(40 Sup.Ct.) gaged in the United States as a merchant, to Circuit Court of Appeals for the Ninth Cir- cuit. modified by the provisions of the new law., mission on the ground that he was formerly enBut that is only one of the questions in the case. It is true that the determination of it underlies the right of the Commission to prescribe new forms of bills of lading, but it is a settled principle in this court that it will determine only actual matters in controversy essential to the decision of the particular case before it. Where by an act of the parties, or a subsequent law, the existing controversy has come to an end, the case becomes moot and should be treated accordingly. However convenient it might be to have decided the question of the power of the Commission to require the carriers to comply with an order prescribing bills of lading, this court "is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard." California v. San Pablo & Tulare R. Co., 149 U. S. 308, 314, 13 Sup. Ct. 876, 878 (37 L. Ed. 747); United States v. Hamburg American Line, 239 U. S. 466, 475, 476, 36 Sup. Ct. 212, 60 L. Ed. 387, and previous cases of this court therein cited. In the present case what we have said makes it apparent that the complainants do not now need an injunction to prevent the Commission from putting in force bills of lading in the form prescribed. The subsequent legislation necessitates the adoption of different forms of bills in the event that the power of the Commission be sustained. This legislation having that effect renders the case moot. Berry v. Davis, 242 U. S. 468, 37 Sup. Ct. 208, 61 L. Ed. 441. In our view the proper course is to re verse the order, and remand the cause to the court below with directions to dismiss the petition, without costs to either party, and without prejudice to the right of the complainants to assail in the future any or ALIENS 27-CHINESE MERCHANT TEMPORA- Under Act Nov. 3, 1893 (Comp. St. §§ 4320, 4324), requiring a Chinaman, applying for ad Habeas corpus by Chin Fong against Edward White, Commissioner of Immigration for the Port of San Francisco. A judgment remanding the petitioner to custody was reversed by the Circuit Court of Appeals (258 Fed. 849, 169 C. C. A. 569), and defendant brings certiorari. Affirmed. See, also, 250 U. S. 656, 40 Sup. Ct. 14, 63 L. Ed. 1192. *91 *Mr. Assistant Attorney General Stewart, for petitioner. Mr. J. H. Ralston, of Washington, D. C., for respondent. Mr. Justice MCKENNA delivered the opinion of the Court. Certiorari to review a judgment of the Court of Appeals discharging respondent from the custody of the Commissioner of Immigration, he holding respondent for deportation as a Chinese person not entitled to be in the United States. 258 Fed. 849, 169 C. C. A. 569. The judgment of the Court of Appeals reversed that of the District Court, the latter court having remanded respondent to the custody of the Commissioner for deportation. The evidence establishes the fact that respondent entered the United States as a merchant and was such at a fixed place of business for at least a year before his departure for China and that his stay in China was intended to be temporary. He hence contends that the Commissioner, as representing the executive branch of the government, had no authority to determine that his original entry was unlawful. This contention the District Court ruled against and the Circuit Court of Appeals ruled in favor of, and constitutes the question in the case. The Circuit Court of Appeals, by Circuit Judge Morrow, passing upon it said: "The acting Secretary of Labor in approving the decision of the Commissioner of Immigraentry of this man [respondent] was obtained by tion did so upon the ground that 'the original fraud,' but this was not the question submitted to the Commissioner of Immigration or to the *92 Secretary of Labor for *decision. The question For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes from the United States in 1912. Chin Fong v. Backus, 241 U. S. 1-5, 36 Sup. Ct. 490, 60 L. Ed. 859." The government appeals against the explicit words of the provision to the purpose of the exclusion laws, which is, it is said, And upon that question it was decided to keep the country free from undesirable Chinese, or, if they fraudulently enter, to The conclusion was that the Commissioner did not consider this evidence or pass upon it, but deciding that appellee's original entry was fraudulent, ordered his deporta tion. In other words, it was held that the Commissioner ignored the question presented to him and the evidence pertaining to it, reviewed and reversed the judgment of another time and tribunal, took away the right that had been exercised under it and which gave the assurance that respondent could go to China and return again. The order of deportation was, therefore, declared to be void. For this the court cited the case of Chin Fong v. Backus, supra, 241 U. S. 1, 36 Sup. Ct. 490, 60 L. Ed. 859, and the various (Argued Jan. 8, 1920. Decided May 17, 1920.) statutes applicable to the exclusion of Chinese persons from entry into the United States. 22 Stat. 58 (Comp. St. §§ 4290-4302, 1. COMMERCE 27(5)-TEST OF EMPLOYÉ'S 4359); 23 Stat. 115 (Comp. St. § 4290 et seq.); 25 Stat. 476 (Comp. St. §§ 4306-4314); 31 Stat. 1093 (Comp. St. §§ 4332-4334); and the Act of Nov. 3, 1893, 28 Stat. 7 (Comp. St. §§ 4320, 4324). (253 U. S. 77) ERIE R. CO. v. COLLINS. ENGAGEMENT No. 348. IN INTERSTATE COMMERCE Whether a railroad employé is engaged in interstate commerce depends on whether the work being done is so closely related to interstate commerce as to be practically a part of it. 2. COMMERCE 27(5)-EMPLOYÉ OPERATING PUMPING PLANT SUPPLYING WATER TO ENGINES ENGAGED IN INTERSTATE COMMERCE. In the case of United States v. Woo Jan, 245 U. S. 552, 38 Sup. Ct. 207, 62 L. Ed. 466, we had occasion to consider the difference between the situation of a Chinese person in the United States, and one seeking to enter it; and held that the former was entitled to a judicial inquiry and determination of his rights, and that the latter was subject to executive action and decision. We think the distinction is applicable here, and that one who has been in the United States and has departed from it with the intention of returning, is entitled under ex-3. isting legislation to have his right to do so Judicially investigated with "its assurances #93 and sanctions," as contrasted with the discretion which may prompt or the latitude of judgment which may be exercised in executive action. A railroad employé, operating a signal tower and a pumping station, consisting of water tank and an engine for pumping purposes, through which instrumentalities water was supplied to engines whether engaged in interstate commerce or intrastate commerce, was engaged in interstate commerce while in attendance at the pumping station. CERTIORARI 64(1)—CLAIMS OF ERROR NOT ARGUED or SUBMITTED ASSUMED ABANDONED. Claims of error neither argued nor submitted may be assumed abandoned. 4. DAMAGES 54-SHAME AND HUMILIATION FROM INJURY CAUSING DISFIGUREMENT ELE- And such is the provision of the Act of humiliation caused by an injury resulting in Damages are recoverable for the shame and November 3, 1893 (28 Stat. 7). It is there personal mutilation or disfigurement, nothwithprovided that a Chinaman who applies for standing the claimed difficulty of contradicting admission into the United States on the or rebutting evidence concerning mental sufground that he was formerly engaged there-fering; that being a matter for the jury's conin as a merchant, must establish the fact sideration. by two credible witnesses, other than Chinese, that he was such at least one year before his departure from the United States, and had not engaged during such year in any manual labor except what was necessary in the conduct of his business. Mr. Justice Van Devanter and Mr. Justice Pitney dissenting. On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) Action by William M. Collins against the "trains carrying interstate commerce ran Erie Railroad Company. A judgment for daily" and at such times "water from the plaintiff (245 Fed. 811) was affirmed by the water tank was supplied daily in part to deCircuit Court of Appeals (259 Fed. 172, 170 fendant's engines engaged in interstate comC. C. A. 240), and defendant brings certiora- merce and in part to engines hauling intrari. Affirmed. state freight." See, also, 250 U. S. 637, 39 Sup. Ct. 490, 63 L. Ed. 1183. Messrs. John W. Ryan and Adelbert Moot, both of Buffalo, N. Y., for petitioner. Mr. Hamilton Ward, of Buffalo, N. Y. (Mr. Irving W. Cole, of Buffalo, N. Y., of counsel), for respondent. *80 *Mr. Justice MCKENNA delivered the opin- and to review its action this certiorari was ion of the Court. granted. Action for damages under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) brought in the District Court for the Western District of New York. The evidence presents very few matters of controversy. It establishes the employment of plaintiff by defendant, and its character, and presents the question whether it was in The following are the allegations of the interstate commerce or intrastate commerce, complaint stated narratively: December 25, 1915, and prior thereto, defendant was an operator of a steam railroad and engaged in interstate commerce. On and prior to that date plaintiff as an employé of defendant operated a signaling tower and water tank in the town of Burns, N. Y., the tower being used for the operation of trains in interstate and intrastate commerce. The tank was used for supplying the locomotives of the trains with water, which was pumped from a closeby well into the tank by a gasoline engine which plaintiff ran. In the nighttime of December 25, 1915, while plaintiff was engaged in starting the engine the gasoline suddenly exploded burning him and seriously and painfully and permanently injurying him, causing him immediate and permanent suffering and the expenditure of large sums of money, by all of which he was damaged in the sum of $25,000. The engine was defective, which was the cause of the explosion, plaintiff being guilty of no negligence. in both of which, it is stipulated, defendant was engaged. And on this question the courts below decided the employment was in interstate commerce though exhibiting some struggle with opposing considerations. They seemed to have been constrained to that conclusion by the same cases, and a review of them, therefore, is immediately indicated to see whether in their discord or harmony, whichever exists, a solution can be found for the present controversy. They all dealt with consideratións depend $82 ent upon the *distinctions of fact and law between interstate and intrastate commerce. A distinction, it may at once be said, is plain enough so far as the essential characteristics of the commerces are concerned, but how far instruments or personal actions are connected with either and can be assigned to either, becomes in cases a matter of difficulty, and ground, it may be, of divergent judgments. With this in mind we review the cases. But first as to the facts in this. Defendant Judgment was prayed in the sum of $25,000. Defendant by demurrer attacked the sufficiency of the complaint and the jurisdiction is an interstate railroad and upon its line of the court. running from other states to New York it The court (Judge Hazel) overruled the de-operated in New York a signal tower and murrer but in doing so expressed the conflicting considerations which swayed for and against its strength but finally held the complaint sufficient, "and that plaintiff was engaged in interstate commerce or that his work was so closely connected therewith as #81 to be a part of it." To this conclusion *the court seemed to have been determined by Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. Defendant answered putting at issue the allegations of the complaint, and set up as separate defenses assumption of risk and contributory negligence. switches to attend which plaintiff was em- It can hardly be contended that while plaintiff was engaged in the signal tower he was not engaged in interstate commerce, though he may have on occasion signaled the A trial was had to a jury, during the approach or departure of intrastate trains. course of which it was stipulated that at the But it is contended that when he descended time of plaintiff's injury and prior thereto | from the tower and went to the pumping sta tion he put off an interstate character and [part of it or to have "close or direct relatook on one of intrastate quality or, it may tion to interstate transportation." The Yurbe, was divested of both and sank into un-konis Case was cited and applied. designated employment. A rather abrupt Shanks v. D., L. & W. R. R. Co., 239 U. S. transition it would seem at first blush, and, 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. if of determining influence, would subject 1916C, 797, was considered of like character. the Employers' Liability Act to rapid chang-The employment asserted to have been in ines of application, plaintiff being within it at terstate commerce was the taking down and one point of time and without it at another- putting up fixtures in a machine shop for rewithin it when on the signal tower, but with- pairing interstate locomotives. out it when in the pump house, though in both places being concerned with trains engaged in interstate commerce. *83 *But let us go from speculation to the cases. Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, D., L. & W. R. R. Co. v. Yurkonis, 238 U. S. 439, 35 Sup. Ct. 902, 59 L. Ed. 1397, Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, Shanks v. D., L. & W. R. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, and Roush v. B. & O. R. R. Co. (D. C.) 243 Fed. 712, were considered by the Court of Appeals. Some state cases were also referred to. Before summarizing these cases we may add Minneapolis & St. Louis R. R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54, and Southern Ry. Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69. In the Winters Case the work was repairing an engine. The engine, it was said, had no definite destination. "It simply had finished some interstate business and had not as yet begun upon any other." As to such instru mentalities the determining principle was said to be that their character depends upon their “employment at the time, not upon remote probabilities or accidental later events." In the Puckett Case an employé (car inIn Pedersen v. D., L. & W. R. R. Co. it was spector) going to the relief of another emheld that one carrying bolts to be used in re-ployé stumbled over some large clinkers in his path while carrying a jack for raising a pairing an interstate railroad, and who was injured by an interstate train, was entitled derailed car. It was decided that he was engaged in interstate commerce, the purpose to invoke the Employers' Liability Act. In other words, that one employed upon an in- being to open the way for interstate transportation. strumentality of interstate commerce was employed in interstate commerce. And it was said, citing cases: "The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged." In the Yurkonis Case the injury complain ed of happened to Yurkonis on a mine or colliery of the railroad by the explosion of gases when Yurkonis was engaged in and about the performance of his duties. It was held that an injury so received, though the coal was destined for use in interstate commerce, was not one occurring in such com merce. In Roush v. B. & O. R. R. Co. (D. C.) 243 Fed. 712, the decision was that one employed in operating a pumping station which furnished water to interstate and intrastate roads was engaged in work incidental to interstate commerce, the court deducing that conclusion from cases from which it liberally quoted. C., B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, the Court of Appeals considered as substantially the same in incident and principle with the Yurkonis Case, supra. The case concerned an *84 injury while handling coal. It was a step or steps nearer the instrumentality of use. It was being removed when the injury complained of occurred from storage tracks to chutes. The employment was considered too distant from interstate commerce to be a These, then, being the cases, what do they afford in the solution of the case at bar? As we have said regarding the essential character of the two commerces, the differences between them is easily recognized and expressed, but, as we have also said, whether at a given time particular instrumentalities or employment may be assigned to one or the other may not be easy, and of this the cases are illustrative. What is their determining principle? *85 [1, 2] In the Pedersen Case it was said that the questions which naturally arise: "Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it?" Or as said in Shanks v. D., L. & W. R. R. Co., supra, was the "work so closely related to it [interstate commerce] as to be practically a part of it?” The answer must be in the affirmative. Plaintiff was assigned to duty in the signal tower and in the pump house and it was discharged in both on interstate commerce as well as on intrastate commerce, and there was no interval between the commerces that separated the duty, and it comes therefore within the indicated test. It may be said however, that this case is concerned exclusively with what was to be done, and was done, at the pump house. This may be true but his duty there was performed and the instruments and facilities of it were kept in (40 Sup. Ct.) readiness for use and were used on both com- | grant to another violates its contract, and takes merces as were demanded, and the test of the its property in violation of the federal Concases satisfied. stitution, is too frivolous to support a direct appeal to the Supreme Court. [3] There is only one other assertion of error that demands notice. The others (regarding assumption of risk and contributory negligence) counsel neither argue nor submit; their abandonment, therefore, may be assumed. [4] It is asserted against the verdict that it is "outrageously excessive," caused by the instruction of the court that plaintiff could recover "for shame and humiliation." Counsel's argument is not easy to represent or estimate. They say that "mental pain" of the designated character, "the suffering from feelings, is intangible, incapable of test or trial," might vary in individuals, "rests entirely in the belief of the sufferer, and is not susceptible of contradiction or rebuttal." If all that be granted, it was for the consideration of the jury. It certainly cannot be pro Two suits, by the Piedmont Power & Light Company and by J. R. Paschall and another, against the Town of Graham and others. From decrees dismissing the complaints, plaintiffs appeal. On motion to dismiss or affirm, or transfer to summary docket. Appeals dismissed. Mr. James H. Bridgers, of Henderson, N. C., for appellants. Messrs. Charles W. Tillett, of Charlotte, N. C., and William P. Bynum, of Greensboro, N. C., for appellees. #194 *Memorandum opinion by direction of the nounced a proposition of law that personal Court by Mr. Justice CLARKE. mutilation or disfiguration may be a mat#86 These are appeals direct from decrees of ter of indifference to any body *or that sen- the District Court sustaining motions to dissitiveness to it may vary with "tempera-miss complaints for the reason that they did ments" and be incapable of measurement. We see no error in the instruction. Judgment affirmed. not state facts sufficient to constitute a valid cause of action in equity. The cases involve the same facts differently stated by different complainants. The asserted warrant for the Mr. Justice VAN DEVANTER and Mr. appeals in that action taken by the officials Justice PITNEY dissent. 2. FRANCHISES 3-STRICTLY CONSTRUED AND NOTHING PASSES BY IMPLICATION. Grants of rights and privileges by a state or municipality are strictly construed, and whatever is not unequivocally granted is withheld; nothing passing by implication. of the town of Graham, North Carolina, if allowed to become effective, would result in violation of appellants' contract with that town and in depriving them of their property without due process of law, in violation of the Constitution of the United States. Since the bill in No. 684 contains all of the elements of strength which the bill in No. 685 contains and lacks some of its elements of weakness, the disposition of the former will rule the latter. In No. 684 the appellant, a corporation, averring that it is the owner of a franchise to use the streets of the town of Graham for the distribution of electric current, prays that the officials of the town be restrained from certifying as lawfully passed an ordinance granting a like franchise to the defendant the Mutual Power & Light Company, and that the company be enjoined from using the streets for such purpose. [1-3] The grant to the appellant is set out in full in the bill and plainly it is not one of exclusive rights in the streets. The attempt to derive an exclusive grant from the declaration, in the paragraph of the ordinance relating to the trimming of trees, that "said town of Graham hereby warrants that it will, by its proper authorities, provide for the full and free use of its streets, lanes," etc., is fatuous and futile. Grants of rights The contention of the holder of a nonexclu- and privileges by a state or municipality sive franchise to use the streets of a town for are strictly construed and whatever is not the distribution of electric power that a similar unequivocally granted is withheld; nothing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. COURTS 385(7)—CONTENTION THAT FRANCHISE VIOLATES RIGHT OF HOLDER OF EARLIER FRANCHISE TOO FRIVOLOUS TO SUPPORT AP PEAL. |