the right of running or operating its engines or cars or sending its employees in the performance of their duties.

The company was obligated to contribute certain sums to the various departments of the relief association and to guarantee the payment of the disability allowances that were provided for. The company offered in defense the above agreement and contracts, the plaintiff having accepted certain benefits in accordance therewith.

The federal employers' liability act of June 11, 1906 (34 Stat., 232), defines the liability of common carriers in the District of Columbia, and this law is constitutional within that jurisdiction. (El Paso & Northeastern Railway Company . Gutierrez, 30 Sup. Ct., 21. See Bulletin No. 86, p. 316.) The third section of this act provides that no contract of employment, insurance, relief benefit, or indemnity for injury or death, or acceptance of payments thereunder, shall be a bar to an action for damages for personal injuries or death; any amount contributed by the employer to any fund or benefit arrangement may be considered, however, in such judgment as may be rendered against the company. The defendant company in this case contended that this provision was unconstitutional and that the contract contained in the relief benefit arrangement was effective as a bar against any proceeding at law by an employee who had received benefits according to the agreement. This view was accepted by the supreme court of the District of Columbia in one of its branches. (See, per contra, Potter . Baltimore & Ohio R. Co., 37 Washington Law Reporter, 466; Bulletin No. 86, p. 310.) The case was taken to the court of appeals of the District of Columbia, where the judgment of the supreme court was reversed and the case remanded for a new trial. Justice Robb, who delivered the opinion of the court, having stated the facts in the case, then took up the question of the constitutionality of the third section, relating to contracts of insurance, etc. On this point he said, in part:

In entering upon a discussion of this point it must be borne in mind that this section was enacted for the supposed purpose of effectuating the provisions of section 1 [defining the liability of common carriers, which have been declared to be constitutional. It must also be borne in mind that the class of employees protected by this act are engaged in a quasi public duty involving extraordinary risks to themselves. The real question, therefore, is not so much whether this section interferes with the right of contract between the carrier and the employee as it is whether such interference is reasonable and necessary to give proper force and effect to the general provisions of the act. Congress having authority to enact section 1 clearly has authority to make the provisions of that section effective by preventing evasions of it. It may be assumed at the outset, as contended by counsel, that contracts like the one under examination, in the absence of statute, are not against public policy; but this concession, in our opinion, falls far short of an admission that Congress was without

justification in assuming that such contracts would have a direct tendency to avoid the main provisions of the act, and unless we are satisfied beyond question that this legislation is in excess of legislative power, it is our duty to sustain it. In other words, having in mind the end which Congress, by this act, sought to accomplish, can we say that the provisions of section 3 have no real and necessary relation to the accomplishment of that end, but, on the contrary, are an arbitrary and needless interference with the right of contract? Unless we are forced to so conclude, then it was competent for Congress to declare the public policy prohibiting defenses based upon such contracts.

In order to become an employee of the defendant railroad company the plaintiff was compelled to enter into this contract. He was also compelled under this contract, during the term of his employment, to contribute $24 per year out of his modest wages toward the relief fund, so called, which sum was to be held in trust for him and his associates for the purposes hereinbefore stated. In other words, it was a condition precedent to his employment that he take out insurance with the company. To be sure, the record shows that the company contributed something toward this relief benefit, if necessary, and guaranteed the payment of benefits, but it was in the interests of the company to do this and it is apparent that the employees pay for practically all they receive under this relief feature. It is true that under this feature the employee might receive benefits for sickness or injury in cases in which the defendant company would be free from responsiblity, but in this case the plaintiff alleges that the defendant company was responsible for his injuries, and the contract of employment requires the employee in all cases to forego his right of action as a condition precedent to the payment of benefits for which he has paid and to which he should be entitled irrespective of his claim for damages based upon the negligence of his employer. Was it not competent for Congress to say that the carrier may not, after determining the amount probably necessary to pay, in accordance with a certain schedule, all damages occasioned by its negligence, compel its employees to make up a fund sufficient for that purpose and then withhold benefits under such fund until the employee releases the carrier from further responsibility? Congress has said, through the medium of section 3, that in such a situation the carrier and the employee do not stand upon an equal footing, and that the acceptance by the employee, under such conditions, of the amount really due him, from the relief fund is not absolutely free from restraint and the undue influence of the employer.

Being in necessitous circumstances the employee is compelled to refuse the money to which he is justly entitled or accept it and waive the right the statute gives him.

Common experience teaches that employees, under such conditions, would be peculiarly liable to the undue influence of the agents of the carrier. Legal evidence of such undue influence was often difficult to obtain. Knowing the situation, knowing the leverage of the carrier, and that the parties would not be on a level, was it not competent for Congress to declare it to be public policy that all releases from liability thus obtained should not avail the carrier? Wherein lies the injustice of the provision? If the carrier has contributed to this relief fund its liability is reduced to that extent. If it honestly

desires to effect a settlement with the employee, irrespective of this contract of employment and upon a new consideration, it may do so, and such a settlement, if free from duress, will be sustained. What it here seeks to do, however, is to be relieved of liability without the payment of a new consideration.

Having in mind not only the purpose of the act of 1906, "but the means of its administration-the ways it may be defeated" and that "legislation, to be practical and efficient, must regard this special purpose as well as the ultimate purpose" (District of Columbia ». Brook, 214 U. S., 138), we conclude that there was justification for the enactment of section 3, and that the responsibility therefore should be permitted to rest where it properly belongs-with Con(Atkin v. Kansas, 191 U. S., 207.) After all, the right of contract is hedged about with many restrictions and must always yield to the common good.

It follows that the judgment must be reversed with costs, and it is so ordered. Cause remanded for further proceedings.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-FEDERAL STATUTE— CONSTRUCTION-Tsmura v. Great Northern Railway Company, Supreme Court of Washington, 108 Pacific Reporter, page 774.-Jyntaro Tsmuro and others were engaged in loading rails on a flat car in the course of the change of new rails for old on a part of the track of the company named. By the alleged negligence of his fellow-workmen. Tsmura was injured, and recovered damages in the superior court of Spokane County. The judgment was based on the federal statute of February 22, 1908 (35 Stat., 65), and was on appeal reversed, on grounds that appear in the following extract from the opinion of the court, as delivered by Judge Crow:

Assuming that the second act approved April 22, 1908, is constitutional, do its provisions apply to the facts of this case? The evidence shows that the respondent with a number of his fellow servants was engaged in loading rails on a flat car; that it was the duty of all these servants to throw the rail on the car at a given signal; that respondent's fellow-servants negligently attempted to throw it before the signal was given, thereby causing his injuries; and that, before loading the rails, respondent and his fellow-workmen had been engaged in changing old rails for new rails on appellant's main line. There is no evidence of negligence on the part of the appellant or any of its servants, other than respondent's fellowservants engaged in the same work with him. It is not shown whether the rails were old or new, where they came from, where they were to be taken, or where the car was to go when loaded. The respondent's theory seems to be that, because the appellant was authorized to, and did at times, engage in interstate commerce, and because the respondent was employed in loading a flat car with rails which had been used or were to be used in the repair of its roadbed in the State of Montana, he was necessarily engaged in interstate commerce within the meaning of the act. We can not assume that every employee of appellant, by reason of his employment, is so engaged.

Appellant may have thousands of employees whose duties do not partake of that character. If the act in question is constitutional, it is so because it applies only to servants engaged in interstate commerce. If it is broad enough to include this case in its provisions, it is in our opinion open to the same objections which rendered the earlier act unconstitutional. If respondent is to avail himself of its benefits, the burden devolves upon him to show that the duties which he was performing while an employee of the appellant were of a character that directly pertained to and were a part of interstate commerce. Νο such showing was made, and appellant's motion for a directed verdict should have been sustained.

The judgment is reversed, and the cause remanded, with instructions to dismiss the action.

HOURS OF LABOR OF EMPLOYEES ON RAILROADS-COMMERCE-REGULATION BY STATE LAW-FEDERAL REGULATION-People v. Erie Railroad Company, Court of Appeals of New York, 91 Northeastern Reporter, page 849.-The point involved in this case was the validity of section 8 of chapter 31 of the consolidated laws of New York, which limits to eight per day the hours of labor of certain employees on railways. This includes telegraph or telephone operators spacing trains under a block system on railroads. An act of Congress of March 4, 1907 (34 Stat., 1415), limits the hours of labor of such employees to nine per day, and the company contended that the federal law was controlling and excluded all state legislation on the subject. This view of the matter was accepted by the appellate division of the supreme court, whereupon the State appealed. The appeal resulted in the reversal of this judgment, and the judgment of the trial court, which was in favor of the validity of the state law, was affirmed. Judge Hiscock delivered the opinion of the court, and having stated the facts, said:

Of course, it is apparent that, if the federal statute saying that a signal-tower operator may not work more than nine hours prevents a State from saying under controlling conditions that he may not work in excess of a lesser number of hours, state legislation of an analogous character on other subjects which readily suggest themselves, such as the proper weight of rails, the safe speed of trains, the necessary proportion of cars to be equipped with air brakes, may be prevented by federal legislation simply prescribing the minimum rule of precaution, and the protection by the State of the safety of its citizens at least rendered more complicated and difficult; for, unless there shall be in the future such a separation of interstate and local traffic as has not yet occurred, and which might be made extremely burdensome to the railroads, it will seldom happen that agencies employed in moving the former will not also be moving the latter, and therefore, if the State is prevented by a federal statute like that before us from adopting additional, but not conflicting, requirements which it deems necessary, it will be unable to insure the safety of local passengers and traffic. And it is obvious that a factor of safety like that in the pres

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 colli-ion 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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