Omaha daily bee., 1908-01-07
oPHIoE BY JUSTICE WHITE

WASHINGTON. u. c. Jan. s-Thst the
congressional act known as the En-
ployerS I1ability Law is not in accord
Gnce vita the ooustitution cf the United
States, because Il goes beyond the bounds
permitted IN the regulation % interstate
ooumereA vas ths conclusion reached by
the supreme court % the United States in
deciding two damage cases coming to the
oourt from the federal courts Of Kentucky
and Tennessee. which were brought under
the provisions Of the law.
The decision was Rnnounced ~ Justice
White. the court standing five 70 four
against the Law. Among the men who
voted not 10 sustain The state, there were
different shades OF opinion. Much inter
est was manifested in the result Of the
courts deliberations.
Points in the DecfstOn.
Following are the principal points from
Justice Whites opinion:
The act then being addressed 70 all
common carriers engaged in interstate
commerce and imposing a liability upon
them in favor Of any OF their enployes
without qualification or restriction as to
the business in which the carriers or their
employees may be engaged at The time Of
the injury, OF Necessity includes subjects
wholly outside OF the power Of congress
TO regulate commerce without stopping
10 consider the numerous Instances whore.
although a common carrier IS engaged IN
interstate commerce. such carrier may, in
the nature Of thingE- transact business not
interstate commerce. although such local
business may indirectly be related 10 in
1erslats commerce. A few Illustrations
sboH1ng the operation Of the statute as 10
matters whelly independent of interstate
commsrce viii serve 10 make clear the eK-
tent Of the power exerted by The statute.
Take railroad engaged in interstate COM
merce, having . purely local brancn op-
Grated wholly within a state. Take again
the same road having shops for repairs.
and II may be for construction work, as
wsiI as a large accounting and clerical
force and having. 81 may be. storage eie-
vators and warehouses. not 10 suggest be-
side the possibility OF its being engaged in
!, other Independent enterprises. Take q
its8ee4syifr -coFnIsEgly engaged in the trans
: mission OF Interstate and local messages.
Take an express company engaged in 10
cal as well as interstate business. Take
q trolley line moving wholly within a state
as 10 a large part Of its business and yet
as TO the remainder crossing the state line
EHeeeds Powers of Congress.
AS the act thus includes many sub
sects wholly beyond the power TO regr-
late commerce and depends fer lis Sane
tiun upon that authority, il results thai
the act iE repuEnsnt 10 the constitution
and cannot be enforced unless there be
merit in the propositions advanced to
show that the statute may be saved.
So Tar as the face of the statute is
concerned the argument is this. that be-
cause the statute says carriers engaged
in commerce between the states. etc,
therefore the act should be interpreted
as being exclusively applicable TO The
interstate commerce business and none
other Of such carriers and that the words
'anF employe as found IN the stsiete.
should be hel6 20 mean any employe.
when such smploye Is engaged only in
interstate commerce. But this would re-
ouire US TO write into the statute words
% Limitation and restriction not now in
it But q We could bring ourselves 70
modify the statute 10y writing in the
words suggested the result would be 10
restrict the operation of the act as TO
she District OF Columbia and the ter
ritOries-
statute is IRdiviaibIe.
~Of course. u IL can be lawfully done.
cur duty "a 10 construct the statute 20
az 10 render 81 constitutional. But this
does net imply. n the text Of an act Is
unAmbiguous tha1 n may be rewritten
20 accomplish that purpose. Equally clear
statute contains provisions which are
constitutional and others which are uo,,
effect may Re gwen 10 the legal pro
visions by separating them from the
ineFal But this applies only 10 a case
where the progtsions are not inseparabIC
ana not dependent one upon the other
aad does not support the contention that
that which iE indiyisible may be divided
Moreover. when q case where The leEal
provisions may be severed from those
Witch are illegal. IN order 20 save the
ststuts. applies only where IL is plain
that congress would have enacted The
Legislation with ths unconstitutional pro
visions eliminated All these principles
are 80 clearly settled as net 10 be cPsr
70 controversy.
Art ts UBcORssitutiOnAI.
II rematns only - eonsidsr. the conlen-
uon which We have previously quoted thai
the act 10 constitutional although 81 en-
braces Enbjecis not within the power Of
congress g regulate commercs, because
one Whe enGaEes tn Interstate commercs
thereby ADMITS al his business concerns
10 the reEuiating power 0f congress ID
stats the proposition l. 10 refute b.. Il
assumes rhnf because one engages IN in-
terstate commerce be thereby sndoWs c-u
Ersss with power not delegated 10 % ay a.,
eonstit alton. in ether words. Nith THE r,sh
90 legislate concerning matters ~ purs
state concern. II res-s on the cone eptio-
that the oonEfltution destroyed that free
dom OF commerce which t was rs pJrqoss
20 preserve, since q ireais t,-e iight a. an
kpEe in interstate commerce as privleEs
uhich eannot b availed of sEcep. on suct
conditions as u may rrescribe. even thoag
the conditions may CthrrW.se be beyond a.,
power Of eOnEress II ls sppEreag ,hlt 9.
the e5ntsnrun we're well founded = Wouid
sxtend the power of congress 90 every e5h-
oeavsble sub5ect. however inhrruu.iy I-cs
would ohiiterate all the l,ni -atiln az laosvi
Imposed By the eonEtl.ltl1n ana VoLl
destroy the authority % ths s4a.ss IS 4 al
eonce,v1hle matters which from t--s bsgin.
uag have been and mus soatlnue 70 ID