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ent federal statute adapted as we must assume to average conditions prevailing throughout the country often will be quite insufficient under the special conditions prevailing in a given State.
Passing these general considerations, when we seek for authorities on the question whether the federal statute is exclusive and preventive of the state statute, no decision by the Supreme Court of the United States is found rendered upon facts so similar to those here presented as to make it clearly and manifestly controlling.
The Judge then reviewed cases in which state laws relating to the inspection of live stock for interstate shipment were upheld, although there were no federal laws on the subject; also the law requiring locomotive engineers to be examined before receiving appointment for service within the State. Continuing, Judge Hiscock said:
It would seem to me that, within the authority of these cases and of what was said in deciding them as above quoted, it may be held that, where Congress has prescribed a general minimum limit of safety applicable to average conditions throughout the country in the movement of interstate traffic, a state statute does not trespass upon forbidden territory and become obnoxious because, in response to special conditions prevailing within its limits, it has raised such a limit of safety. There is no conflict; the State has simply supplemented the action of the federal authorities. It is the same as if Congress had enacted that the classes of employees named might be employed for nine hours or less, and the State had then fixed the lesser number, which was left open by the federal statute. The form of the latter fixing the outside limit, but not expressly legalizing employment up to that limit, fairly seems to have invited and to have left the subject open for supplemental state legislation if necessary. Such is the view which this court has taken on another occasion in the decision of a question quite identical with that here presented.
The case of Fitch e. Livingston, 4 Sandf. (N. Y.) 492, was brought on a bond given for the purpose of discharging a vessel which had been attached as the result of a collision occurring in the Hudson River. The question involved in the action pertained to the negligent management of the vessel for which the bond had been given, and this alleged negligence consisted in noncompliance with the statute of the State requiring such a boat in the nighttime to carry and show two lights, one at the bow and the other at the stern. The offending vessel was engaged in interstate business, and the court said: "The great point of the defense is that the propeller was not bound to carry more than one light, because she was a vessel owned in another State, navigating a river subject to the jurisdiction of Congress, under a national enrollment and license. The act of Congress of July 7, 1838, makes it the duty of the master and owner of every steamboat running between sunset and sunrise to carry one or more signal lights." And the court discussed at considerable length and with much care the question whether a federal statute requiring a boat to show at least one light barred the state statute requiring it to show two lights, and it was held "that the addition of a further qualification is not in direct collision with a law prescribing the first qualification. The act of Congress does not provide that it shall be sufficient for a steamboat navigating at night to be equipped with one light
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only, or that, if so equipped, she shall be at liberty to navigate all waters, whether inland or on the coast. The act of Congress of 1838 requires certain safeguards to be observed by steamboats, one of which is that they shall show at night at least one light. A State, finding those safeguards insufficient within its waters, adds others which are necessary to preserve life and property. There is no direct conflict." The judgment in this case, although not reported, was subsequently affirmed by this court without opinion (January 14, 1853). Furthermore, when a libel springing out of this same collision came before the circuit court of the United States for consideration (The Santa Claus, 21 Fed. Cas. 406, No. 12326), the court took ring into consideration the fact that the vessel engaged in interstate travel did not show two lights notwithstanding that the federal statute only required one. While this view was predicated on common-law principles instead of on the state statute referred to, it would seem indirectly to be authority for the proposition that the state statute in accordance with the rules of safety and necessity requiring two lights. would have been held valid notwithstanding the federal statute.
We do not, of course, overlook the fact that the court of last resort in four of our sister States upon the precise question here involved has adopted a different conclusion than the one we are reaching (State . Chicago, etc., Ry. Co., 136 Wis. 407, 117 N. W. 686, [Bulletin No. 80, p. 146]; State v. Mo. Pac. Ry. Co., 212 Mo. 658, 111 S. W. 500, [Bulletin No. 80, p. 144]; State v. Texas, etc., Ry. Co. [Tex. Civ. App.] 124 S. W. 984; State . No. Pac. Ry. Co., 36 Mont. 582, 93 Pac. 945, [Bulletin No. 77, p. 382]), but necessarily, in the absence of what we regard as adverse controlling authority of the Supreme Court of the United States, we follow the views of our own court as above cited.
HOURS OF LABOR OF EMPLOYEES ON RAILROADS-FEDERAL STATUTE-PERIODS OF SERVICE AND REST-CONSTRUCTION OF STATUTE— Atchison, Topeka and Santa Fe Railway Company v. United States, United States Circuit Court of Appeals, Seventh Circuit, 177 Federal Reporter, page 114.-The company named was convicted of a violation of the act of Congress of March 4, 1907 (34 Stat., 1415), which limits the hours of labor of employees engaged in the movement of trains engaged in interstate commerce. Certain operators and train dispatchers were on duty from 6.30 a. m. to 12 m. and from 3 p. m. to 6.30 p. m., others working a like number of hours during the night. It was held in the court below that this violated the provision of the law limiting to nine hours per day the hours of service of such employees, on the view that continuous service was intended. This view the court of appeals rejected, as appears from the following extract from the opinion, which was delivered by Judge Grosscup:
The statute was passed with custom as a background. According to custom, nine hours' work unquestionably means nine hours' actual employment, whether broken by an intermission for lunch or on account of some other occasion. According to custom, too, especially in
railroading in the new Western States, the actual service of employees is divided, necessarily divided, throughout the day, to correspond with the arrival and departure of trains. Certainly, Congress did not intend to override these existing customs; making it necessary either that the railroad company should not give intermissions, or that the employee should be paid notwithstanding the intermissions; and making it necessary at many stations (presumably well known to Congress) that the railroad company should either employ a different telegraph operator for every train that came and went (trains on western roads being often more than nine hours apart), irrespective of the fact that the actual service for each train was a very short period of time. The contention of the Government gives to this word "period," all things considered, a highly strained meaning. Disregarding a meaning so strained, and reading the word in connection with the context, and in the light of ordinary custom, we are clear that the acts proven do not constitute an offense within the meaning of the law. And, if it be objected that under this construetion of the law, it would be possible for the railroad company to require its operators to give their service for short periods at short intervals, say every alternate hour, or an hour in every two hours and a half, thus so spreading his actual service over the twenty-four hours that no opportunity would be given for real recuperation, the answer is that no instance of such practice has been brought to our attention, and no such instance is likely, which accounts for the fact that no provision in the act is made for such instances. When such practice actually occurs, Congress will doubtless provide a cure. A further answer is that despatchers, being "employees," come under the protection of the main part of the section which gives to all employees at least eight consecutive hours off duty in each day, counting from some point in the next day.
The judgment of the district court is reversed and the cause remanded, with instructions to grant a new trial.
HOURS OF LABOR OF EMPLOYEES ON RAILROADS VIOLATION BY EMPLOYEES AS AFFECTING CLAIMS FOR DAMAGES-STATE AND FEDERAL REGULATION-Lloyd v. North Carolina Railroad Company, Supreme Court of North Carolina, 66 Southeastern Reporter, page 604.-W. F. Lloyd, a fireman in the employment of the company above named, sued to recover damages for injuries received by him in the course of his employment. It appears that Lloyd had been employed continuously for a period of twenty-three hours, without opportunity for sleep or proper nourishment, and that he was directed by his superior to leave the engine and go to a designated place for food. The train was not stopped for either leaving or returning to it, and in the effort to regain his place Lloyd fell, as a result, it was alleged, of his exhausted condition, and suffered such injuries as to necessitate the amputation of a leg, besides other injuries. The presence of a pile of rock for ballast near the track was held also to contribute to the danger and to be negligence on the part of the company. The
action was based principally, however, on a statute of the State which prolibits the employment of trainmen for more than sixteen hours out of twenty-four; the statute also makes it an offense punishable by fine or imprisonment for trainmen to work more than the prescribed number of hours.
Judgment had been rendered in Lloyd's favor in the superior court of Orange County, from which the company appealed, securing a reversal of the judgment of the lower court, on grounds that appear in the following extracts of the opinion as delivered by Judge Hoke, Judge Clark dissenting. The question of negligence in placing the pile of ballast near the track was decided adversely to the plaintiff, but this was of secondary importance, since the statute named was the chief factor in the case. There was also some consideration of the relation to the state law and the federal statute on the same subject, enacted the same day, but not operative until one year thereafter.
Judge Hoke first referred to the state law of March 4, 1907, prohibiting employment for more than sixteen hours and penalizing service in excess of that time, and, continuing, said:
Under and by virtue of this statute, which was then in force, we are of opinion that, on the facts as now stated in the complaint, no recovery can be had.
It is very generally held, universally so far as we are aware, that an action never lies when a plaintiff must base his claim, in whole or in part, on a violation by himself of the criminal or penal laws of the State. In 1 Waite's Actions and Defenses, page 43, the principle is broadly stated as follows: “No principle of law is better settled than that which declares that an action can not be maintained upon any ground or cause which its law declares to be illegal," citing Davidson 2. Lanier, 4 Wall., 447; 18 L. Ed., 377 [etc.]. Nor is the principle, in its application to this case, impaired or in any way affected by reason of the allegation that the plaintiff was acting under the orders of defendant, for an agent can not justify illegal conduct by showing that he was acting under orders of his principal. True, there is a class of cases which hold that a plaintiff will not always be considered in pari delicto, and barred of recovery on that account, when a statute in its prohibitive feature operates only on one of the parties and is evidently enacted for the protection of the other. As stated by Clark in his work on Contracts, page 336: “Parties are not to be regarded as being in pari delicto where the agreement is merely malum prohibitum and the law which makes it illegal was intended for the protection of the party seeking relief." While the well-being of the railroad employees was no doubt one of the motives which induced this legislation, the statute was also enacted for the benefit and protection of the public, and the principle just referred to, stated as one of the exceptions to the general rule, has no application to the case presented here, when the claimant must allege his own violation of the criminal law as the basis for his claim.
It was further suggested that Congress had enacted a statute (act Mar. t. 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1909, p. 1170]) prohibiting railroads from requiring or permitting train crews on trains engaged in interstate commerce to work more than sixteen consecutive hours, etc., the statute having been enacted March 4, 1907, to become operative March 1, 1908, and that the enactment of such a law would render the state legislation in question of none effect; but that view does not obtain with us. If it be conceded that the act of Congress in its present form is a valid law, we have held that such legislation does not impair or affect state legislation unless the federal law is in operation, and is prohibitive in its terms, or in some way affects the very question which the state legislation undertakes to regulate and control. (Reid & Beam . Railroad, 130 V. C., 753, 64 S. E., 87.) And further, under the doctrine announced and upheld in Smith . Alabama (12+ U. S. 165, 8 Sup. Ct., 564, 31 L. EI., 508), it would seem that the state legislation on this subject would be upheld, notwithstanding the existence of the federal statute referred to, this being a matter which both sovereignties may supervise at one and the same time, at least when there is no necessary conflict between them.
We are of opinion, as stated, that no valid cause of action is stated in the complaint, and the same must be dismissed.
HOURS OF LABOR OF WOMEN-POLICE POWER-CoxSTITUTIONALITY OF STATUTE—IV. ('. Ritchie & Company r. Wayman, Supreme Court of Illinois, 91 Vortheastern Reporter, page 695.-John E. Wayman, state's attorney for Cook County, Ill., and Edward T. Davies, chief state factory in-pector, undertook to enforce against W. C. Ritchie & Co. a law of the State of Illinois (Laws of 1909, p. 212) restricting the hours of labor of female employees to ten in any one day. The company procured an injunction against the enforcement of this law on the ground that it was mconstitutional. On the appeal to the supreme court of the State the constitutionality of the law was upheld and the decree reversed. W. C. Ritchie & Co. are manufacturers of paper boxes and employ considerable numbers of women, whom they employed more than ten hours per day, particularly during the rush season. There was, therefore, no discussion as to facts, the case turning entirely on the question of the constitutionality of the statute in question.
The opinion of the court was delivered by Julge Hand, Judge Vickers dissenting. The grounds on which the validity of the statute was upheld are set forth in the following quotations of the opinion as delivered by Judge Hand:
It was concedeid, upon the oral argument by appellants, that if the statute now under consideration had been passed with a view to limit the employment of men in mechanical establishments, fretories or laundries to ten hours during any one day it would be an arbitrary interference with the right of men to contract for their labor, and