The Montgomery advertiser., 1907-01-01
Employers Liability Act
 IS Unconstitutional.
DECISION OF JUDGE EVANS
Kentucky Judge Holds Against
 Congressional Act.
)Intimates washinGton Department ee Justice Erred in Sending . spe- cial District AttoySey-Texf
 of Decision.

Louisville. KY, Dec. s1.--Judgs wa1~ ter Evans in the federal court. today declared the employers liability act un- constitutional The decision was giv- en in the case of the administration Of N c. Brooks. versus the Southern Pa cific Railroad, and is believed to be the first handed down in connection with this act. Judge Evans said in part:
 The attorney general of the United States conceiving. we suppose. that the United States had some interest In the case. sent one of his special aseist- ants to intervene on behalf of the gov- ernment. When the application was made 1t was objected to by the de- fendant that this was litigation strict ly inter-partes, with which the United States had no concern. The court found 1t difficult to see how any other con- clusion could be reached. and indeed, In all such matters. neither of the par ties really interested might desire to be affected by the contentious of any outside person. But. while 1t is not thought that such practice should be especially encouraged inasmuch as there is no statute or law which authorizes or directs the Attorney General to snp- port by arguments In the courts gen- orally the legislation of Congress where the United States is not a party. nor its interests involved in any tangible way yet the courtt desiring light upon the very important questions involved in the case decided to hear tho special assistant of the Attorney General as a friend of the court; but. as both parties In interest in the litigation might de- sire to combat his views If regarded as conflicting with the grounds and argu- ments upon which they respectively might desire to rest the case, the court thought 1t best that he should speak first. and he did so.
 While the courts would be exceed. ingiy slow to inquire into the mere appropriateness of legisiation. they can. not decline the duty of inquirina whether Legislation Is within the con- stitutional power of Congress. when q proper case demands the investigation. and most patient consideration Of the question In this instance has led us lto.the conciusion--we think to the In. evitable concfusfcn--that the act of June II. 1908. only creates and iinpoNes liability upon certain. common car-I riers to their employees and in no way prescribes rules for carrying on trafiio or commerce among the States. and consequently in no way regulates such commerce.
 If the operation of the act could in any wise affect commerce among tho states 1t would do so in a manner so rec mote, incidental and contingent as In no proper sense to afford factor of any value in determining the question now in contention. With what the su- preme court has said in many cases before us and with an open constitution to control, we should be trifiing with important things if we G.ve force to Indeed, 1t maybe said that 1t Is obvious any other conclusion.
 Indeed, it may be said that 1t Is obvious that Congress. in the act referred to. had in contemplation no more than the creation of the liability mentioned. and 1t would be a most strained construc-i ton to hold that 1t included any thing broader than that Creating new iiabf- uties growing out of the relations of master and servant upon the one hand and regulating commerce on the ofh- CT are two things so entirely different that confusion of the judicial mind ups on them is hardly to be expected under normal conditions. In the opinion Of the court the act does not regulate commerce among the states.
 While the title is not controlling in the construction of an act of Con- gress, 1t may aid us fin our tnvestiga- tion to note that the title'in this in stance labels the act as one relating to the liability of certain common car- riers to their employees This label. so to speak. quite accurately describes the contents of the measure, For h in fact does nothing more than lx the liability of certain common carriers to their employees