207 U.S.

Argument for Defendants in Error.

a right of action for injury is a regulation of commerce, and references in Peirce v. Van Dusen, 78 Fed. Rep. 693, and other cases cited by plaintiff in error, as to the power of Congress to legislate in regard to that subject, are obiter.

The act embraces both interstate and intrastate commerce, proposes to exercise an unconstitutional power over intrastate commerce, the police power of the States, the power of the States to regulate the rights of their citizens inter sese in matters not directly affecting interstate commerce, is inseparable as to its interstate commerce features, and, therefore, must fail in toto.

As to what interstate commerce is, see Sutherland on U. S. Constr. 95; Welton v. Missouri, 91 U. S. 275; Addyston Pipe Case, 175 U. S. 211, 241; License Cases, 5 How. 504, 574, 620, 625; Passenger Cases, 7 How. 283, 400; License Tax Cases, 5 Wall. 462, 470; The Daniel Ball, 10 Wall. 557, 564. As to the coexistence of both interstate and intrastate commerce sec Freight Tax Case, 15 Wall. 232, 277; Hall v. DeCuir, 95 U. S. 485; Lord v. Steamship Co., 102 U. S. 541; Wabash Railway v. Illinois, 118 U. S. 557; Sands v. Manistee River Imp't Co., 123 U. S. 288; Covington Bridge Case, 154 U. S. 204; Greer v. Connecticut, 161 U. S. 519; Kidd v. Pearson, 128 U. S. 1; United States v. E. C. Knight Co., 156 U. S. 1, 12, in which this court said commerce succeeds to manufacture and is not a part of it. And see Hopkins v. United States, 171 U. S. 578; Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 611; Northern Securities Case, 193 U. S. 197, 350.

The act interferes with the police power of the State and while there is an intrastate commerce which Congress cannot regulate, there is also equally removed from the control of the United States the police power of the States which affects commerce and other relations in life, some related to commerce, and others entirely disassociated from it.

Although the limitations of the police power have never been fully defined, the police power of the States falls directly within the effect of this act and will, if the act is conVOL. CCVII-31

Argument for Defendants in Error.

207 U.S.

stitutional, have limitations imposed upon it entirely inconsistent with the exercise of that power as hitherto recognized. The act seeks to control the relations between carriers of interstate commerce and their employés, not merely in matters that affect, but do not burden, interstate commerce, but also in matters which can have no direct bearing upon interstate

commerce.

This court has ever been equally careful to preserve the rights and powers of the States as well as those of the National Government. Osborne v. Florida, 164 U. S. 650; Pullman Co. v. Adams, 189 U. S. 420; Pennsylvania Railroad v. Knight, 192 U. S. 21; Louisville &c. Railway Co. v. Mississippi, 133 U. S. 587, 591; C. & O. Railway v. Kentucky, 179 U. S. 388, 393. So the police power of the State has been sustained where it operated upon articles of commerce after their interstate character had ceased. The States of the Union have the undoubted right to control their purely internal affairs, in doing which they exercise powers not surrendered to the National Government. Leisy v. Hardin, 135 U. S. 100, 123; Mobile v. Kimball, 102 U. S. 691; Escanaba Co. v. Chicago, 107 U. S. 678; Mugler v. Kansas, 123 U. S. 623; Eilenbecker v. District Court of Plymouth County, 134 Ù. S. 31, 40; Chicago, Milwaukee & St. Paul Ry. Co. v. Solan, 169 U. S. 133.

The statement in Smith v. Alabama, 124 U. S. 465, that Congress could legislate on the subject of engineers' examinations was said only in respect of interstate commerce, and can be no authority for the contention that because it was asserted that Congress could in the particular matter legislate in respect of interstate commerce, it could also regulate the carrier in its strictly intrastate commerce activities, and in those matters having no direct relation to commerce. So also Western Union Telegraph Company v. James, 162 U. S. 650; Nashville &c. Railway v. Alabama, 128 U. S. 59; Pennsylvania Railroad v. Hughes, 191 U. S. 477, 489. In Louisville & Nashville R. R. Co. v. Kentucky, 161 U. S. 677, it was held that a state statute prohibiting consolidation of two railroads was not an inter

207 U.S.

Argument for Defendants in Error.

ference with interstate commerce. As to reasonable exercise of state police power, see Gladson v. Minnesota, 166 U. S. 427; Cleveland &c. Railway Co. v. Illinois, 177 U. S. 514, 519; Lake Shore Railway v. Ohio, 173 U. S. 285, 303; Lake Shore Railway v. Smith, 173 U. S. 684, 689; Northern Securities Case, 193 U. S. 197, 382; B. & O. Railroad v. Baugh, 149 U. S. 368, distinguished.

The act is bad in that it proposes not merely to give a right of action for injuries to employés, but determines who the beneficiaries shall be. The beneficiaries are different from those under the law of the State where the death occurred. Congress has no power to regulate the measure of damages or who the beneficiaries shall be. This is within the reserved power of the States.

The cases cited in the brief of the United States as to the rule of damages in the case of injuries on vessels fall under the admiralty and maritime jurisdiction and not under the commerce clause. They have no application to the rules established by this statute. The statute, if constitutional as to any part, is unconstitutional as to other parts and as it is inseparable it is entirely unconstitutional. United States v. Reese, 92 U. S. 214, 221; Trade-Mark Cases, 100 U. S. 82, 98; United States v. Ju Toy, 198 U. S. 253; Illinois Central v. McKendree, 203 U. S. 514; Baldwin v. Franks, 120 U. S. 678, 686; Ballard v. Cotton Oil Co., 81 Mississippi, 507. The rule is the same whether the case be civil or criminal. Conolly v. Union Sewer Pipe Co., 184 U. S. 540, 565. And on this point see also Allen v. Louisiana, 103 U. S. 80; Sprague v. Thompson, 118 U. S. 90, 94; Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601, 635, from which it appears that an act of Congress covering legitimate as well as illegitimate fields of legislation in a single provision cannot be rendered effective by holding it invalid as to the field wherein Congress had no power to legislate. To reject the legislation so far as it is invalid and enforce the remainder would amount to substituting legislation by the court for that by Congress.

Argument for Defendants in Error.

207 U.S.

The act is unconstitutional in that it violates the Fifth Amendment to the Constitution of the United States.

Arbitrary and capricious classification, by which a class of persons is subjected to unusual burdens, is obnoxious either to the Fifth or to the Fourteenth Amendment. If a state statute, it is obnoxious to the Fourteenth Amendinent; if a Federal statute, it is obnoxious to the Fifth Amendment. Both Amendments protect corporations, as well as natural persons, from being deprived of property without due process of law, and, therefore, protect against arbitrary classification. County of San Mateo v. Southern Pacific Railroad, 13 Fed. Rep. 145, 150. The act violates the Fifth Amendment because: It subjects common carriers, engaged in interstate commerce, to different and greater liabilities than others engaged in interstate commerce; it takes away from common carriers defer.scs available to others engaged in interstate commerce; it limits the powers of contract of common carriers, when others engaged in interstate commerce are not so limited in their contracts with their employés; it subjects employés of such.common carriers to a disability in contracting which does not attach to employés of others engaged in interstate commerce, who render a like service under similar conditions.

The right to contract is as well recognized as the right to property and the courts protect it against unlawful restriction. Allgeyer v. Louisiana, 165 U. S. '578; State v. Julow, 129 Missouri, 163; Gillespie v. People, 188 Illinois, 176; State v. Kreutsberg, 114 Wisconsin, 530; People v. Marcus, 185 N. Y. 257, holding state statutes limiting right to contract in regard to labor invalid. See also Wallace v. Georgia &c. Railway Co., 22 S. E. Rep. 579; Brewster v. Miller's Sons Co., 101 Kentucky, 368; Hundley v. L. & N. R. Co., 105 Kentucky, 162; State v. Bateman, 7 Ohio N. P. R. 478; Railroad Company v. Richmond, 19 Wall. 584.

The burdens cast upon carriers by the act are cast upon all common carriers engaged in interstate commerce without distinction or discrimination. There are many classes of

207 U. S.

Argument for Defendants in Error.

common carriers, as by rail, by water, by telephone, by telegraph, by pipe line, by wagon and otherwise.

There are not the same reasons for the abolition of the fellow-servant rule as to clerks in the auditor's office as there are for its abolition as applied to train operatives.

By due process of law is meant, that if a particular class is to be given particular benefits or subjected to particular burdens or disabilities, there should be some good reason for such classification. Stratton v. Morris, 89 Tennessee, 497, 534.

There is no natural basis for the classification which has been made, but the basis is purely arbitrary and capricious. In order for a classification to be constitutional, it is not only necessary that all persons brought under its influence are treated alike under the same conditions, but it must bring within its influence all who are under the same conditions, and not bring within its influence those who are under different conditions. Mo. Pac. Railway v. Mackey, 127 U. S. 205; Johnson v. St. Paul & Duluth R. R. Co., 8 L. R. A. 419; Ballard v. Oil Co., 81 Mississippi, 507.

Some of the state courts have held employers' liability acts constitutional, even though couched in general language, and applicable to all characters of business, whether hazardous or not, this result being attained in most instances by construing such statutes, notwithstanding their general language, to apply only to hazardous occupations; but such construction is not countenanced by the Federal authorities. Lochner v. New York, 198 U. S. 45, 59.

This court, when not bound by a limiting state court construction, will investigate for itself the reasonableness of a classification, made by a state legislature, and unless the classification is natural and reasonable, will hold the act void. It will undoubtedly exercise the same power when an act of Congress is before it. Gulf, Colorado & Santa Fé R. R. Co. v. Ellis, 165 U. S. 150; Atchison &c. Railroad v. Matthews, 174 U. S. 96.