New-York tribune., 1908-01-07

right to engage in interstate commerce privi-
sge Tnh ss BE sg
though the conditions would be otherwise pey4I.a 3h
6s o @e rounded the
of local tS Would all
limitations of power imposed ny me ne tas s TO
ali conceivable matters which from the beginning
have besn n and mpst I 0e endure
Concluding do. the statute while ,ass !, ems
to regulate commerce also includes subjects not not
IN interbended in the statute that they
incapable of separation we are OF me opiol ~. IL re-
rne to the constitution and
and the judgments below are therefore aniii'eu
HOW THE COURT DIVIDED.
There were two cases before the court in
volyinr the question of the validity of the law
one of them being the case of Damselle HOWARD
administrator of her husband, William Howard
a locomotive fireman. who was kilieo IN an
.ocidap. on the Illinois Central road near Mem
nhis and the other that of n G BROOKS ao-
minfstratrix and mother of Morris s Brooks n
fireman. who was killed on the Southern Pacific
road II, Nevada The Howard case was tried In
the United states Circuit Court for the Western
District of Tennessee. with Judge Mccall pre-
siding and the Brooks case in the United states
Circuit Court for the Western District of Ken
tucky with Judge Walter Evans on the pencn'
In the former damages amounting to
S25o 600 were demanded. while in the latter the.
sum was fixed at 10000. The railroads fought
both cases strenuously, both in the triai courts
and in the Supreme Court and in each case
obtained verdict against the complalnants on
+be ground of the unconstitutionality of the law.
Judge Evans and Judge Mccall followed the
same line of reasoning in reaching their con-
cr,,sions both holding the law to be invalid on
the double ground that Congressional enact
,nent could not be made applicable to 1ntra-
state commerce, they said was undertaken
in this law, and that protection from accidents
in interstate commerce could not be construed
as anv part of commerce" of any kind. Both
the Kentucky and Tennessee decisions were af-
frmed by Justice Whites opinion.
The decision has been expected ever since the
beginning of the recent term of court, as the
cases were argued last term, but the reason for
the delay became apparent to-day when the
courts conclusions were announced. 1t then
became evident that while Justice White had
been chosen TO announce the courts decision
there were comparatively few of his colleagues
who were agreed with him as to the argument
by which he reached his conclusion, and the
result had been reached with difficulty. The
chief Justice. Justice Brewer, and Justice Peck
ham Joined with Justice White in the result. but
they did not follow him in his assertion of the
power of Congress to regulate the relation be-
Cured in the result Justice Moody Gissented
entirely holding that the law is constitutional
on all points He expressed the opinion that
Congress has the general power to pass the
act and the courts position was an interfer-
ence with the domain of the legislative branch
of the government.
Justices Harlan and McKenna united in an
opinion affirming the constitutionalty of the
act but holding IT to be applicable only to en-
ployes engaged at the time in interstate CON-
rnerce and not those engaged wholly in the state
in which the accident happened. Justice Holmes
also delivered a brief dissenting opinion.
In his message Congress in 1901 President
Roosevelt recommended the passage of an employ
ers' liability law. He renewed the recommendation
in his message TO the succeeding Congress, and
again recommended it in 1905 and earnestly urged
the massage of a law The 59th Congress acted on
this and on June II. 1905. the act was approved
which the Supreme Court pronounces uncon-
stitutional. 1t provided that common carriers en-
gagged in trade commerce should be liable 70 any
employees or in OF death to their representa-