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REUBEN L. MARTIN, Plff. in Err.,

V.

in turn affirmed a judgment of the Court of Common Pleas of that county, in favor

PITTSBURG. & LAKE ERIE RAILROAD of defendant, in an action by a railway

COMPANY.

Postoffice-congressional power over post roads-state regulation.

1. The power of Congress to establish postoffices and post roads is not infringed by Pa. act of April 4, 1868, under which a railway postal clerk, injured in the course of his employment, can have no greater rights against the railway company than if he were an employee.

Commerce-state regulation.

2. Applying to interstate transportation the provisions of Pa. act of April 4, 1868, restricting, as against a railway company, the rights of persons injured in the course of their employment in or about the railroad to those which an employee of the railway company would have under like circumstances, does not make such statute repugnant to the commerce clause of the Federal Constitution.

postal clerk to recover from a railway company for personal injuries alleged to have been sustained by reason of its negligence.

Affirmed.

See same case below, 72 Ohio St. 659, 76 N. E. 1129.

Statement by Mr. Justice White:

Reuben L. Martin brought this action to recover compensation for personal injuries. At the time Martin was injured he was on a train of the railroad company, in the employ of the United States as a railway postal clerk on a route extending from Cleveland, Ohio, to Pittsburg, Pennsylvania. The injuries arose from the derailing in Pennsylvania of the train, by the negligence of the crew of a work train, in permitting a switch leading to a side track to be open. Among other defenses the company pleaded a law of Pennsylvania passed April 4, 1868 (P. L. 3. Due process of law is not denied a 58), which, it alleged, was applicable, and reperson injured in the course of his employ-lieved from responsibility. In reply the ment in or about a railroad by Pa. act of plaintiff denied the existence and applicaApril 4, 1868, restricting his rights as against bility of the statute, moreover, and defendthe railway company to those which an em-ed on the ground that the statute, if existing ployee of such company would have under

Constitutional law-due process of law.

like circumstances.
Constitutional law-privileges and immuni-

ties.

and applicable, was void, first, because contrary to the power delegated to Congress to establish postoffices and post roads; second, 4. Privileges and immunities of citizens the Constitution; and, third, because in conbecause repugnant to the commerce clause of of the United States are not denied by ap-flict with the equal protection and due procplying to interstate transportation the provisions of Pa. act of April 4, 1868, restricting, as against a railroad company, the rights of persons injured in the course of their employment in or about the railroad to those which an employee of the railway company would have under like circumstances.

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ess clauses of the 14th Amendment, and also the clause prohibiting a state from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.

On trial before a jury the court held the statute in question to be applicable and valid, and hence operative to defeat a reof the railroad company was severally afcovery. A verdict and judgment in favor firmed by the circuit court and by the supreme court of the state of Ohio.

Messrs. Charles Koonce, Jr., Robert B. Murray, and William S. Anderson for plaintiff in error.

Messrs. James P. Wilson and Arrel, Wilson, & Harrington for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

We quote the Pennsylvania statute of April 4, 1868, upon which the case turns: "Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania, in General Assembly met: It is hereby enacted by the authority of the same that when any person shall sustain

personal injury or loss of life while lawfully, compensation. The statutes of the United engaged or employed on or about the roads, States which authorize this employment and works, depots, and premises of a railroad direct this service do not, therefore, make company, or in or about any train or car the person so engaged a passenger, or detherein or thereon, of which company such prive him of that character, in construing person is not an employee, the right of ac- the Pennsylvania statute. Nor does it give tion and recovery in all such cases against to persons so employed any right, as against the company shall be such only as would ex- the railroad company, which would not beist if such person were an employee, pro- long to any other person in a similar emvided that this section shall not apply to ployment, by others than the United passengers." States."

As the application of the statute, if valid, presents no Federal question, we are unconcerned with that matter, although it may be observed in passing that it is conceded in the argument at bar that under the settled construction given to the statute by the supreme court of Pennsylvania the plaintiff, as a railway postal clerk, was not a passenger, and had no greater rights in the event of being injured in the course of his employment than would have had an employee of the railroad company.

Was the application of the statute thus construed to a railway postal clerk of the United States in conflict with the power of Congress to establish postoffices and post roads?

In Price v. Pennsylvania R. Co. 113 U. S. 221, 28 L. ed. 981, 5 Sup. Ct. Rep. 427, this question was in effect foreclosed against the plaintiff in error. That case was brought to this court from a judgment of the supreme court of Pennsylvania (96 Pa. 258), holding that a railway postal clerk was not a passenger within the meaning of the Pennsylvania act, and hence had no right to recover for injuries suffered by him in consequence of the negligence of an employee of the company. The Federal ground there relied upon was substantially the one here asserted; that is, the power of the government of the United States to establish postoffices and post roads, and the effect of the legislation of Congress and the act of the Postmaster General in appointing mail clerks thereunder. After fully considering the subject the case was dismissed because no substantial Federal ground was involved, the court saying (113 U. S. 221, 28 L. ed. 981, 5 Sup. Ct. Rep. 428):

This brings us to the second contention,the repugnancy of the Pennsylvania statute to the commerce clause of the Constitution. It is apparent from the decision in the Price Case, just previously referred to, that in deciding that question we must determine the application of the statute to the plaintiff in error, wholly irrespective of the fact that at the time he was injured he was a railway .postal clerk. In other words, the validity or invalidity of the statute is to be adjudged precisely as if the plaintiff was, at the time of the injury, serving for hire in the employment of a private individual or corporation.

Under the circumstances we have stated, the case of Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 48 L. ed. 268, 24 Sup. Ct. Rep. 132, clearly establishes the unsoundness of the contention that the Pennsylvania statute in question was void because in conflict with the commerce clause. In that case a horse was shipped from a point in the state of New York to a point in the state of Pennsylvania under a bill of lading which limited the right of recovery to not exceeding $100 for any injury which might be occasioned to the animal during the transit. The horse was hurt within the state of Pennsylvania through the negligence of a connecting carrier. In the courts of Pennsylvania, applying the Pennsylvania doctrine which denies the right of a common carrier to limit its liability for injuries resulting from negligence, a recovery was had in the sum of $10,000, the value of the animal. On writ of error from this court the judg ment of the supreme court of Pennsylvania was affirmed, it being held that, at least, in the absence of legislation by Congress on "The person thus to be carried with the the subject, the effect of the commerce clause mail matter, without extra charge, is no of the Constitution was not to deprive the more a passenger because he is in charge of state of Pennsylvania of authority to legisthe mail, nor because no other compensation late as to those within its jurisdiction conis made for his transportation, than if he cerning the liability of common carriers, had no such charge; nor does the fact that although such legislation might, to some exhe is in the employment of the United tent, indirectly affect interstate commerce. States, and that defendant is bound, by con- The ruling in the Hughes Case in effect but tract with the government, to carry him, reiterated the principle adopted and applied affect the question. It would be just the in Chicago, M. & St. P. R. Co. v. Solan, 169 same if the company had contracted with U. S. 133, 42 L. ed. 688, 18 Sup. Ct. Rep. 289, any other person who had charge of freight where an Iowa statute forbidding a common on the train to carry him without additional | carrier from contracting to exempt itself

from liability was sustained as to a person | that fact did not deprive the state of Pennwho was injured during an interstate trans-sylvania of its authority to legislate so as portation.

The contention that because, in the cases referred to, the operation of the state laws which were sustained was to augment the liability of a carrier, therefore the rulings are inapposite here, where the consequence of the application of the state statute may be to lessen the carrier's liability, rests upon a distinction without a difference. The result of the previous rulings was to recognize, in the absence of action by Congress, the power of the states to legislate, and of course this power involved the authority to regulate as the state might deem best for the public good, without reference to whether the effect of the legislation might be to limit or broaden the responsibility of the carrier. In other words, the assertion of Federal right is disposed of when we determine the question of power, and doing so does not involve considering the wisdom with which the lawful power may have been, under stated conditions, exerted.

to affect persons and things within its borders. The commerce clause not being controlling in the absence of legislation by Congress, it follows, of necessity, that the plaintiff in error, as an incident of his right to travel from state to state, did not possess the privilege, as to an accident happen-. ing in Pennsylvania, to exert a cause of action not given by the laws of that state, and had no immunity exempting him from the control of the state legislation.

The proposition that the statute denied to the plaintiff in error the equal protection of the laws because it "capriciously, arbitrarily, and unnaturally," by the classification made, deprived railway mail clerks of the rights of passengers, which they might have enjoyed if the statute had not been enacted, is without merit. The classification made by the statute does not alone embrace railway mail clerks, but places in a class by themselves such clerks and others whose employment in and about a railroad subjects them to greater peril than passengers in the strictest sense. This general difference renders it imposible in reason to say, within the meaning of the 14th Amendment, that the legislature of Pennsylvania, in classifying passengers in the strict sense in one class and those who are subject to greater risks, including railway mail clerks, in another, acted so arbitrarily as to violate the equal protection clause of the 14th Amend.

And the views previously stated are adequate to dispose of the assertion that the Pennsylvania statute is void for repugnancy to the 14th Amendment. If it be conceded, as contended, that the plaintiff in error could have recovered but for the statute, it does not follow that the legislature of Pennsylvania, in preventing a recovery, took away a vested right or a right of property. As the accident from which the cause of action is asserted to have arisen occurred long aft-ment. er the passage of the statute, it is difficult to grasp the contention that the statute deprived the plaintiff in error of the rights just stated. Such a contention, in reason, must

Judgment affirmed.

rest upon the proposition that the state of C. H. NICHOLS LUMBER COMPANY, Piff.

Pennsylvania was without power to legislate on the subject, a proposition which we have adversely disposed of. This must be, since it would clearly follow, if the argument relied upon were maintained, that the state would be without power on the subject. For it cannot be said that the state had authority in the premises if that authority did not even extend to prescribing a rule which would be applicable to conditions wholly arising in the future.

in Err.,

V.

CHARLES FRANSON.

Error to circuit court-certificate-jurisdiction below.

1. The certificate of a Federal circuit court may be considered by the Supreme Court on the direct review authorized by the act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488), for the purpose of supplying the failure of the record to show when and how the quesThe contention that because plaintiff in tion of jurisdiction was raised, if the eleerror, as a citizen of the United States, had ments necessary to decide the question are a constitutional right to travel from one in the record, although it is the better pracstate to another, he was entitled, as the re-tice to make apparent on the record, by a sult of an accident happening in Pennsyl- bill of exceptions or other appropriate mode, vania, to a cause of action not allowed by the fact that the question of jurisdiction the laws of that state, is in a different form was raised and passed upon, and the eleto reiterate that the Pennsylvania statutements upon which the decision of the quesError to circuit court-certificate-jurisdiction below.

was repugnant to the commerce clause of the Constitution of the United States. Conceding, if the accident had happened in Ohio, there would have been a right to recover,

tion was based.

2. In deciding the question of the jurisdiction below which is shown by the cer

tificate of the Federal circuit court to have | defendant was a corporation organized under been raised, the Supreme Court cannot resort to the statements in the certificate for the purpose of supplying elements of decision which it could not properly consider in an action at law without a bill of exceptions. Courts-jurisdiction of Federal circuit court -sufficiency of allegation to show alien

age.

3. The alienage of the plaintiff is sufficiently alleged to sustain the jurisdiction of a Federal circuit court by an averment in the complaint that "the plaintiff now is, and for more than one year last past has been, a resident of Washington and a citizen of Sweden," although, at the time the action was brought, Sweden was under a monarchical form of government, since the designation "citizen of Sweden" could only have been intended as a statement of the nationality of the plaintiff, viz., the country to which he bore allegiance.

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the laws of the state of Washington, and doing business in the state of Washington, and that the plaintiff was, at the time of the filing of the complaint, and had been for more than a year prior thereto, "a resident of Washington and a citizen of Sweden." Admitting its incorporation, and that it was doing business in the state of Washington, the defendant, by its answer, specifically denied each and every other allegation of the first as well as other specified paragraphs of the complaint.

The cause was tried to a jury, and, after verdict and remittitur of a portion thereof, a judgment was entered in favor of plaintiff. The record does not contain a bill of exceptions, and in the brief of counsel for plaintiff in error it is stated that none was pre

pared.

This writ of error, upon the ground solely of a want of jurisdiction in the trial court, was prayed and allowed, and a formal cerArgued October 17, 1906. Decided December tificate was made by the judge, reciting to

IN

3, 1906.

the time when and how the question of jurisdiction was raised and decided, accompanied with a statement of the pleadings and of the court's impression of certain testi

N ERROR to the Circuit Court of the United States for the Western District of Washington to review a judgment for plaintiff in an action for personal injuries. Af-mony given at the trial by the plaintiff,

firmed.

Ideemed by the court pertinent to the elucidation of the question of jurisdiction. The certificate concludes with the statement of enumerated "questions of jurisdiction," Messrs. Walter S. Fulton and Martin J. cision, all of them being based upon the which the court was of opinion arose for de

The facts are stated in the opinion. Messrs. Carroll T. Bond and William L. Marbury for plaintiff in error.

Lund for defendant in error.

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A motion has been made to dismiss the writ of error, among others, on the ground of the absence of a bill of exceptions, and the character of the order appealed from. We pass to the merits of the case without stopping to review the grounds of the motion, as we think they will be substantially disposed of by the views which we shall hereafter express.

By this writ of error the C. H. Nichols By this writ of error the C. H. Nichols Lumber Company seeks the reversal of a judgment obtained by Charles Franson in the circuit court of the United States for the western district of Washington. Considering the record alone, and putting out of view for the moment the effect of statements contained in a certificate made by the court below on the allowance of the writ of error, the case is this: The action was brought to recover for personal injuries alleged to have been sustained while in the employ of the defendant. The jurisdiction of the court below was invoked solely upon the ground of diversity of citizenship, it being alleged in the first paragraph of the complaint that the

overruling by the court of a motion to dismiss the action for want of jurisdiction, which motion, it is recited in the certificate, was made between verdict and judgment. And the only ground here assigned as error is predicated upon the action of the court in denying such motion to dismiss.

As the circuit court was without power to make a certificate containing a statement of facts as the basis for legal propositions upon which it desired the guidance of this court (Mexican C. R. Co. v. Eckman, 187 U. S. 432, 47 L. ed. 246, 23 Sup. Ct. Rep. 211; United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983), it follows, speaking in a general sense, that our right to review on a direct proceeding concerning the jurisdiction of that court must depend upon the record, and not upon the mere statement of facts made in the certificate prepared by the trial court. Applying this general rule, as it nowhere appears from the record that the issue as to jurisdiction presented by the motion to dismiss, the overruling of which is the sole ground for reversal relied upon in the assignment of error, was made or passed upon by the court, we should be constrained to dismiss this writ of error on the ground that the

record did not disclose the presence in the | the two countries were bound to assist each case of the question of jurisdiction which is other in the event of war, they were othermade the basis of the assignment of error. wise free and independent. 9 Century DicAs, however, under the judiciary act of 1891 tionary and Encyclopedia, 969. The alle[26 Stat. at L. 826, chap. 517, U. S. Comp. gation that the plaintiff was a resident of Stat. 1901, p. 488], on a direct review of a the state of Washington clearly shows that question of jurisdiction, the trial judge is the designation "citizen of Sweden" was not authorized to certify as to the existence of employed to indicate mere residence, and such question, we think we may look at his could only have been intended as a statecertificate for the purpose of ascertaining ment of the nationality of the plaintiff,-the when and how the question of jurisdiction country to to which he bore allegiance. was raised, although, for the purpose of de- Whether, as contended for the defendant in ciding the question shown to have been thus error, the plaintiff, if he owed allegiance to raised, we may not resort to the statements the ruler of the Kingdom of Sweden, was in the certificate for the purpose of supply- properly described, in the strictest technical ing elements of decision which we could sense, as a citizen instead of as a subject of not properly consider in an action at law Sweden, we need not consider. The meanwithout a bill of exceptions. We have said ing of the pleader being evident, the obthat we may resort to the certificate, injection is without merit. Hennessy v. Richthe absence of a proper showing on the rec-ardson Drug Co. 189 U. S. 25, 47 L. ed. 697, ord as to when and how the question of ju- 23 Sup. Ct. Rep. 532. risdiction was raised and decided, for the limited purpose stated, because the power to do so is implied in a previous decision of the court (North American Transp. & T. Co. v. Morrison, 178 U. S. 262, 44 L. ed. 1061, 20 Sup. Ct. Rep. 869), and because of the general rule that it would be our duty, without action of the trial court or of the parties, to look at the record to determine whether or not the court below had jurisdiction of the action (Thomas v. Ohio State University, 195 U. S. 211, 49 L. ed. 164, 25 Sup. Ct. Rep. 24). It is apparent, under the rule we have stated, that, whilst we must consider the record for the purpose of determining the question of jurisdiction which the certificate shows adequately to have been raised, we may not consider, in passing upon that question, in the absence of a bill of exceptions, the extraneous matter, such as the testimony of the plaintiff, etc., which forms no part of the record. The question, therefore, for decision under these circumstances is merely this: Does the record show jurisdiction in the court below? This solely depends upon the contention that the allegation in the complaint of the alienage of the plaintiff was insufficient.

The allegation was as follows: "That the plaintiff now is, and for more than one year last past has been, a resident of Washington and a citizen of Sweden." In brief, the argument is that at the time the action was brought Sweden was under a monarchical form of government, being, jointly with Norway, under the rule of the King of Sweden and Norway, and if the plaintiff owed allegiance to the government of Sweden he was not a "citizen" but a "subject" of that country. It is not, however, disputed that, although at the time of the bringing of this action Sweden, a limited monarchy, was united to Norway under the same king, and

Whilst we hold that in a case of direct review under the judiciary act of 1891, when the record does not otherwise show when and how the question of jurisdiction was raised, the certificate of the circuit court may be considered for the purpose of supplying such deficiency when the elements necessary to decide the question are in the record, we deem it the better practice in every case of direct review on a question of jurisdiction to make apparent on the record, by a bill of exceptions or other appropriate mode, the fact that the question of jurisdiction was raised and passed upon, and the elements upon which the decision of the question was based. Judgment affirmed.

PAUL HEYMANN, Plff. in Err.,

V.

SOUTHERN RAILWAY COMPANY.

Commerce-in intoxicating liquors-state regulation-Wilson act.

1. Delivery of an interstate shipment of intoxicating liquors to the consignees is essential to constitute their arrival in the state within the meaning of the Wilson act of August 8, 1890 (26 Stat. at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177), subjecting all intoxicating liquors arriving in the state to the laws of such state enacted in the exercise of its police power. * Commerce-intoxicating liquors-state regu

lation-Wilson act.

2. The mere placing of an interstate rier's warehouse to await delivery to the shipment of intoxicauing liquors in the carconsignees does not constitute their arrival in the state within the meaning of the Wilson act of August 8, 1890, subjecting all intoxicating liquors arriving in the state to

*Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Commerce, §§ 30, 31.

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