Where the effect of the judgment of the state court is to deny
the defense that a statute of a territory is a bar to the action, a
claim of federal right is denied and this Court has jurisdiction
under § 709, Rev.Stats., to review the judgment.
Atchison,
Topeka & Santa Fe Ry. v. Sowers, 213 U. S.
55.
The power of Congress to regulate commerce in the District of
Columbia and territories is plenary, and does not depend on the
commerce
Page 215 U. S. 88
clause, and a statute regulating such commerce necessarily
supersedes a territorial statute on the same subject.
An act of Congress may be unconstitutional as measured by the
commerce clause, and constitutional as measured by the power to
govern the District of Columbia and the territories, and the test
of separability is whether Congress would have enacted the
legislation exclusively for the District and the territories.
The rule that the court must sustain an act of Congress as
constitutional unless there is no doubt as to its
unconstitutionality also requires the court to sustain the act
insofar as it is possible to sustain it.
This Court did not, in its decision of the
Employers'
Liability Cases, 207 U. S. 463,
hold the Act of June 11, 1906, c. 3073, 34 Stat. 232,
unconstitutional so far as it related to the District of Columbia
and the territories, and expressly refused to interpret the act as
applying only to such employees of carriers in the district and
territories as were engaged in interstate commerce.
The evident intent of Congress in enacting the Employers'
Liability Act of June 11, 1906, was to enact the curative
provisions of the law as applicable to the District of Columbia and
the territories under its plenary power irrespective of the
interstate commerce feature of the act, and although
unconstitutional as to the latter, as held in
207 U. S. 207 U.S.
463, it is constitutional and paramount as to commerce wholly in
the district and territories.
The Employers' Liability Act of June 11, 106, being a
constitutional regulation of commerce in the District of Columbia
and the territories, necessarily supersedes prior territorial
legislation on the same subject, and noncompliance by the plaintiff
employee with a provision of a territorial statute (in this case,
of New Mexico) cannot be pleaded by the defendant employer as a bar
to an action for personal injuries.
117 S.W. 426
aff'd, and
Hyde v. Southern Ry.
Co., 31 App.D.C.
approved.
The facts, which involve the constitutionality of the Employers'
Liability Law of June 11, 1906, c. 3073, 34 Stat. 23, as applied to
the territories of the United States, are stated in the
opinion.
Page 215 U. S. 90
MR. JUSTICE DAY delivered the opinion of the Court.
In this case, an action was commenced by Enedina Gutierrez, as
administratrix of the estate of Antonio Gutierrez, in the District
Court of El Paso County, Texas, against the El Paso &
Northeastern Railway Company, to recover damages because of the
death of the plaintiff's intestate by wrongful act while engaged in
the service of the railway company, a common carrier, in the
Territory of New Mexico on June 22, 1906. By way of special plea
and answer, the railway company set up a statute of the Territory
of New Mexico, wherein it is provided that no actions for injuries
inflicting death caused by any person or corporation in the
territory shall be maintained unless the person claiming damages
shall, within ninety days after the infliction of the injury
complained of, and thirty days before commencing suit, serve upon
the defendant an affidavit covering certain particulars as to the
injuries complained of, and containing the names and addresses of
all witnesses of the happening of the alleged acts of negligence.
Suit must be brought within one year, and in the district court of
the territory in and for the county in which the injuries were
received, or where in injured person resides, or, in a claim
against a corporation, in the county of the territory where the
corporation has its principal place of business. This act is set
out in full in the marginal note to the case of
Atchison,
Topeka & Santa Fe Ry. Co. v. Sowers, 213 U. S.
55.
The special answer sets forth that the accident happened in the
Territory of New Mexico, while the statute was in full force, and
that its terms and provisions were not complied with.
Page 215 U. S. 91
To the special answer, the plaintiff below interposed a
demurrer, and further, by way of supplemental petition, set forth
that the injuries complained of happened after the passage of the
so-called Employers' Liability Act, June 11, 1906, 34 Stat. 232, c.
3073. This act, the plaintiff alleged, controlled the liability of
the defendant in the case. The district court sustained the
demurrer of the plaintiff to that part of the defendant's answer
which set up the territorial act of New Mexico, to which ruling the
railway company duly excepted. The case then went to trial to a
jury upon issues made concerning the liability of the railway
company under the Federal Employers' Liability Act of June 11,
1906. 34 Stat. 232, c. 3073. The result was a verdict and judgment
in favor of the plaintiff against the railway company. The case was
then taken to the court of civil appeals of Texas, and that court
held that it would not be governed by the territorial statutes, and
that the Employers' Liability Act of June 11, 1906, was
unconstitutional, upon the authority of
Employers' Liability
Cases, 207 U. S. 463, and
certain cases in the Texas court of appeals. Upon rehearing, a
majority of the court held that the provisions of the New Mexico
act as to the presentation of notice of claim for damages was a
condition precedent to a cause of action, and that the trial court
therefore erred in sustaining plaintiff's exception to that part of
the defendant's answer which pleaded the territorial act and
plaintiff's failure to present her claim in accordance with it. 111
S.W. 159. Thereupon the plaintiff took the case to the Supreme
Court of Texas by writ of error, and that court held that the case
was controlled by the act of Congress known as the Employers'
Liability Act, 34 Stat. 232, and that the same was constitutional,
and therefore held that the judgment of the court of civil appeals
should be reversed, and the original judgment of the district court
affirmed. 117 S.W. 426. From the judgment of the supreme court of
the state, a writ of error was prosecuted to this Court.
Among other errors assigned is the failure of the Supreme
Page 215 U. S. 92
Court of Texas to give effect to the defense setting up the
statute of New Mexico as a full defense to the action. While the
Supreme Court of Texas in its opinion conceded that, if the
territorial act of New Mexico alone controlled the action, the
plaintiff must fail for noncompliance with its requirements, it
reversed the judgment of the court of civil appeals and affirmed
the judgment of the district court because, in its opinion, the
liability was controlled by the Employers' Liability Act. The
effect of this judgment of the Supreme Court of Texas was to deny
the defense set up under the territorial act as a complete bar to
the action. The district court sustained the demurrer to the plea
setting up this act, and thereby denied the rights specially set up
under that statute, the Supreme Court of Texas overruled the court
of civil appeals and affirmed the judgment of the district court.
It thereby necessarily adjudicated the defense claimed under the
territorial act against the railway company. If this defense sets
up a federal right within the meaning of § 709 of the Revised
Statutes of the United States, then we have jurisdiction of the
case.
Wabash R. Co. v. Adelbert College, 208 U. S.
38.
That the claim of immunity under the territorial act, because of
the failure of the plaintiff to comply with its provisions as to
the affidavit within ninety days, etc., presented a federal
question within the meaning of § 709 of the Revised Statutes, was
decided in
Atchison, Topeka & Santa Fe Ry. Co. v. Sowers,
supra, in which case it was held that, where suit was brought
in a state court, a claim of defense under the provisions of the
New Mexico statute was a claim of federal right, which, when
adversely adjudicated, gave jurisdiction to this Court to review
the judgment.
Coming to consider the merits, this Court, in
Atchison,
Topeka & Santa Fe Ry. Co. v. Sowers, supra, held that, in
order to give due faith and credit to the territorial statute,
under § 906 of the Revised Statutes of the United
Page 215 U. S. 93
States, the plaintiff suing in a state must show compliance with
the preliminaries of notice and demand as required by the
territorial law. As the answer in the present case set up
noncompliance with these requisites, and the state court sustained
a demurrer thereto, the judgment must be reversed unless the state
court was right in denying the benefit of the territorial act thus
set up because the Federal Employers' Liability Act superseded the
New Mexico law and is constitutional so far as the territories are
concerned.
In view of the plenary power of Congress under the Constitution
over the territories of the United States, subject only to certain
limitations and prohibitions not necessary to notice now, there can
be no doubt that an act of Congress undertaking to regulate
commerce in the District of Columbia and the territories of the
United States would necessarily supersede the territorial law
regulating the same subject.
Is the Federal Employers' Liability Act of June 11, 1906,
unconstitutional so far of it relates to common carriers engaged in
trade or commerce in the territories of the United States? It has
been suggested that this question is foreclosed by a decision of
this Court in the
Employers' Liability cases, supra. In
that case, this Court held that, conceding the power of Congress to
regulate the relations of employer and employee engaged in
interstate commerce, the Act of June 11, 1906, 34 Stat. 232, c.
3073, was unconstitutional in this: that, in its provisions
regulating interstate commerce, Congress exceeded its
constitutional authority in undertaking to make employers
responsible not only to employees when engaged in interstate
commerce, but to any of its employees, whether engaged in
interstate commerce or in commerce wholly within a state. That the
unconstitutionality of the act, so far as it relates to the
District of Columbia and the territories, was not determined is
evident from a consideration of the opinion of the Court in the
case. In answering the suggestion that the words "any employee" in
the statute should be so read as to mean only employees engaged
Page 215 U. S. 94
in interstate commerce, MR. JUSTICE WHITE, delivering the
opinion of the Court, said:
"But this would require us to write into the statute words of
limitation and restriction not found in it. But if we could bring
ourselves to modify the statute by writing in the words suggested,
the result would be to restrict the operation of the act as to the
District of Columbia and the territories. We say this because
immediately preceding the provision of the act concerning carriers
engaged in commerce between the states and territories is a clause
making it applicable to 'every common carrier engaged it trade or
commerce in the District of Columbia or in any territory of the
United States.' It follows, therefore, that common carriers in such
territories, even although not engaged in interstate commerce, are,
by the act, made liable to 'any' of their employees, as therein
defined. The legislative power of Congress over the District of
Columbia and the territories being plenary, and not depending upon
the interstate commerce clause, it results that the provision as to
the District of Columbia and the territories, if standing alone,
could not be questioned. Thus it would come to pass, if we could
bring ourselves to modify the statute by writing in the words
suggested -- that is, by causing the act to read 'any employee when
engaged in interstate commerce' -- we would restrict the act as to
the District of Columbia and the territories, and thus destroy it
in an important particular. To write into the act the qualifying
words therefore would be but adding to its provisions in order to
save it in one aspect, and thereby to destroy it in another -- that
is, to destroy in order to save, and to save in order to
destroy."
207 U. S. 207
U.S. 500.
A perusal of this portion of the opinion makes it evident that
it was not intended to hold the act unconstitutional insofar as it
related to the District of Columbia and the territories, for it is
there suggested that to interpolate in the act the qualifying words
contended for would destroy the act in respect in the District of
Columbia and the territories by
Page 215 U. S. 95
limiting its operation in a field where Congress had plenary
power, and did not depend for its authority upon the interstate
commerce clause of the Constitution. The act in question is set
forth in full in a note to
Employers' Liability Cases,
207 U. S. 490.
We are concerned in the present case with its first section only.
This section reads:
"That every common carrier engaged in trade or commerce in the
District of Columbia, or in any territory of the United States, or
between the several states, or between any territory and another,
or between any territory or territories and any state or states, or
the District of Columbia, or with foreign nations, or between the
District of Columbia and any state or states or foreign nations,
shall be liable to any or its employees, or, in the case of his
death, to his personal representative for the benefit of his widow
and children, if any, if none, then for his parents, if none, then
for his next of kin dependent upon him, for all damages which may
result from the negligence of any of its officers, agents or
employees, or by reason of any defect or insufficiency due to its
negligence in its cars, engines, appliances, machinery, track,
roadbed, ways, or works."
A perusal of the section makes it evident that Congress is here
dealing first with trade or commerce in the District of Columbia
and the territories, and second with interstate commerce, commerce
with foreign nations, and between the territories and the states .
As we have already indicated, its power to deal with trade or
commerce in the District of Columbia and the territories does not
depend upon the authority of the interstate commerce clause of the
Constitution. Upon the other had, the regulation sought to be
enacted as to commerce between the states and with foreign nations
depends upon the authority of Congress granted to it by the
Constitution to regulate commerce among the states and with foreign
nations. As to the latter class, Congress was dealing with a
liability ordinarily governed by state statutes, or controlled by
the common law as administered in the
Page 215 U. S. 96
several states. The federal power of regulation within the
states is limited to the right of Congress to control transactions
of interstate commerce; it has no authority to regulate commerce
wholly of a domestic character. It was because Congress had
exceeded its authority in attempting to regulate the second class
of commerce named in the statute that this Court was constrained to
hold the act unconstitutional. The act undertook to fix the
liability as to "any employee," whether engaged in interstate
commerce or not; and, in the terms of the act, had so interwoven
and blended the regulation of liability within the authority of
Congress with that which was not that the whole act was held
invalid in the respect.
It is hardly necessary to repeat what this Court has often
affirmed -- that an act of Congress is not to be declared invalid
except for reasons so clear and satisfactory as to leave no doubt
of its unconstitutionality. Furthermore, it is the duty of the
court, where it can do so without doing violence to the terms of an
act, to construe it so as to maintain its constitutionality, and
whenever an act of Congress contains unobjectionable provisions
separable from those found to be unconstitutional, it is the duty
of this Court to so declare, and to maintain the act insofar as it
valid. It was held in the
Employers' Liability Cases that,
in order to sustain the act, it would be necessary to write into
its provision words which it did not contain.
Coming to consider the statute in the light of the accepted
rules of construction, we are of opinion that the provisions with
reference to interstate commerce, which were declared
unconstitutional for the reasons stated, are entirely separable
from, and in nowise dependent upon, the provisions of the act
regulating commerce within the District of Columbia and the
territories. Certainly these provisions could stand in separate
acts, and the right to regulate one class of liability in nowise
depends upon the other. Congress might have regulated the subject
by laws applying alone to the territories,
Page 215 U. S. 97
and left to the various states the regulation of the subject
matter within their borders, as had been the practice for many
years.
It remains to inquire whether it is plain that Congress would
have enacted the legislation had the act been limited to the
regulation of the liability to employees engaged in commerce within
the District of Columbia and the territories. If we are satisfied
that it would not, or that the matter is in such doubt that we are
unable to say what Congress would have done omitting the
unconstitutional feature, then the statute must fall.
Illinois
Central R. Co. v. McKendree, 203 U. S. 514;
Employers' Liability Cases, supra.
When we consider the purpose of Congress to regulate the
liability of employer to employee, and its evident intention to
change certain rules of the common law which theretofore prevailed
as to the responsibility for negligence in the conduct of the
business of transportation, we think that it is apparent that, had
Congress not undertaken to deal with this relation in the states
where it had been regulated by local law, it would have dealt with
the subject and enacted the curative provisions of the law
applicable to the District of Columbia and the territories, over
which its plenary power gave it the undoubted right to pass a
controlling law, and to make uniform regulations governing the
subject.
Bearing in mind the reluctance with which this Court interferes
with the action of a coordinate branch of the government and its
duty, no less than its disposition, to sustain the enactments of
the national legislature, except in clear cases of invalidity, we
reach the conclusion that, in the aspect of the act now under
consideration, the Congress proceeded within its constitutional
power, and with the intention to regulate the matter in the
District and territories, irrespective of the interstate commerce
feature of the act.
While not binding as authority in this Court, we may note that
the act, so far as it relates to the District of Columbia,
Page 215 U. S. 98
was sustained in a well considered opinion by the Court of
Appeals of the District of Columbia.
Hyde v. Southern Ry.
Co., 31 App.D.C. 466.
The judgment of the Supreme Court of Texas is
Affirmed.