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HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

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FEDERAL EMPLOYERS' LIABILITY ACT OF 1908 AS REGULATION OF INTERSTATE COMMERCE. - The regulation of commerce is one of the many topics which are subjected by the federal Constitution to the control of a dual sovereignty. Primarily the alteration of the laws governing commercial intercourse is a branch of the police power of the several states.1 Yet the national Congress is, by the Constitution, empowered to exercise its police power over the same general subject matter with this limitation, that it must confine its exercise solely to such regulation as has some substantial connection with commerce between the states and with foreign nations. With this general principle in view, it would seem that the constitutionality of federal legislation on this subject is dependent almost wholly on a question of fact: May such substantial connection be discovered?

This connection has been discovered in a vast variety of circumstances. It was decided at an early date that Congress could forbid all foreign commerce as a measure of war; and that an act that interfered with interstate and foreign commerce could be made an offense against the United States, in spite of the fact that it was an act which was also subject to the police power of the states. And it is equally clear that Congress does not exceed its powers when it prohibits the carriage of certain 1 City of New York v. Miln, 11 Pet. (U. S.) 102. See Gibbons v. Ogden, 9 Wheat. (U. S.) 1.

2 In re Debs, 158 U. S. 564, 15 Sup. Ct. 900; Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. 821. See Gibbons v. Ogden, supra, 196; COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 856.

3 United States v. The William, Fed. Cas. No. 16,700.

4 United States v. Coombs, 12 Pet. (U. S.) 72.

articles in interstate commerce, or prescribes the terms and liability under which a common carrier shall transport goods from state to state." That certain relations between employer and employees engaged in interstate commerce have some substantial connection with the conduct of this traffic and may be regulated by Congress, is well settled. The Safety Appliance Act of 1893 has been upheld in numerous decisions. The courts have taken notice that the interests of interstate commerce require that the lives and limbs of persons so employed be protected by the use of less dangerous instrumentalities of transportation. So too have they recognized the benefits accruing from the regulation of hours of employment, and restrictions on the payment of wages.9

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In ascertaining whether there is any substantial connection between the operation of a statute and interstate commerce, as in deciding other constitutional questions, the only source of information on the subject matter is the judicial knowledge of the court; and accordingly the diversity of the decisions on these questions must be attributed to the differing attitudes of the courts on complicated matters of fact.10 In the Employers' Liability Cases " the Supreme Court was unable to discover that interstate commerce was benefited by placing an unusual liability on a carrier, simply because it was engaged in interstate commerce to some extent, and therefore the court declared the act of June 11, 1906, unconstitutional. The decision in the Adair Case 12 is another illustration of the same principle, and may also be criticized as evincing a slightly limited knowledge of the actual situation.13 In the recent cases under the Employers' Liability Act of 1908 14 the Supreme Court has taken a liberal view of the situation presented. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169. In upholding the constitutionality of the act, the court, in effect, decided that interstate commerce was beneficially affected, by imposing on common carriers an extraordinary liability to their employees for injuries suffered while engaged therein, even though the source of the injury were some agent of intrastate commerce. Aside from the general principle stated supra, it is difficult to discover in this decision more than a declaration of the court's judicial knowledge of matters with which the statute is concerned.

5 Champion v. Ames, 188 U. S. 321, 23 Sup. Ct. 321.

• Atlantic Coast Line v. Riverside Mills, 219 U. Š. 186, 31 Sup. Ct. 164.

7 Southern Ry. Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2; Wabash R. Co. v. United States, 168 Fed. 1.

8 Baltimore & Ohio R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621.

9 Patterson v. Bark Eudora, supra.

10 Cf. People v. Lochner, 177 N. Y. 145, 69 N. E. 373, and Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539.

11 207 U. S. 463, 28 Sup. Ct. 141. The act, 34 U. S. STAT. AT LARGE, 1906, 232, applied to all employees of a carrier engaged in interstate commerce, whether the employee was so engaged or not.

12 Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277. The act, 30 U. S. STAT. AT LARGE, 1898, 424, c. 370, § 10, made it unlawful to discharge an employee engaged in interstate commerce for being a member of a labor union.

13 See the dissenting opinion of McKenna, J., in Adair v. United States, 208 U. S. 161, 185 et seq., 28 Sup. Ct. 277, 285 et seq.

14 35 U. S. STAT. AT LARGE, 1908, 65, c. 149. This statute, unlike the Act of 1906, applied only to injuries received while engaged in interstate commerce.

THE DE FACTO DOCTRINE. Although it is well settled that the acts of de facto officers are valid from the point of view of third persons,1 there is a diversity of opinion as to whether officers appointed by de facto officers become de jure officers. The early English courts, because of the technical common-law notion of a public office,2 repeatedly held that one claiming to be seised of a public office must show a sound legal right.3 A de facto election could not be a link in the title of a de jure officer.1 But the American courts, regarding an office more as a contract 5 of employment, argue that, as such de facto officers can make binding contracts and pass valid titles, they can also pass incontestible titles to those that they elect. New York, however, follows the former English view. A recent case set aside the election of new directors by the de facto directors of a private corporation.10 Matter of Ringler & Co., 204 N. Y. 30.

The New York court justifies its decision by criticizing the de facto doctrine as a whole. It seems to the court to be "one of those legal makeshifts by which unlawful or irregular corporate and public acts are legalized," " and a principle to be confined within narrow limits. On such a view the officious person is not an officer at all, but in certain cases the court, on principles analogous to estoppel, will work justice between third parties by refusing to permit his title to be questioned. But does

1 Margate Co. v. Hannam, 3 B. & Ald. 266. See 20 HARV. L. REV. 456 et seq.; CONSTANTINEAU, DE FACTO DOCTRINE, § 3 et seq.

2 See 24 HARV. L. REV. 658.

King v. Lisle, Andr. 163.

4 "If you derive title to a corporate office through A., and the prosecutor shew a judgment of ouster against A., it is conclusive against you. . . ." See King v. York, 5 T. R. 66, 72.

5 A few states have allowed de facto officers to recover their salaries on the ground that they are servants of the people. Erwin v. Mayor, etc. of Jersey City, 60 N. J. L. 141, 37 Atl. 732. It also would seem that in America a public office is not property. See 14 HARV. L. REV. 218. But it is quite clear that an office is not such a contract of employment as to be within the constitutional prohibition against impairing the obligation of contract. Butler v. Pennsylvania, 10 How. (U. S.) 402.

6 Attorney-General ex rel. Fuller v. Parsell, 99 Mich. 381, 58 N. W. 335; State ex rel. Mitchell v. Tolan, 33 N. J. L. 195. "Why is the defendant a de facto and not a de jure officer? When the defendant is asked: 'By what authority do you hold the office?' he answers, by the appointment of the Judge of the Superior Court. And when it is replied, but that Judge was only a Judge de facto; the defendant rejoins, that may be so; but all his necessary official acts are valid as to the public and third persons; my appointment was a necessary official act, and therefore, valid; . . .” See Norfleet v. Staton, 73 N. C. 546, 549.

7 Since 1882, by Act of Parliament, elections conducted in England by de facto municipal officers cannot be questioned collaterally. MUNICIPAL CORPORATIONS ACT, 1882 (45 & 46 VICT. c. 50), §§ 42, 102. Canada has always adopted the American view. In re McPherson v. Beeman, 17 U. C. Q. B. (Can.) 99; Lacasse v. Roy, 8 Quebec Super. Ct. (Can.) 293.

8 People ex rel. Steinert v. Anthony, 6 Hun (N. Y.) 142. "Without right himself, he cannot confer any on others." Mayor, etc. of New York v. Flagg, 6 Abb. Prac. (N. Y.) 296, 302.

On this question no distinction is made even in the principal case between a public and a private office. See also 3 THOMPSON, CORPORATIONS, § 3893; 3 Cook, CORPORATIONS, § 713.

10 Werner, J.: "It is in terms a paradox to say that one who owes his election or appointment to an unlawful usurpation of power by another, holds his appointment or election de jure." Matter of Ringler & Co., 204 N. Y. 30, 45.

Matter of Ringler & Co., supra, 42.

such a theory satisfactorily explain the cases? It is well settled that if the office that the assumed officer purports to occupy was created by an unconstitutional statute, and hence does not exist in contemplation of law, all the acts of the assumed officer are open to collateral attack.12 Again, the law is that if the assumed officer does not hold under "color of title" his acts are not valid even with regard to innocent third parties that have had no notice of his want of authority. If, as the New York court contends, the de facto doctrine legalizes unlawful acts for the benefit of innocent third parties, here are two arbitrary limitations that bear no relation to the knowledge of the third parties. No reasons of fairness between the parties can justify such distinctions.

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But the language of the majority of American courts seems to show that they have adopted a more liberal view of the de facto doctrine. However an office is defined,14 all will agree that an officer is an individual to whose acts the law attaches special consequences because of the office that he occupies. Conversely it may be argued that when the law attaches similar consequences to the acts of another individual, it is also proper to call him an "officer." There are thus two kinds of officers, both in a primary sense "lawful," for both are recognized by law. The one kind, duly elected, have many rights, as well as powers and duties; the other kind, becoming officers by their own acts, acquire no rights themselves: no right to remain in office; 15 no right to salary; 16 and no right to do anything that a private individual cannot do. But they do acquire the power to change the rights of others: the power to pass titles to others; the power to make contracts; and now generally the power to elect other officers. They acquire these powers because they have become officers by occupying the office. Hence if no office has been created because of the unconstitutionality of a statute they cannot acquire these powers. Neither can they become officers unless they occupy the office under "color of title" just as a disseisor of land must occupy under claim of right. "Color of title" thus distinguishes true officers, both de jure and de facto, from mere usurpers.

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REMOVAL FOR PUBLIC HEALTH OF DAMS BY POLICE POWER OR EMINENT DOMAIN. - The taking of property by eminent domain for a public use is often almost indistinguishable 1 from such deprivations as are merely results of those regulations under the police power for the protection of public health, safety, or morals which are not burdened with a constitutional requirement of compensation. This is especially true, since a

12 Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121.

13 Norfleet v. Staton, supra.

14 An office has been variously defined as a “right," a "charge," a "permanent trust," an "agency." See 2 BL. COMM. 36; United States v. Maurice, 2 Brock. (U. S.) 96, 102; Matter of Hathaway, 71 N. Y. 238; Chark v. Stanley, 66 N. C. 59.

15 In quo warranto proceedings a judgment of ouster would be pronounced against

a de facto officer. In re Delgardo, 140 U. S. 586, 11 Sup. Ct. 874.

16 See 24 HARV. L. REV. 658.

17 People ex rel. Sullivan v. Weber, 86 Ill. 283.

1 See 25 HARV. L. REV. 389.

2 Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273.

special subject of police regulation, like the public health, may also be the object of an exercise of eminent domain.3 It is clear that, without compensation, property may no more be taken for actual use in the name of public health than for other public purposes. Thus compensation is required for a building taken for use as a hospital," but not for one destroyed to protect public health; for constructing a permanent dike or drain on a dry lot to prevent the unhealthy flooding of other land, but not for digging a drain in the swampy land,' or filling in at the expense of the owner.10

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The test is not whether there is a taking or merely an impairing or destroying, for property may be taken in the proper exercise of the police power, 11 while destruction of one res, incidental to the public use of another, would seem to require eminent domain.12 The distinction most commonly accepted rests upon whether the particular property is affected because of its utility in promoting a projected public use, or because of its participation in causing the public detriment which is regulated or removed.13

In a recent case a statute declaring that a mill-privilege which remained useless without repair for five years should cease, as against the public health, convenience, and welfare, and that commissioners for those purposes might without compensation remove the dam and clean out the watercourse, was held to authorize taking private property for public use without compensation, in violation of the state constitution.14 Kiser v. Board of Commissioners of Logan County, 97 N. E. 52 (Oh.). It seems that the police power may be properly exercised to remove unhealthy conditions by cleaning out a non-navigable stream,15 or by compelling a railroad to modify the opening of its bridge to permit the enlargement of a drain,16 or to compel the owner of a dam to construct a fishway at

3 Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. 43; Matter of Ryers, 72 N. Y. 1. See I LEWIS, EMINENT DOMAIN, § 307.

4 See Chicago, etc. Ry. Co. v. People ex rel. Drainage Commissioners, 200 U. S. 561, 592, 26 Sup. Ct. 341, 350; FREUND, POLICE POWER, § 511.

See Spring v. Inhabitants of Hyde Park, 137 Mass. 554, 559.

Theilan v. Porter, 14 Lea (Tenn.) 622; Ferguson v. City of Selma, 43 Ala. 398.

7 Matter of Cheesebrough, 78 N. Y. 232.

8 Cavanagh v. City of Boston, 139 Mass. 426, 1 N. E. 834. But cf. Commonwealth v. Tewksbury, 11 Met. (Mass.) 55.

• Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389; Griffith v. Pence, 9 Kan. App. 253, 59 Pac. 677.

10 Bliss v. Kraus, 16 Oh. St. 54; Bancroft v. City of Cambridge, 126 Mass. 438. 11 Commonwealth v. Carter, 132 Mass. 12. See 3 HARV. L. REV. 189, 195, note.

12 As where a railroad tears down a building in order to use its site belonging to a different owner. Cf. Kersey v. Schuylkill River, etc. R. Co., 133 Pa. St. 234, 19 Atl. 553.

13 See Philadelphia v. Scott, 81 Pa. St. 80, 85; FREUND, POLICE POWER, § 511; RANDOLPH, EMINENT DOMAIN, § 23.

14 The facts of the case are not reported. The result may be supported on the ground that this particular act is not sufficiently express in limiting the authority to cases of detriment to public health or safety. But although the court does not cite authorities or apparently recognize the difficulty here discussed, its language is broad enough to deny the power of the state to remove dams without compensation under the police power.

15 Brown v. Keener, 74 N. C. 714.

16 Chicago, etc. Ry. Co. v. People ex rel. Drainage Commissioners, supra.

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