WABASH R. CO. v. UNITED STATES; ELGIN, J. & E. RY. CO. v. SAME, 168 F. 1

BAKER, Circuit Judge (after stating the facts as above). Do the words in the second

section of the act of 18.93, “any car used in moving interstate traffic,” mean that a car is subject to the statute only during the time it is actually employed in moving interstate traffic, or that every car is within the act if it is customarily or repeatedly employed in such movements? Both meanings are within the dictionary

definitions of “used,” and, if regard were paid only to the rule that a penal statute should be strictly construed, the narrower meaning might be taken. But a penal statute, or one in derogation of the common law, should not be hedged in to less than the legislative intent if that is dearly revealed by the act as a whole. From the title and from every part of the act we think it is indisputable that the purpose was to promote the safety of interstate passengers and freight and to protect the lives and limbs of railroad employes while engaged in the work of interstate transportation.

The risks incurred in coupling and uncoupling are more imminent on switching tracks, where trains are made up and distributed, and where empty cars are set out at freight houses or factory platforms to be loaded, than on the main lines. It is not reasonable to suppose that Congress intended to mover only the smaller part of the dangers; and since the language employed is entirely consistent with the larger meaning,

section 2 of the act of 1893 should be held to forbid an interstate carrier from hauling or using on its line any car that is customarily or generally employed in moving interstate traffic, and that is not equipped with automatic couplers, even though at the particular time the car be empty or be moving intrastate traffic. This

interpretation follows, we believe, from the decision in Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363. A dining car that had been in regular service between San Francisco,. Cal., and Ogden, Utah, was dropped by an east-bound train at Promontory, Utah, to be attached to the next west-bound train. While the car was standing empty on a siding, a freight brakeman was ordered to couple it to an engine for the purpose of turning it around preparatory to its being picked up by the west-bound train.

The car was not equipped with automatic couplers. “Confessedly this dining car,” the Supreme Court said, “was under the control of Congress while in the act of making its interstate journey, and in our judgment it was equally so when waiting for the train to be made up for the next trip.

It was being regularly used in the movement of interstate traffic and so-within the law.” The Elgin, Joliet & Eastern record involves the further inquiry: If a car'is set apart for carrying intrastate traffic exclusively, but if it is not confined to intrastate trains on an intrastate line, does the fact that while it is laden with intrastate traffic it is hauled in connection with interstate cars on an interstate line require it to be equipped with automatic couplers and grab irons?

While the usual canons of construction might not lead to holding such a car to be within sections 2 and 4 of the act of 1893, it seems to us beyond doubt that the rule of

interpretation prescribed in

section 1 of the act of 1903 forecloses the question. The provisions relating to automatic couplers, etc., “shall be held to apply” to all cars used on any railroad engaged in interstate commerce and to all other cars used in connection therewith. But these

interpretations, it is insisted, carry the legislation beyond the powers of Congress.

The answer, in outline, is this: When the Declaration of Independence ripened into fact, the several states could have taken their separate places in the family of nations as absolutely sovereign powers, and the commerce among them would have been on the same footing as commerce “with foreign nations” and “with the Indian tribes.” On abandoning their “firm league of friendship” and adopting the Constitution, the states divested themselves of the power to regulate interstate commerce as completely as they did of the power to regulate foreign commerce, and transferred to the nation in equal terms the power to regulate both.

To the extent that there is a difference between the power of Congress over interstate. commerce and over foreign commerce, it comes not from any difference in the grants, but from the fact that other provisions of the Constitution which may limit the exercise of the power over interstate commerce may have no application to foreign commerce. Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999; Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; Champion v. Ames, 188 U. S. 321, 23 Sup. Ct. 321, 47 L.

Ed. 492; Employer’s Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297. But though the power conferred by the commerce clause is absolute, except as limited by other parts of the Constitution, yet, inasmuch as that instrument is one of “enumeration rather than of definition,” the questions always remain in a given case: Is the subject-matter interstate commerce? Is the purported regulation in fact a regulation? And is the regulation obnoxious to any of the restraining clauses of the Constitution?

In response to these questions no generalizations in advance of the long processes of judicial inclusion and exclusion should be attempted, and the particular answers should be understood as limited to the facts of the cases. That transportation is commerce and that those who do the business of carrying passengers and freight across state lines are engaged in interstate commerce are matters settled beyond question. State Freight Tax Case, 15 Wall. 232, 21 L. Ed. 146, and authorities supra. No restraining clauses are relied on by counsel to limit the face value of the commerce clause as applied to these cases.

No doubt is suggested that the requirement of safety appliances on cars that are actually laden with interstate traffic is a regulation of interstate commerce.

Now, if the same interstate carrier may haul on the same interstate highway cars that need not be equipped because though regularly used in interstate traffic they are empty at the time (the Wabash case) and also cars that need not be equipped because they are laden with intrastate traffic exclusively (the Elgin case), the purpose of equipping the cars that are carrying interstate traffic would manifestly be largely impaired or destroyed; for in switching movements, in derailments, and in collisions, disaster would come to the interstate car quite irrespective of the character of the other cars involved.

Therefore Congress, under the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers” of regulating interstate commerce, had the right to make the laws in question; and they are paramount, of course, to all laws of the states. This result, which we deem sound in reason, is indirectly sustained; we believe, by the Employer’s liability Cases, supra; for there the statute was overthrown only because an inseparable part of it was found to have no necessary or proper relation to the security of interstate transportation.

In the Elgin case it is insisted that, although the car in question was not furnished with equipment by which it could be uncoupled from the adjacent car “without the necessity of men going between the ends of the cars,” the act was not violated because the adjacent car was equipped so that it could be uncoupled from the car in question in'the prescribed manner. Under the act each car is a unit and must itself be completely equipped so that trainmen may go about their work without charging their memories with differences between cars.

An expert trainman, after describing the broken condition of a coupler, was asked: “In the condition in which that coupler was on that end ot the car at that time, what was necessary in order to operate the coupler’/” He answered: “It. would necessitate a man going between the ends of the cars and taking the part of the chain that was left with the coupler to operate that coupler.” The question was objected to on the ground that it called for a conclusion and invaded the province of the jury.

In our judgment the mode of operation of automatic coupling mechanism and the effect of various conditions thereof were proper subjects for expert testimony. - By an oral stipulation in open court the Elgin Company admitted that “it is a common carrier engaged in interstate commerce." Under the assignment that the court erred in refusing to direct a verdict for defendant, contention is now made that there was no evidence to show that defendant was an interstate carrier at the times laid in the petition. That was not disclosed as one of the grounds of the motion.

If it had been, defendant would have been compelled to amend the stipulation, or plaintiff would have introduced the evidence, to obviate the taking of which the stipulation had been made. As the point was not presented to and ruled on by the trial court, it is not available here. The judgment in each case is affirmed.