensen, wise, Congress is given exclusive power of 244 U. S. 205, 61 L. ed. 1086, L.R.A.1918C, legislation over its forts, arsenals, dock- 451, 37 Sup. Ct. Rep. 524, Ann. Cas. yards, and other needful places and build- 1917E, 900, 14 N. C. C. A. 597; Knickerings. But it may permit the [235] bocker Ice Co. v. Stewart, 253 U. S. 149, diverse laws of the several states to 64 L. ed. 834, 11 A.L.R. 1145, 40 Sup. Ct. govern the relations of men within Rep. 438, 20 N. C. C. A. 635, and later them.1 18 Congress has exclusive power cases, by making them hereafter applito legislate concerning the Army and cable only to the [236] relations of the Navy of the United States, to de- ship to her master and crew. To hold that clare war, to determine to what extent Congress can effect this result by sanccitizens shall aid in its prosecution, tioning the application of state Workand how effective aid can best be men's Compensation Law to accidents to secured. But state legislation directly any other class of employees, occurring on affecting these subjects has been sus- the navigable waters of the state, would tained.14 In respect to bankruptcy, not, in my judgment, require us to overduties, imposts, excises, and naturaliza- rule any of these cases. It would require tion the Constitution prescribes uniform- merely that we should limit the applicaity. Still, the provision in the Bank- tion of the rule therein announced, and ruptcy Law giving effect to the divergent that we should declare our disapproval of exemption laws of the several states was held valid.16 Absolute uniformity in things maritime is confessedly not essential to the proper harmony of the maritime law in its interstate and international relations. This is illustrated both by the cases which hold constitutional state regulation of pilotage and liens created by state laws in aid of maritime contracts, and by those which hold that there are broad fields of maritime activity to which admiralty jurisdiction does not extend. A notable instance of the latter is the liability in tort for injuries inflicted by a ship to a dock, or to maritime workers If the court is of opinion that this act on the dock, engaged in the inherently of Congress is in necessary conflict with maritime operation of stevedoring.16 its recent decisions, those cases should be The recent legislation of Congress frankly overruled. The reasons for doing seeks, in a statesmanlike manner, to so are persuasive. Our experience in atlimit the practical scope and effect of our tempting to apply the rule, and helpful S. 181, 46 L. ed. 1113, 22 Sup. Ct. Rep. 857. See Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 168, 64 L. ed. 831. $42, 11 A.L.R. 1145, 40 Sup. Ct. Rep. 438, 20 N. C. C. A. 635. 12 See Southern P. Co. v. Jensen, 244 U., S. 205, 244-251, 61 L. ed. 1086, 1110-1114, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. À. 597; Clark Distilling Co. v. Western Maryland R. Co. 242 U. S. 311. 61 L. ed. 326, L.R.A. 1917B, 1218, 37 Sup. Ct. Rep. 180, Ann. Cas. 1917B, 845; Re Rahrer, 140 U. S. 545, 564. 35 L. ed. 572, 577, 11 Sup. Ct. Rep. 865. 13 Compare Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 Sup. Ct. Rep. 995; Chicago, R. I. & P. R. Co. v. McGlinn, 114 U. S. 542. 29 L. ed. 270, 5 Sup. Ct. Rep. 1005: Western U. Teleg. Co. v. Chiles. 214 U. S. 274. 53 L. ed. 994, 29 Sup. Ct. Rep. 613: Omaechevarria v. Idaho, 246 U. S. 343, 62 L. ed. 763, 38 Sup. Ct. Rep. 323. 14 Gilbert v. Minnesota. 254 U. S. 325. 65 L. ed. 287, 41 Sup. Ct. Rep. 125. Compare Moore v. Illinois. 14 How. 13. 14 L. ed. 306: Halter v. Nebraska. 205 U. S. 34. 51 L. ed. 696, 27 Sup. Ct. Rep. 419, 10 Ann. Cas. 525. certain expressions used in the opinions. Such limitation of principles previously announced, and such express disapproval of dicta, are often necessary. It is an unavoidable incident of the search by courts of last resort for the true rule.17 The process of inclusion and exclusion, so often applied in developing a rule, cannot end with its first enunciation. The rule as announced must be deemed tentative. For the many and varying facts to which it will be applied cannot be foreseen. Modification implies growth. It is the life of the law. 16 See Southern P. Co. v. Jensen, 144 U. S. 205, 219, 220, 61 L. ed. 1086, 1099, 1100, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. À. 597. 17 Compare, e. g., Sonneborn Bros. v. Cureton (Sonneborn Bros. v. Keeling) 262 U. S. 506, 67 L. ed. 1095, 43 Sup. Ct. Rep. 643. qualifying Texas Co. v. Brown, 258 U. S. 466, 66 L. ed. 721, 42 Sup. Ct. Rep. 375: Bowman v. Continental Oil Co. 256 U. S. 642. 65 L. ed. 1139, 41 Sup. Ct. Rep. 606; Askren v. Continental Oil Co. 252 U. S. 444, 64 L. ed. 654, 40 Sup. Ct. Rep. S. 389, 63 I ed. 662, 39 Sup. Ct. Rep. 355: Standard Oil Co. v. Graves, 249 U. 320, and Baltimore & O. S. W. R. Co. v. Settle. 260 U. S. 166, 173, 67 L. ed. 189, 193. 43 Sup. Ct. Rep. 28, overruling dicta in Gulf. C. & S. F. R. Co. v. Texas. 204 U. S. 403, 51 L. ed. 540, 27 Sup. Ct. Rep. 18 Hanover Nat. Bank v. Moyses, 186 U. 360. discussion by friends of the court, have been adopted. For no Federal Work- 18 See Edgar Tremlett Fell, "Recent Prob- 20 Compare New York C. R. Co. v. Win- Labor Leg. Rev. p. 144; J. P. Coughlin. See 21 See Lee v. Chesapeake & O. R. Co. 260 26 Sup. Ct. Rep. 619, 6 Ann. Cas. 317: upon like action of the court in The Gene- MATTHEW ADDY COMPANY, Petitioner, V. UNITED STATES OF AMERICA. 84.) BENJAMIN N. FORD, Petitioner, V. UNITED STATES OF AMERICA. 85.) (No. (No. (See S. C. Reporter's ed. 239–246). Fuel administration - construction of orders. 1. The order of the President fixing the jobbers' commissions for selling coal must be construed strictly, and without retroactive effect unless clearly indicated. Fuel administration limiting jobbers' commissions - no retroactive effect. 2. The provision in the President's order of August 23, 1917, forbidding coal jobbers to add more than 15 cents per ton to the purchase price for selling it, does not apply to coal purchased before the date of the order. [Nos. 84 and 85.] Argued October 17 and 18, 1923. Decided N WRIT of Certiorari to the United convicting petitioners of violating the See same case below, 281 Fed. 298. Mr. Julius R. Samuels argued the cause, and, with Mr. Nelson B. Cramer, filed a brief for petitioners: The court misconstrued the Executive order upon which the indictment was based, as applied to the undisputed facts. Shwab v. Doyle, 258 U. S. 529, 66 L. ed. 747, 26 A.L.R. 1454, 42 Sup. Ct. Rep. 391; Chew Heong v. United States, 112 U. S. 536, 559, 28 L. ed. 770, 778, 5 Sup. Ct. Rep. 255; White v. United States, 191 U. S. 545, 552, 48 L. ed. 295, 298, 24 Sup. Ct. Rep. 171; Reg. v. Griffiths [1891] 2 Q. B. 145, 60 L. J. Mag. Cas. N. S. 93, 39 Week. Rep. 719, 56 J. P. 87-C. C. R.; United States v. Starr, Hempst. 469, Fed. Cas. No. 16,379; One Truck Load of Whisky v. United States, 274 Fed. 99; United States v. Bathgate, 246 U. S. 220, 62 L. ed. 676, 38 Sup. Ct. Rep. 269; United States v. Weitzel, 246 U. S. 533, 543, 62 L. ed. 872, 874, 38 Sup. Ct. Rep. 381; Lewis's Sutherland, Stat. Constr. § 520; Ex parte Bailey, 39 Fla. 734, 23 So. 552; The Enterprise, 1 Paine, 33, Fed. Cas. No. 4,499. Special Assistant to the Attorney General George Ross Hull argued the cause and filed a brief for respondent: The executive order of August 23, 1917, applied to sales for which the defendants were indicted. United States v. Standard Brewery, 251 U. S. 210, 217, 64 L. ed. 229, 40 Sup. Ct. Rep. 139; Jacob Ruppert v. Caffey, 251 U. S. 264, 301, 64 L. ed. 260, 275, 40 Sup. Ct. Rep. 141; Church of the Holy Trinity v. United States, 143 U. S. Circuit Appeals L. ed. 226, 229, 12 Sup. Ct. the Sixth Circuit to review judgments Note.-On decisions under the Lever Ct. Rep. 506; Pollock v. Farmers' Loan & Rep. 511; United States v. Union P. R. Co. 91 U. S. 72, 79, 23 L. ed. 224, 228; Texas & P. R. Co. v. Interstate Comcan Bank, 144 U. S. 173, 187, 36 L. ed. 390, 396, 12 Sup. Ct. Rep. 559, overruling Rogers v. Burlington, 3 Wall. 654, 18 L. ed. 79, and Mitchell v. Burlington, 4 Wall. 270, 18 L. ed. 350; Leisy v. Hardin, 135 U. S. 100, 118, 34 L. ed. 128, 135, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, overruling Peirce v. New Hampshire, 5 How. 504, 12 L. ed. 256; Morgan v. United States, 113 U. S. 476, 496, 28 L. ed. 1044, 1051. Sup. Ct. Rep. 588, overruling Texas v. White, 7 Wall. 700, 19 L. ed. 227; Legal Tender Cases, 12 Wall. 457, 553, 20 L. ed. 287, 312, overruling Hepburn v. Griswold, 8 Wall. 603, 19 L. ed. 513. 264 U. S. |