When a federal question does exist, the writ of error will not
be dismissed as frivolous or as foreclosed by former decisions when
analysis of those decisions is necessary, where there has been
division of opinion in the court below, as in this case, and
conflict of opinion in prior decisions as to the point
involved.
This Court is not concerned with the construction given by a
state court to the statute of another state unless such
construction offends a properly asserted federal right.
Whether a state court failed to give the full faith and credit
required by the federal Constitution to a statute of another state
because it did not construe it as construed by the courts of the
latter state is not open in this Court unless the question is
properly asserted in the state court.
The reiterated assertion in the lower court of federal right
based solely on one provision of the federal Constitution is basis
for the inference that no other provision was relied upon.
A question under the federal Constitution does not necessarily
arise in every case in which the courts of one state are called
upon to construe the statute of another state; the general rule, in
the absence of statutory provision, is that a settled construction
of a statute relied upon to control the court of another state must
be pleaded and proved, and, if not pleaded and proved, the court
construing the statute is not deprived of its independent judgment
in regard thereto.
Page 218 U. S. 37
In determining on writ of error a federal question, this Court
cannot predicate error as to matters which should be, and are not,
pleaded or proved.
The equal protection provision of the Fourteenth Amendment did
not deprive the states of the power to classify, but only of the
abuse of such power; nor is the clause offended against because
some inequality may be occasioned by a classification in
legislation properly enacted under the police power.
A classification in a state police statute proper as to a
general class is not unconstitutional under the equal protection
clause of the Fourteenth Amendment because it ignores inequalities
as to some persons embraced within the general class.
The Employers' Liability Statute of Indiana of 1893 is not
unconstitutional under the equal protection clause of the
Fourteenth Amendment because it subjects railroad employees to a
special rule as to the doctrine of fellow servant,
Tullis v.
Lake Erie & Western R. Co., 175 U.
S. 348;
Pittsburgh Ry. Co. v. Martin,
212 U. S. 560; nor
is it unconstitutional under that clause as to such employees of
railroads, such as bridge carpenters, as are not subject to the
hazards peculiarly resulting from the operation of a railroad.
The fact that, since the decision of a state court under review
construing a police statute of another state as including certain
elements of a class, the highest court of the enacting state has
construed the statute as excluding such elements does not
necessarily enlarge the duty of this Court in determining the
validity of the decision under review.
127 Ky. 276 affirmed.
The facts, which involve the constitutionality of the Employers'
Liability Act of Indiana as applied to employees of railroads
engaged in work other than the direct operation of the railroad,
are stated in the opinion.
Page 218 U. S. 43
MR. JUSTICE WHITE delivered the opinion of the Court.
For personal injuries, Spencer Melton recovered a judgment
against the plaintiff in error in the circuit court of Hopkins
County, Kentucky. The Court of Appeals affirmed the judgment (127
Ky. 276), whereupon this writ of error was prosecuted.
Melton, a carpenter, was injured on March 21, 1905, while in the
employ of the railway company. He was one of a construction crew,
composed of a foreman and six men, who usually did what is
described as bridge carpentering. On the date mentioned, the crew
was engaged, alongside the track of the railway company at Howell,
Indiana, in constructing the foundation of a coal tipple at which
the engines might load coal. A bent or frame of timber, composed of
heavy pieces fastened together and intended to be used as part of
the foundation of the tipple, which was lying flat upon the ground,
was being raised for the purpose of placing it in the foundation.
The lifting was accomplished by means of a block and tackle. A
pulley was fastened by an iron chain to an upright piece of timber,
and through the pulley a rope passed, which was attached at one end
to the bent, so that, on hauling on the rope at the other end, the
bent or frame
Page 218 U. S. 44
was slowly lifted up. Most of the men were engaged in hauling on
the rope, while the foreman and Melton, under his orders, were
standing beneath the bent and were engaged in placing props under
the bent to prevent its lowering, when the strain upon the rope
passing through the pulley was relaxed. While Melton was in this
position, a link of the chain which held the pulley at the top of
the upright post broke, and the bent fell to the ground with Melton
underneath, inflicting upon him serious and permanent injuries. The
chain which broke was furnished by the foreman of the gang, and had
been put in position under his directions.
Melton was a resident of Hopkins County, Kentucky, and he there
commenced this action. The right to recover was based upon the
charge that the injury was occasioned through the furnishing by the
corporation of unsafe tools to do the work of raising the bent.
Besides generally controverting the cause of the injuries, as
alleged, the answer of the company set up the defenses of
contributory negligence and assumption of the risk. Thereafter
Melton was allowed to file an amendment to his petition. By the
amendment, it was substantially alleged that he was injured without
any fault on his part, and solely owing to a defect in the
condition of the works or tools connected with or in use in the
business of the defendant, and that such defect was the result of
negligence on the part of the foreman, who was the person entrusted
with the duty of keeping such tools or works in a proper condition,
and the accident was also charged to have been caused by the
negligent orders of the foreman, to whose directions Melton was
bound to conform. The sufficiency of the facts alleged to entitle
to recovery was expressly based upon the provisions of the first
and second subsections of § 1 of an act of the legislature of
Indiana of March 4, 1893, known as the Employers' Liability
Statute, reading as follows:
Page 218 U. S. 45
"SEC. 1. Be it enacted by the General Assembly of the State of
Indiana that every railroad . . . operating in this state shall be
liable in damages for personal injury suffered by any employee
while in its service, the employee so injured being in the exercise
of due care and diligence, in the following cases:"
"First. When such injury was suffered by reason of any defect in
the condition of ways, works, plant, tools, and machinery connected
with or in use in the business of such corporation, when such
defect was the result of negligence on the part of the corporation,
or some person entrusted by it with the duty of keeping such way,
works, plant, tools, or machinery in proper condition."
"Second. Where such injury resulted from the negligence of any
person in the service of such corporation, to whose order or
direction the injured employee at the time of the injury was bound
to conform, and did conform."
The court, on the motion of the railway company, having required
Melton to determine whether to rely upon the common law or the
statute, he elected to base his right to recover on the statute.
Thereupon the railway company answered the amended petition, and
therein stated as follows:
"Defendant says that the said Indiana statute pleaded cannot and
does not apply to the facts of this case, and plaintiff cannot rely
thereon, and that, under the law of Indiana as to the character of
the work then in hand, the plaintiff was a fellow servant with the
said foreman of the construction crew, for whose negligence the
defendant is not liable."
Before trial, permission being granted, the railway company, by
an additional amendment, defended on the ground that the Indiana
statute relied upon, if held applicable to the facts alleged, was
repugnant to the Constitution of Indiana and to the equal
protection clause of the Fourteenth Amendment. The averments on
this subject were
Page 218 U. S. 46
lengthy, and concluded as follows:
"Defendant distinctly raises the federal question that the said
statute, insofar as made to apply to the facts in this case, is
violative of said provision of the Constitution of the United
States, and void."
The provision referred to, as shown by the context, was the
equal protection clause of the Fourteenth Amendment.
On the trial, counsel for the railway company offered as
evidence of the common law of the State of Indiana on the subject
of fellow servants the opinions of the Supreme Court of Indiana in
the following cases:
New Pittsburgh Coal & Coke Co. v.
Peterson, filed October 31, 1893, 136 Ind. 398;
Southern
Indiana R. Co. v. Harrell, filed October 9, 1903, 161 Ind.
689;
Indianapolis & G. Rapid Transit Co. v. Foreman,
filed January 29, 1904, 162 Ind. 85.
At the close of the evidence for plaintiff, and also upon the
conclusion of all the evidence, the railway company unsuccessfully
moved the court to peremptorily instruct the jury to find in its
favor for the following reasons:
"1. There is no evidence of actionable negligence proven."
"2. The Indiana statute upon which this action is based does not
apply to the facts proven."
"3. Insofar as the terms of the Indiana statute apply to the
facts proven, they are unconstitutional and void. They are
discriminatory against defendant and deny it the equal protection
of the law. They are violative of the Constitution of Indiana and
of section 1, Article XIV of the Constitution of the United States,
being § 1 of the Fourteenth Amendment thereto."
"4. The said Indiana statutes were not intended to be enforced
out of the State of Indiana, and are against the policy of the
State of Kentucky, and not enforceable in a Kentucky forum."
The railway company, in its request for instructions, which were
refused, and to which refusals it excepted,
Page 218 U. S. 47
substantially asked that the general principles of the common
law of Indiana as to fellow servant and assumption of the risk, as
exemplified by the Indiana decisions which it had offered in
evidence, be applied to the case. The court, on the contrary, in
the instructions which it gave, substantially applied the
provisions of the Indiana statute, as by it construed. In the
motion for a new trial, fifteen reasons were stated, those which
made reference to the statute or to the Constitution of the United
States being the following:
"14. The court erred in applying the Indiana statute to the
facts of this case. The court erred in enforcing the Indiana
statute in a Kentucky forum."
"15. The court erred in upholding and applying the Indiana
statute pleaded in this case when same, insofar as applicable to
the facts proven in this case, is unconstitutional and void. It is
discriminatory against defendant and denies it the equal protection
of the law. It is violative of the Constitution of the State of
Indiana and of § 1 of Article XIV of the Constitution of the United
States, which guarantees to defendant the equal protection of the
law."
The court below held that the Supreme Court of Indiana had
construed the statute as applicable both to persons and
corporations operating railroads. It further held that the statute
embraced the case in hand because Melton came within the category
of persons injured in the operation of a railroad, as "the
construction of a coal tipple is . . . essential to the operation
of a railroad." As thus construed, the repugnancy of the statute to
the equal protection clause of the Constitution of the United
States was considered. It was decided that, for the purpose of
abrogating or modifying the common law doctrine of fellow servant,
it was competent for the lawmaking power of a state, without
offending against the equal protection clause, to classify railroad
employees because of
Page 218 U. S. 48
the hazard attached to their vocation, and that a statute doing
this need not be confined to employees who were engaged in and
about the mere movement of trains, but could also validly include
other employees doing work essential to be done to enable the
carrying on of railroad operations. Thus, referring to the alleged
distinction between railroad operatives engaged in train movement
and those who were not, the court said:
"We are unable to see the force of this distinction. A railroad
cannot be run without bridges; bridges cannot be built without
carpenters. The work of a bridge carpenter on a railroad is perhaps
no less perilous than the work of an operative on one of its
trains. Coal tipples are no less essential to the operating of a
railroad than bridges, because the engines cannot be operated
without coal. The construction of a coal tipple is therefore
essential to the operating of a railroad. As has been well said,
the legislature cannot well provide for all subjects in one act.
Legislation must necessarily be done in detail, and an act
regulating railroads violates no constitutional provision because
it is made to apply only to railroads.
Indianapolis &c. R.
Co. v. Kane, 169 Ind. 25;
Schoolcraft, Adm. v. L. & N.
R. Co., 92 Ky. 233;
Chicago &c. R. Co. v.
Stabley, 62 F. 363;
Callahan v. R. Co., 170 Mo. 473,
194 U.S. 628;
Railroad Co. v. Ivey, 73 Ga. 504."
The railway company asked a rehearing for the sole purpose of a
reconsideration of what was referred to as the very important
federal question involved,
viz., "the unconstitutionality
of the Indiana statute, as applied to the facts of this case." The
court permitted the question whether a rehearing should be granted
to be orally argued, and, after such argument, in a brief opinion
denied the request. Two members of the court, however, dissented,
on the ground that the statute as construed was repugnant to the
equal protection clause of the Fourteenth
Page 218 U. S. 49
Amendment. This writ of error was then prosecuted, and the only
reference to the Constitution of the United States made in the
assignment of error filed with the application for the writ was
that embraced in the contention that the Indiana statute could not
be constitutionally applied to the facts without causing the
statute to be repugnant to the Fourteenth Amendment.
We primarily dispose of a motion to dismiss, which is rested
upon the ground that the federal question relied upon has been so
conclusively foreclosed by prior decisions of this Court as to
cause it to be frivolous, and therefore not adequate to confer
jurisdiction. The contention may not prevail, even although it be
admitted that a careful analysis of the previous cases will
manifest that they are decisive of this. We say this because, for
the purpose of the motion to dismiss, the issue is not whether the
federal question relied upon will be found, upon an examination of
the merits, to be unsound, but whether it is apparent that such
question has been so explicitly foreclosed as to leave no room for
contention on the subject, and hence cause the question to be
frivolous. That this is not the case here we think results from the
following considerations: (a) because analysis and expounding are
necessary in order to make clear the decisive effect of the prior
decisions upon the issue here presented; (b) because the division
in opinion of the lower court as to whether the statute as
construed was repugnant to the equal protection clause of the
Fourteenth Amendment suggests that the controversy on the subject
here presented should not be treated as of such a frivolous
character as not to afford ground for jurisdiction to review the
action of the court below, and (c) because, while an examination of
the opinions of state courts of last resort will show that there is
unanimity as to the power, consistently with the equal protection
of the law clause, to classify railroad employees actually engaged
in the hazardous work of moving trains,
Page 218 U. S. 50
such examination will also disclose that there is some conflict
of view as to whether a statute on that subject as broad as is the
statute under review, as construed below, is consistent with the
clause, thus additionally serving to point to the necessity of
analyzing and considering the subject anew instead of treating it
as being so obviously foreclosed as not to permit an examination of
the subject.
Coming to the merits, we at once premise that we are not
concerned with the construction affixed by the court below to the
Indiana statute unless it be that that construction offends against
some federal right properly asserted and open to our consideration.
In the argument at bar in behalf of the railway company, two rights
of this character are insisted upon. First, it is said that the
court below, in applying the statute, has caused it to embrace a
class of employees which the statute did not include, and thereby
gave it a wrongful construction, in violation of the full faith and
credit clause of the Constitution of the United States. Second,
that, in any event, the statute as construed is repugnant to the
equal protection clause of the Fourteenth Amendment. We separately
dispose of these propositions.
The full faith and credit clause. The contentions as to
this proposition rest upon the assumption that it has been
conclusively settled by the Supreme Court of Indiana that the
statute only changed the general rule prevailing in that state in
respect to the doctrine of fellow servant as to railroad employees
actually engaged in the hazard of train service, and therefore did
not include an employee engaged in the character of work which
Melton was performing when injured, and that to give the statute a
contrary meaning was to violate the full faith and credit clause.
If, however, the premise upon which the proposition rests, and the
legal deduction based upon that premise, be, for the sake of the
argument, conceded, the contention is nevertheless without merit
because of the
Page 218 U. S. 51
failure of the railway company to plead or in any adequate way
call the attention of the court below to the fact that, in
connection with the proper construction of the statute, the benefit
of the due faith and credit clause of the Constitution of the
United States was relied on. We say this because the statement
which we have previously made of the case fails to show from first
to last, even up to and including the application for rehearing,
the assertion of any claim to the protection of the full faith and
credit clause. Indeed, that statement not only shows a failure to
make such claim, but discloses such direct and express action on
the part of the railway company as justly to give rise to the
inference that a reliance upon any claim of federal right resulting
from the full faith and credit clause was not thought to be
involved in the case. We say this because the frequent and
reiterated assertions of federal right, based solely upon the equal
protection clause of the Fourteenth Amendment, sustain such
conclusion.
Further, even if, for the sake of the argument only, the failure
to plead the full faith and credit clause, or to direct the
attention of the court below to the fact that reliance was placed
upon that clause, could be supplied upon the theory that, as the
cause of action was based upon an Indiana statute, by implication
the due faith and credit clause was necessarily involved,
nevertheless the contention would be without merit. This follows
because, as pointed out in
Finney v. Guy, 189 U.
S. 335,
189 U. S. 340,
and
Allen v. Allegheny Co., 196 U.
S. 458,
196 U. S. 463,
it is not true to say that necessarily, in every case where the
court of one state is called upon to determine the proper
construction of a statute of another state, a question under the
Constitution of the United States arises. Although the Indiana
statute was at issue and its meaning was necessarily involved, the
duty of construing it rested upon the court below. The general rule
is that, in the absence
Page 218 U. S. 52
of a statute to the contrary, if a settled construction by the
court of last resort of a state enacting a statute is relied upon
to control the judgment of the court of another state in
interpreting the statute, such settled construction must be pleaded
and proved.
Eastern Bldg. & Loan Assn. v. Ebaugh,
185 U. S. 114, and
cases cited. As, however, it is not asserted that there was a
statute of Kentucky controlling the courts of that state in
construing the statutes of other states, and as there was no
pleading or proof as to the existence of any such settled
construction, it follows that there is nothing presented which can
be held to have deprived the court below of its power to exercise
its independent judgment in interpreting the statute. Our duty, of
course, is confined to determining whether error was committed by
the court below as to the federal questions involved, and as it is
impossible to predicate error as to matters not pleaded or proved
in the court below, which were essential to be pleaded and proved,
it follows that the contention concerning the denial of the
protection of the full faith and credit clause furnishes no ground
for reversal.
Johnson v. N.Y. Life Ins. Co., 187 U.
S. 491,
187 U. S.
495.
The equal protection of the law clause. That the
Fourteenth Amendment was not intended to and does not strip the
states of the power to exert their lawful police authority is
settled, and requires no reference to authorities. And it is
equally settled -- as we shall hereafter take occasion to show --
as the essential result of the elementary doctrine that the equal
protection of the law clause does not restrain the normal exercise
of governmental power, but only abuse in the exertion of such
authority, therefore that clause is not offended against simply
because, as the result of the exercise of the power to classify,
some inequality may be occasioned. That is to say, as the power to
classify is not taken away by the operation of the equal protection
of the law clause, a wide
Page 218 U. S. 53
scope of legislative discretion may be exerted in classifying
without conflicting with the constitutional prohibition.
It is beyond doubt foreclosed that the Indiana statute does not
offend against the equal protection clause of the Fourteenth
Amendment, because it subjects railroad employees to a different
rule as to the doctrine of fellow servant from that which prevails
as to other employments in that state.
Tullis v. Lake Erie
& W. R. Co., 175 U. S. 348;
Pittsburgh &c. Ry. Co. v. Ross, 212 U.
S. 560. But, while conceding this, the argument is that
classification of railroad employees for the purpose of the
doctrine of fellow servant can only, consistently with equality and
uniformity, embrace such employees when exposed to dangers
peculiarly resulting from the operation of a railroad, thus
affording ground for distinguishing them for the purpose of
classification from co-employees not subject to like hazards or
employees engaged in other occupations. The argument is thus
stated:
"Plaintiff in error does not question the right of the
Legislature of Indiana to classify railroads in order to impose
liability upon them for injuries to their employees incident to
railroad hazards, but it does insist that, to make this a
constitutional exercise of legislative power, the liability of the
railroads must be made to depend upon the character of the
employment, and not upon the character of the employer."
Thus stated, the argument tends to confuse the question for
decision, since there is no contention that the statute as
construed bases any classification upon some supposed distinction
in the person of the employer. The idea evidently intended to be
expressed by the argument is that although, speaking in a general
sense, it be true that the hazards arising from the operation of
railroads are such that a classification of railroad employees is
justified, yet, as in operating railroads some employees are
subject to risks peculiar to such operation and others to risks
which,
Page 218 U. S. 54
however serious they may be, are not, in the proper sense, risks
arising from the fact that the employees are engaged in railroad
work, the legislative authority in classifying may not confound the
two by considering in a generic sense the nature and character of
the work performed by railroad employees collectively considered,
but must consider and separately provide for the distinctions
occasioned by the varying nature and character of the duties which
railroad operatives may be called upon to discharge. In other
words, reduced to its ultimate analysis, the contention comes to
this -- that, by the operation of the equal protection clause of
the Fourteenth Amendment, the states are prohibited from exerting
their legitimate police powers upon grounds of the generic
distinction obtaining between persons and things, however apparent
such distinction may be, but, on the contrary, must legislate upon
the basis of a minute consideration of the distinctions which may
arise from accidental circumstances as to the persons and things
coming within the general class provided for. When the proposition
is thus accurately fixed, it necessarily results that in effect it
denies the existence of the power to classify, and hence must rest
upon the assumption that the equal protection clause of the
Fourteenth Amendment has a scope and effect upon the lawful
authority of the states contrary to the doctrine maintained by this
Court without deviation. This follows since the necessary
consequence of the argument is to virtually challenge the
legislative power to classify and the numerous decisions upholding
that authority. To this destructive end it is apparent the argument
must come, since it assumes that, however completely a
classification may be justified by general considerations, such
classification may not be made if inequalities be detected as to
some persons embraced within the general class by a critical
analysis of the relation of the persons or things otherwise
embraced within the general class. A brief reference to some of the
cases
Page 218 U. S. 55
dealing with the power of a state to classify will make the
error of the contention apparent.
In
Magoun v. Illinois Trust & Savings Bank,
170 U. S. 294,
while declaring that the power of a state to distinguish, select,
and classify objects of legislation was, of course, not without
limitation, it was said, "necessarily this power must have a wide
range of discretion." After referring to various decisions of this
Court, it was observed:
"There is therefore no precise application of the rule of
reasonableness of classification, and the rule of equality permits
many practical inequalities. And necessarily so. In a
classification for governmental purposes, there cannot be an exact
exclusion or inclusion of persons and things."
Again considering the subject in
Orient Ins. Co. v.
Daggs, 172 U. S. 557, it
was reiterated that the legislature of a state has necessarily a
wide range of discretion in distinguishing, selecting, and
classifying, and it was declared that it was sufficient to satisfy
the demand of the Constitution if a classification was practical,
and not palpably arbitrary.
In
Minnesota Iron Co. v. Kline, 199 U.
S. 593, a statute of Minnesota providing that the
liability of railroad companies for damages to employees should not
be diminished by reason of accident occurring through the
negligence of fellow servants was held not to discriminate against
any class of railroads or to deny the equal protection of the laws
because of a proviso which excepted employees engaged in
construction of new and unopened railroads. In the course of the
opinion, the Court said (p.
199 U. S.
598):
"The whole case is put on the proviso, and the argument with
regard to that is merely one of the many attempts to impart an
overmathematical nicety to the prohibitions of the Fourteenth
Amendment."
These principles were again applied in
Martin v. Pittsburgh
&c. R. Co., 203 U. S. 284, and
the doctrines were also fully
Page 218 U. S. 56
considered and reiterated at this term in
Southwestern Oil
Co. v. Texas, 217 U. S. 114.
And, coming to consider the concrete application made of these
general principles in the decisions of this Court which have
construed the statute here in question, and statutes of the same
general character enacted in states other than Indiana, we think,
when rightly analyzed, it will appear that they are decisive
against the contention now made. It is true that, in the
Tullis case, which came here on certificate, the nature
and character of the work of the railroad employee who was injured
was not stated, and that reference in the course of the opinion was
made to some state cases, limiting the right to classify to
employees engaged in the movement of trains. But that it was not
the intention of the Court to thereby intimate that a
classification, if not so restricted, would be repugnant to the
equal protection clause of the Fourteenth Amendment, will be made
clear by observing that the previous case of
Chicago &c. R.
Co. v. Pontius, 157 U. S. 209, was
cited approvingly, in which, under a statute of Kansas classifying
railroad employees, recovery was allowed to a bridge carpenter
employed by the railroad company who was injured while attempting
to load timber on a car. And in the opinion in the
Pontius
case there was approvingly cited a decision of the Court of Appeals
of the Eighth Circuit (
Chicago, R.I. & P. R. Co. v.
Stabley, 62 F. 362) wherein it was held that, under the same
statute, an employee injured in a roundhouse while engaged in
lifting a driving rod for attachment to a new engine could recover
by virtue of the statute. All this is made plainer by the ruling in
St Louis Merchants' Bridge Terminal Ry. Co. v. Callahan,
194 U.S. 628, where, upon the authority of the
Tullis
case, the Court affirmed a judgment of the Supreme Court of
Missouri which held that recovery might be had by a section hand
upon a railroad who, while engaged in warning passersby in a street
beneath
Page 218 U. S. 57
an overhead bridge, was struck by a tie thrown from the
structure.
While, as we have previously said, it is true there are state
decisions dealing with statutes classifying railroad employees
sustaining the restricted power to classify which is here insisted
upon, we do not think it is necessary to review them or to notice
those tending to the contrary. They are referred to in the opinions
rendered in the court below. Nor do we think our duty in this
respect is enlarged because, since the judgment below was rendered,
the court of last resort in Indiana (
Indianapolis &c. Co.
v. Kinney, 171 Ind. 612, and
Cleveland, C.C. & St.L.
Ry. Co. v. Foland, decided April 20, 1910, and not yet
reported) has, upon the theory that it was necessary to save the
statute in question from being declared repugnant to the equality
clause of the state constitution and the Fourteenth Amendment,
unequivocally held that the statute must be construed as restricted
to employees engaged in train service.
Affirmed.