Argument for Plaintiff in Error. 207 U.S. of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable; and as to whatever ground shall be covered by those directions, the exercise of the state power is excluded. Congress may establish police regulations, as well as the States; confining their operations to the subject over which it is given control by the Constitution. Cooley's Const. Lim. (7th ed.), 856 and see Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 215; Champion v. Ames (Lottery Cases), 188 U. S. 321. For the purpose of regulating commerce Congress can exercise the power of eminent domain. Luxton v. Bridge Company, 153 U. S. 525. Congress by the act of June 11, 1906, has placed an additional burden on interstate common carriers and thus on interstate commerce and this brings the act clearly within the commerce clause of the Constitution. Hall v. De Cuir, 95 U. S. 485, 488. See message of President Roosevelt, December 5, 1906. The Employers' Liability Act is a regulation of interstate commerce. It places the cost of certain classes of injuries to employés uniformly upon the interstate common carrier. If each State is allowed to say for itself whether or not the cost is to be borne by the interstate common carrier or by the family of the servant, it is apparent that common carriers passing through certain States with no liability acts will have an unnatural advantage over those not so situated. This uniformity is desirable. Railroad Company v. Baugh, 149 U. S. 368. There should be no unnatural elements such as might be created by particular state laws or constructions by state courts placed upon the fellow-servant rule to vary the element of liability for injuries to employés in the general problem of the costs of interstate commerce. The Federal liability act will secure better and safer service. The fellow-servant doctrine was based in part on a view that the best service was obtained by placing the cost of certain negligence on the servant. Priestly v. Fowler, 3 M. & W. 1; Murray v. South Carolina R. R. Co., 1 McMull L. (S. Car.) 207 U. S. Argument for Plaintiff in Error. 385; S. C., 36 Am. Dec. 286; Farwell v. Boston &c. R. R. Co., 38 Am. Dec. 339; Sullivan v. Mississippi &c. R. Co., 11 Iowa, 421; Union Pacific R. R. Co. v. Erickson, 41 Nebraska, 1. Congress now takes the view that better service will be secured by the rule of liability established by the act of June 11, which is similar in its scope to the Safety Appliance Act. 27 Stat. L. 531; Chicago &c. R. R. Co. v. Ross, 112 U. S. 377. That is constitutional. Kansas City &c. R. R. Co. v. Flipps, 138 Alabama, 487. It has been construed in Johnson v. Southern Pac. Co., 117 Fed. Rep. 462; affirmed 196 U. S. 1, and in Chicago &c. R. R. Co. v. Voelker, 129 Fed. Rep. 526; S. C., 116 Fed. Rep. 867. The form of the rule or statute regulating interstate commerce is within the discretion of Congress. To effect this end of uniformity Congress may use such means as it may deem appropriate. McCulloch v. Maryland, 4 Wheat. 316, 421, 423. An act of Congress to be within its power to regulate commerce need not upon its face, expressly prescribe a rule for carrying on commercial intercourse among the States. The rule may be prescribed by implication. A law which may reasonably be calculated to further the freedom, uniformity and safety of commerce, or its instrumentalities, prescribes a rule for carrying on commerce within the scope of the power to regulate commerce among the States. The act shows by its title and in its body that it applies to interstate commerce, and it is not framed so that its provisions are applicable alike to all commerce. The court will not broaden the statute by construction to include an employé of an interstate common carrier, who is concerned wholly in that part of the carrier's business which is intrastate, for the purpose of then holding the entire act unconstitutional. It will rather hold in a proper case that such an employé is not within the view of the act. Kansas v. Smiley, 65 Kansas, 240; S. C., 196 U. S. 447. State statutes relating to commerce which are in terms so general that interstate as well as intrastate commerce may be included are construed to include only what the legislature Argument for Plaintiff in Error. 207 U.S. might lawfully include in them. 17 Am. & Eng. Ency. of Law (2d ed.), 76; Louisville &c. Ry. Co. v. Mississippi, 133 U.S. 587. An act will be so construed f possible, as to avoid conflict with the Constitution althougl. such a construction may not be the most obvious or natural one. The courts may resort to an implication to sustain a statute, but not to destroy it. Atlantic City Water Works Co. v. Consumers' Water Co., 44 N. J. Eq. 427; 1 Sutherland, Stat. Const. (2d ed.), § 298, p. 584; Opinion of the Justices, 41 N. H. 555. A statute will not be held unconstitutional merely because there may be persons to whom or cases in which, it cannot constitutionally apply; but it is deemed constitutional and to be construed not to apply to the latter persons or cases, on the grounds that courts are bound to presume that the legislature did not intend to violate the Constitution. And see The Trade-Mark Cases, 100 U. S. 82. The attempt to justify the act under the commerce clause was an afterthought; but in this case the phraseology of the act plainly indicates under what clause of the Constitution Congress assumed to act. Illinois Central R. Co. v. McKendree can also be distinguished. The construction of the Liability Act now contended for here has been given the Safety Appliance Act in Johnson v. Southern Pac. Co., 196 U. S. 1. The wording of this act is open to all the objections that counsel urge against the act under consideration. If the car or engine in a particular case is not engaged as an instrumentality of interstate commerce, then the Safety Appliance Act will not be enforced But in the cases at bar, all the employés and trains concerned were engaged in interstate commerce, and the right of the plaintiff to recover is clearly within the terms of the act. The "fellow-servant" rule as followed by the Federal courts is a rule of judicial decision and construction. The act of June 11, 1906, changes this rule of determining liability. The power to determine such rules as the Federal courts shall follow has always been exercised by Congress. 207 U.S. Argument of Attorney General. The Attorney General as amicus curia by leave of the court upon the constitutionality of the Employers' Liability Act, with whom Mr. William R. Harr, Special Assistant to the Attorney General, was on the brief: The act was a natural and logical step from the Safety Appliance Act, which required interstate railroads to equip their cars with certain described appliances and abolished the doctrine of assumption of risk on the part of employés in the case of their failure to do so. The acts of March 3, 1901, 31 Stat. 1446; of June 30, 1906, 34 Stat. 838; of March 4, 1907. 34 Stat. 1415, all relating to the relation of employers and employés engaged in interstate commerce are all part of a general scheme by Congress to lessen the dangers of railroad transportation. to those engaged in or connected therewith. If this statute is unconstitutional, it is difficult to see how, on principle, the other measures referred to can be sustained. See also the President's annual messages of December 6, 1904, 39 Cong. Rec. 11; of December 5, 1905, 40 Cong. Rec. 93; Johnson v. Southern Pacific Co., 196 U. S. 1. As to the question of public policy involved in maintaining the fellow-servant rule see McKinney on Fellow Servants, § 10; Priestley v. Fowler, 1837, 3 M. & W. 1; Hutchinson v. York &c. Ry. Co., 1850, 5 Exch. 341; McMurray v. So. Car. R. R. Co., 1838, 1 McMullan, *385; Ryan v. Cumberland Valley R. R. Co., 1854, 23 Pa. St. 384; Farwell v. Boston &c. R. R. Co., 1842, 4 Metc. 49, 57. But see also Schlemmer v. Buffalo R. & P. Ry. Co., 205 U. S. 1; 2 Labbatt on Master & Servant, chaps. 36-40, and the acts of Parliament of 1881, 1897 and 1902; Cooley on Torts, 542, 545. The Parliament of England and many of the state legislatures of this country, however, have not acquiesced in the views as to the requirements of public policy entertained by the courts that have created and extended the fellow-servant doctrine, so far, at least, as the more hazardous employments, and particularly railroading, are concerned. It also appears that other European countries, including France, Germany Argument of Attorney General. 207 U. S. and Austria, are in accord with the more enlightened views on this subject. Many States have legislated on the subject, modifying the common law rule. See the acts of Georgia of 1855; of Iowa in 1862; of Kansas in 1874. The English Employers' Liability Act of 1880-1881 has been followed, more or less closely, by Alabama in 1884; Massachusetts in 1887; Colorado in 1893; Indiana in 1893; New York in 1902. The statutes of these States do not limit the amount of recovery. The following States have also materially modified or abolished the fellow-servant doctrine: Ohio in 1890; Mississippi in 1890; Texas in 1891; Arkansas in 1893; South Carolina in 1895; North Carolina in 1897; Utah in 1875; Wisconsin in 1889. And see sustaining this legislation: Chicago &c. R. R. Co. v. Ross, 112 U. S. 377, 382; Shearman & Redfield on Negligence (5th ed.), § 178. See also Lovell v. Howell, L. R. 1 C. P. D. 161, 167; Ziegler v. Danbury &c. R. R. Co., 52 Connecticut, 543, 556; Crispin v. Babbitt, 81 N. Y. 516, 528. As the enforcement or abrogation of the rule is a matter of public policy, and necessarily a matter for the consideration and control of the legislature under our governmental systems, to whom matters of public policy are primarily committed, Congress is the proper authority to determine what public policy requires with reference to common carriers engaged in interstate commerce. State legislation modifying or abolishing the common law doctrine of common employment and assumption of risk has been uniformly sustained by the state and Federal courts, as a proper exercise of the police power. Mo. Pac. Ry. Co. v. Mackey, 127 U. S. 205, 208; Minneapolis Ry. Co. v. Herrick, 127 U. S. 210; Chicago &c. R. R. v. Pontius, 157 U. S. 209; Baltimore & Ohio Railway v. Voight, 176 U. S. 498; McGuire v. C., B. & Q. Ry., 108 N. W. Rep. (Iowa) 902, 908; Hancock v. Railway Co., 124 N. Car. 222, upholding fellow-servant law of |