REUBEN L. MARTIN, Plff. in Err., in turn affirmed a judgment of the Court V.

of Common Pleas of that county, in favor PITTSBURG. & LAKE ERIE RAILROAD of defendant, in an action by a railway COMPANY

postal clerk to recover from a railway com

pany for personal injuries alleged to have Postoffice-congressional power over post been sustained by reason of its negligence. roads-state regulation.

Affirmed. 1. The power of Congress to establish postoffices and post roads is not infringed

See same case below, 72 Ohio St. 659, 76

N. E. 1129. by Pa. act of April 4, 1868, under which a railway postal clerk, injured in the course of his employment, can have no greater

Statement by Mr. Justice White: rights against the railway company than if Reuben L. Martin brought this action to he were an employee.

recover compensation for personal injuries. Commerce-state regulation.

At the time Martin was injured he was on 2. Applying to interstate transporta a train of the railroad company, in the emtion the provisions of Pa. act of April 4, ploy of the United States as a railway post1868, restricting, as against a railway com- al clerk on a route extending from Cleveland, pany, the rights of persons injured in the Ohio, to Pittsburg, Pennsylvania. The injucourse of their employment in or about the railroad to those which an employee of the ries arose from the derailing in Pennsylvania railway company would have under like of the train, by the negligence of the crew circumstances, does not make such statute of a work train, in permitting a switch repugnant to the commerce clause of the leading to a side track to be open. Among Federal Constitution.

other defenses the company pleaded a law Constitutional law-due process of 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 railroau 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 and applicable, was void, first, because conlike circumstances.

trary to the power delegated to Congress to Constitutional law-privileges and immuni- establish postoffices and post roads; second, ties. 4. Privileges and immunities of citizens the Constitution; and, third, because in con

because repugnant to the commerce clause of of the United States are not denied by ap- Alict with the equal protection and due procplying to interstate transportation the provisions of Pa. act of April 4, 1868, restrict-ess clauses of the 14th Amendment, and ing, as against a a railroad company, the also the clause prohibiting a state from rights of persons injured in the course of making or enforcing any law which shall their employment in or about the railroad abridge the privileges or immunities of citito those which an employee of the railway zens of the United States. company would have under like circum

On trial before a jury the court held the stances.

statute in question to be applicable and Constitutional law-equal protection of the valid, and hence operative to defeat a relaws-classification. 5. Restricting railway mail clerks and of the railroad company was severally af

covery. A verdict and judgment in favor railroad subjects them to greater peril than firmed by the circuit court and by the supassengers in the strict sense to such right preme court of the state of Ohio. of action against the railway company for injuries received in the course of their em- Messrs. Charles Koonce, Jr., Robert B. ployment as a railway employee would have Murray, and William S. Anderson for plainunder like circumstances is a reasonable tiff in error. classification, which sustains the provision Messrs. James P. Wilson and Arrel, Wil. of Pa. act of April 4, 1868, making it, as

,

. against the objection that such statute de son, & Harrington for defendant in error. nies the equal protection of the laws.

Mr. Justice White, after making the fore

going statement, delivered the opinion of [No. 66.]

the court: Argued October 26, 29, 1906. Decided De- We quota the Pennsylvania statute of cember 3, 1906.

April 4, 1868, upon which the case turns:

"Be it enacted by the Senate and House

State of Ohio to review a judgment which of Pennsylvania, in General Assembly met: affirmed a judgment of the Circuit Court of It is hereby enacted by the authority of the Mahoning County, in that state, which had I 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 tha 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, This brings us to the second contention,presents no Federal question, we are uncon- the repugnancy of the Pennsylvania statute cerned with that matter, although it may be to the commerce clause of the Constitution. observed in passing that it is conceded in It is apparent from the decision in the Price the argument at bar that under the settled Casa, just previously referred to, that in deconstruction given to the statute by the su ciding that question we must determine the preme court of Pennsylvania the plaintiff, application of the statute to the plaintiff as a railway postal clerk, was not a passen in error, wholly irrespective of the fact that ger, and had no greater rights in the event at the time he was injured he was a railway of being injured in the course of his em..postal clerk. In other words, the validity or ployment than would have had an employee invalidity of the statute is to be adjudged of the railroad company.

precisely as if the plaintiff was, at the time Was the application of the statute thus of the injury, serving for hire in the emconstrued to a railway postal clerk of the ployment of a private individual or corpoUnited States in conflict with the power of ration. Congress to establish postoffices and post Under the circumstances we have stated, roads?

the case of Pennsylvania R. Co. v. Hughes, In Price v. Pennsylvania R. Co. 113 U. 191 U. S. 477, 48 L. ed. 268, 24 Sup. Ct. Rep. S. 221, 28 L. ed. 981, 5 Sup. Ct. Rep. 427, 132, clearly establishes the unsoundness of this question was in effect foreclosed against the contention that the Pennsylvania statthe plaintiff in error. That case was brought ute in question was void because in conflict to this court from a judgment of the su- with the commerce clause. In that case a preme court of Pennsylvania (96 Pa. 258), horse was shipped from a point in the state holding that a railway postal clerk was not of New York to a point in the state of a passenger within the meaning of the Penn- Pennsylvania under a bill of lading which sylvania act, and hence had no right to re limited the right of recovery to not exceedcover for injuries suffered by him in conse- ing $100 for any injury which might be ocquence of the negligence of an employee of casioned to the animal during the transit. the company. The Federal ground there re- The horse was hurt within the state of lied upon was substantially the one here as- Pennsylvania through the negligence of a serted; that is, the power of the government connecting carrier. In the courts of Penn. of the United States to establish postoffices sylvania, applying the Pennsylvania doctrine and post roads, and the effect of the legisla- which denies the right of a common carrier tion of Congress and the act of the Post- to limit its liability for injuries resulting master General in appointing mail clerks from negligence, a recovery was had in the thereundər. After fully considering the sub- sum of $10,000, the value of the animal. ject the case was dismissed because no sub-On writ of error from this court the judge stantial Federal ground was involved, the ment of the supreme court of Pennsylvania court saying (113 U. S. 221, 28 L. ed. 981, was affirmed, it being held that, at least, 5 Sup. Ct. Rep. 428):

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 ex. he 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.

to affect persons and things within its borThe contention that because, in the cases ders. The commerce clause not being conreferred to, the operation of the state laws trolling in the absence of legislation by which were sustained was to augment the Congress, it follows, of necessity, that the liability of a carrier, therefore the rulings plaintiff in error, as an incident of his right are inapposite here, where the consequence to travel from state to state, did not posof the application of the state statute may sess the privilege, as to an accident happen-. be to lessen the carrier's liability, rests upon ing in Pennsylvania, to exert a cause of aca distinction without a difference. The re- tion not given by the laws of that state, sult of the previous rulings was to recognize, and had no immunity exempting him from in the absence of action by Congress, the the control of the state legislation. power of the states to legislate, and of The proposition that the statute denied course this power involved the authority to to the plaintiff in error the equal protection regulate as the state might deem best for of the laws because it “capriciously, arbithe public good, without reference to wheth- trarily, and unnaturally,” by the classificaer the effect of the legislation might be to tion made, deprived railway mail clerks of limit or broaden the responsibility of the the rights of passengers, which they might carrier. In other words, the assertion of have enjoyed if the statute had not been enFederal right is disposed of when we deter- acted, is without merit. The classification mine the question of power, and doing soo made by the statute does not alone embrace does not involve considering the wisdom railway mail clerks, but places in a class by with which the lawful power may have been, themselves such clerks and others whose emunder stated conditions, exerted.

ployment in and about a railroad subjects And the views previously stated are ade-them to greater peril than passengers in quate to dispose of the assertion that the the strictest sense. This general difference Pennsylvania statute is void for repugnancy renders it imposible in reason to say, withto the 14th Amendment. If it be conceded, in the meaning of the 14th Amendment, that as contended, that the plaintiff in error could the legislature of Pennsylvania, in classifyhave recovered but for the statute, it does ing passengers in the strict sense in one not follow that the legislature of Pennsyl- class and those who are subject to greater vania, in preventing a recovery, took away risks, including railway mail clerks, in ana vested right or a right of property. As other, acted so arbitrarily as to violate the the accident from which the cause of action equal protection clause of the 14th Amend. is asserted to have arisen occurred long aft-ment. er the passage of the statute, it is difficult Judgment affirmed. to grasp the contention that the statute deprived the plaintiff in error of the rights just stated. Such a contention, in reason, must rest upon the proposition that the state of C. H. NICHOLS LUMBER COMPANY, Piff.

in Err., Pennsylvania was without power to legislate on the subject,-a proposition which we

CHARLES FRANSON. have adversely disposed of. This must be, since it would clearly follow, if the argument Error to circuit court-certificate-jurisdicrelied upon were maintained, that the state tion below. would be without power on the subject. For 1. The certificate of a Federal circuit it cannot be said that the state had author- court may be considered by the Supreme ity in the premises if that authority did not Court on the direct review authorized by even extend to prescribing a rule which the act of March 3, 1891 (26 Stat. at L. 826, would be applicable to conditions wholly chap, 517, U. S. Comp. Stat. 1901, p. 488),

for the purpose of supplying the failure of arising in the future. The contention that because plaintiff in tion of jurisdiction was raised, if the ele

the record to show when and how the queserror, 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 statute ments upon which the decision of the ques

tion was based. was repugnant to the commerce clause of the Constitution of the United States. Con

Error to circuit court-certificate-jurisdic

tion below. ceding, if the accident had happened in Ohio,

2. In deciding the question of the juristhere would have been a right to recover,' diction below which is shown by the cer

pared.

tificate of the Federal circuit court to have | defendant was a corporation organized under been raised, the Supreme Court cannot resort the laws of the state of Washington, and doto the statements in the certificate for the ing business in the state of Washington, purpose of supplying elements of decision and that the plaintiff was, at the time of the which it could not properly consider in an filing of the complaint, and had been for action at law without a bill of exceptions.

more than a year prior thereto, "a resident Courts-jurisdiction of Federal circuit court of Washington and a citizen of Sweden.” -sufficiency of allegation to show alien- Admitting its incorporation, and that it was age.

3. The alienage of the plaintiff is suffi- doing business in the state of Washington, ciently alleged to sustain the jurisdiction of the defendant, by its answer, specifically dea Federal circuit court by an averment in nied each and every other allegation of the the complaint that “the plaintiff now is, and first as well as other specified paragraphs for more than one year last past has been, of the complaint. a resident of Washington and a citizen of The caus'a was tried to a jury, and, after Sweden," although, at the time the action verdict and remittitur of a portion thereof, was brought, Sweden was under a monarch

a judgment was entered in favor of plaintiff. ical form of government, since the designa- The record does not contain a bill of exception "citizen of Sweden” could only have been intended as a statement of the nation- tions, and in the brief of counsel for plainality of the plaintiff,—viz., the country to tiff in error it is stated that none was prewhich he bore allegiance.

This writ of error, upon the ground solely [No. 30.]

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 3, 1906.

the time when and how the question of ju.

risdiction was raised and decided, accompaIN N ERROR to the Circuit Court of the nied with a statement of the pleadings and

United States for the Western District of of the court's impression of certain testiWashington to review a judgment for plaintiff in an action for personal injuries. Af. mony given at the trial by the plaintiff,

deemed by the court pertinent to the elucifirmed. The facts are stated in the opinion.

dation of the question of jurisdiction. The

certificate concludes with the statement of Messrs. Carroll T. Bond and William L.

enumerated "questions of jurisdiction,” Marbury for plaintiff in error.

which the court was of opinion arose for deMessrs. Walter S. Fulton and Martin J. cision, all of them being based upon the Lund for defendant in error.

overruling by the court of a motion to dis

miss the action for want of jurisdiction, Mr. Justice White delivered the opinion of which motion, it is recited in the certificate, the court:

was made between verdict and judgment. A motion has been made to dismiss the And the only ground here assigned as error writ of error, among others, on the ground is predicated upon the action of the court in of the absence of a bill of exceptions, and

denying such motion to dismiss. the character of the order appealed from.

As the circuit court was without power We pass to the merits of the case without to make a certificate containing a statement stopping to review the grounds of the mo- of facts as the basis for legal propositions tion, as we think they will be substantially disposed of by the views which we shajt upon which it desired the guidance of this

court (Mexican C. R. Co. v. Eckman, 187 hereafter express.

U. S. 432, 47 L. ed. 246, 23 Sup. Ct. Rep. By this writ of error the C. H. Nichols 211; United States v. Rider, 163 U. S. 132, Lumber Company seeks the reversal of a 41 L. ed. 101, 16 Sup. Ct. Rep. 983), it foljudgment obtained by Charles Franson in lows, speaking in a general sense, that our the circuit court of the United States for the right to review on a direct proceeding con. western district of Washington. Consider-cerning the jurisdiction of that court must ing the record alone, and putting out of view depend upon the record, and not upon the for the moment the effect of statements mere statement of facts made in the certificontained in a certificate made by the court cate prepared by the trial court. Applying below on the allowance of the writ of error, this general rule, as it nowhere appears from the case is this: The action was brought to the record that the issue as to jurisdiction recover for personal injuries alleged to have presented by the motion to dismiss, the been sustained while in the employ of the overruling of which is the sole ground for defendant. The jurisdiction of the court be- reversal relied upon in the assignment of low was invoked solely upon the ground of error, was made or passed upon by the diversity of citizenship, it being alleged in court, we should be constrained to dismiss the first paragraph of the complaint that the 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 other. made 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 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 mean- . without 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 recardson 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 Whilst we hold that in a case of direct relimited purpose stated, because the power view under the judiciary act of 1891, when to do so is implied in a previous decision of the record does not otherwise show when the court (North American Transp. & T. and how the question of jurisdiction was Co. v. Morrison, 178 U. S. 262, 44 L. ed. raised, the certificate of the circuit court 1061, 20 Sup. Ct. Rep. 869), and because of may be considered for the purpose of supthe general rule that it would be our duty, plying such deficiency when the elements without action of the trial court or of the necessary to decide the question are in the parties, to look at the record to determine record, we deem it the better practice in whether or not the court below had juris- every case of direct review on a question of diction of the action (Thomas v. Ohio State jurisdiction to make apparent on the record, University, 195 U. S. 211, 49 L. ed. 164, 25 by a bill of exceptions or other appropriate Sup. Ct. Rep. 24). It is apparent, under the mode, the fact that the question of juris. rule we have stated, that, whilst we must diction was raised and passed upon, and the consider the record for the purpose of deter- elements upon which the decision of the mining the question of jurisdiction which question was based. the certificate shows adequately to have been

Judgment affirmed. raised, we may not consider, in passing upon that question, in the absence of a biil of exceptions, the extraneous matter, such as the testimony of the plaintiff, etc., which PAUL HEYMANN, Plff. in Err., forms no part of the record. The question, therefore, for decision under these circum

SOUTHERN RAILWAY COMPANY. stances is merely this: Does the record show jurisdiction in the court below? This solely Commerce-in intoxicating liquors-state depends upon the contention that the alle

regulation-Wilson act. gation in the complaint of the alienage of 1. Delivery of an interstate shipment of the plaintiff was insufficient.

intoxicating liquors to the consignees is esThe allegation was as follows: "That the sential to constitute their arrival in the plaintiff now is, and for more than one year state within the meaning of the Wilson act last past has been, a resident of Washington of August 8, 1890 (26 Stat. at L. 313, chap. and a citizen of Sweden.” In brief, the ar- 728, U. S. Comp. Stat. 1901, p. 3177), subgument is that at the time the action was jecting all intoxicating liquors arriving in brought Sweden was under a monarchical the state to the laws of such state enacted form of government, being, jointly with in the exercise of its police power. * Norway, under the rule of the King of Swe-Commerce—intoxicating liquors-state regu

lation-Wilson act. den and Norway, and if the plaintiff owed allegiance to the government of Sweden he

2. The mere placing of an interstate was not a "citizen” but a “subject” of that rier's warehouse to await delivery to the

shipment of intoxicating liquors in the car. country. It is not, however, disputed that, consignees does not constitute their arrival although at the time of the bringing of this in the state within the meaning of the Wilaction Sweden, a limited monarchy, was

son act of August 8, 1890, subjecting all inunited to Norway under the same king, and 'toxicating liquors arriving in the state to

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

V.