that the injury must arise from an act done in interstate cominerce, and that it was immaterial whether the train was engaged in interstate commerce or not.

§ 537. Concurrent jurisdiction of the state courts.-There is no exclusive jurisdiction in the federal courts declared in this act; but, on the contrary, in the amendment of 1910 it specifically provided in section 6, as amended, that the jurisdiction of the courts of the United States under this act shall be concurrent with the courts of the several states, and no case arising under this act and brought in any court of competent jurisdiction shall be removed to any court of the United States. This amendment was enacted after the opinion in Hoxie v. N. Y., N. H. & H. R. R., 82 Conn. 352, wherein the court declined jurisdiction of a suit asserting rights under this act, upon the ground among other things that congress did not intend that jurisdiction arising under this act should be exercised by the state courts.

It has also been held (see Whittaker v. I. C. Ry., supra) that where the petition states facts which bring the case within the Employers Liability Act, it is covered by the act, whether specifically declared so or not.

In the Colasurdo Case, supra, also prior to the amendment of 1910, the court held in an action removed from the state court, that it was not subject to remand, though it appeared in the trial that the parties were citizens of the same state, if it appeared from the complaint that plaintiff sought to recover under the Employers Liability Act, and where such an averment was made, the federal jurisdiction existed, even though the complaint was dismissed because the plaintiff was not a person so employed.

It has also been held prior to the amendment of 1910 in Miller v. I. C. R. R., 168 Fed. 982, that, where it did not appear from plaintiff's declaration that the construction of this act was involved, the cause was not removable as arising under the laws of the United States. Under this amendment declaring concurrent jurisdiction in the state and federal courts plaintiff in suing in the latter must show in his petition either diverse citizenship, or as assertion of his right of recovery under this statute, and in either case, he must also show the jurisdictional amount of $2,000.00 (after January 1, 1912, $3,000.00) in controversy.

§ 538. Prohibition of contracting out of the act.-It was said by Justice Moody in his dissenting opinion in the Howard case that this prohibition of contracting out of the act which was contained also in the act of 1906, that this clause was open to possible objections, but without intimating any opinion he said that part of the act was separable and independent of the remainder. This was also commented on in the Zikos case, that it was not involved in that case, and the court said that in any event it was clearly separable. The purpose of this enactment was obviously to make legislation effective by prohibiting contracts of exemption against the liability created by the act. Such contracts against liability under statutory requirements have been held violative of public policy, irrespective of statutory prohibition. The prohibition of contracting out of a remedial statute would seem distinguishable from a contract of exemption made by an express agent of the railroad company, entered into as a condition of his employment, such as was held valid in B. & O. Ry. v. Voight, 176 U. S. 497, 44 Fed. 560.

§ 539. The superseding of state statutes.-It was held in Fulgham v. Midland Valley Ry. W. D. of Ark., 167 Fed. 660, 1909, that the act of 1908 supersedes all state statutes regulating the relations of interstate employers and employes engaged in interstate commerce. The court said that the whole act clearly showed that congress undertook the regulation of the relation of employers and employes, that it covered and overlapped the whole state legislation, and was therefore conclusive. This was also the ruling in the Cound Case, where the act of 1908 was held to supersede the common law in the territories, in respect to such liability. The supreme courts of Wisconsin and Missouri held that this was in accordance with the rule of the state courts of those states in relation to the nine hour law of congress, supra.

§ 540. Right of removal under the act.—The provision of the amendment of 1910, providing that no case arising under the act and brought in the state court of competent jurisdiction should be removed to any court of the United States, was construed in Van Brimmer v. Texas, etc., R. Co., 190 Fed. 394, Oct. 1911, by C. C. E. D. Tex., where it was held that this amendment did not deprive a litigant of his right to remove his case to the federal court, if he had that right by reason of diverse citizenship or on account of prejudice or local influence, but only that when a cause arose under the act the suit should not for that reason be removed to the federal court.

THE HOURS OF SERVICE ACT OF 1907.

§ 541. The act of 1907.

542. The constitutionality of the act sustained.

543. The statute not void for uncertainty.

544. The Interstate Commerce Commission had authority to require

reports.

545. No privilege to a corporation or corporation officers against self-incrimination.

§ 541. The act of 1907.

AN ACT To promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this Act shall apply to any common carrier or car

[Common carrier and employees subject to act.]

riers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad in the District of Columbia or any Territory of the United States, or from one State or Territory of the United States or the District of Columbia te any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States.

[Meaning of term "railroad.”]

The term "railroad" as used in this Act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or

[Meaning of term "employees."]

lease; and the term "employees" as used in this Act shall be held to mean persons actually engaged in or connected with the movement of any train.

[Sixteen hours the maximum continuous service of train

men.]

SEC. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this Act to require or permit any employee subject to this Act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or

[Ten consecutive hours off duty.]

permitted again to go on duty until he has had at least ten con

secutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off [Service hours of telegraph and telephone operators.]

duty: Provided, That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-fourhour period on not exceeding three days in any week: Provided

[Commission may extend period.]

further, The Interstate Commerce Commission may after full hearing in a particular case and for good cause shown extend the period within which a common carrier shall comply with the provisions of this proviso as to such case.

[Penalty for violation.]

SEC. 3. That any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district

[Prosecutions.]

court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon satisfactory information being lodged with him; but no such suit shall be brought after the expiration of one year from the date of such violation; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge. In all prosecutions under this Act the common carrier shall be deemed to have had knowledge of all acts of all its officers and agents: Provided, That the provisions of this Act shall not apply

[Unavoidable, accidents, etc.]

in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agents in charge of such employee at the time said employee left a terminal, and which could not have been

[Wrecking, etc., crews.]

foreseen: Provided further, That the provisions of this Act shall not apply to the crews of wrecking or relief trains.

[Enforcement.]

SEC. 4. It shall be the duty of the Interstate Commerce Commission to execute and enforce the provisions of this Act, and all powers granted to the Interstate Commerce Commission are hereby extended to it in the execution of this Act.

[Effective.]

SEC. 5. That this Act shall take effect and be in force one year after its passage.

Approved March 4, 1907.

§ 542. The constitutionality of the act sustained.—In B. & O. R. Co. v. Interstate Commerce Commission, 221 U. S., 55 L. Ed. 878, the supreme court in May, 1911, affirmed the circuit court of Maryland in sustaining a demurrer to a bill of the B. & O. Railroad seeking to enjoin the enforcement of an order of the Interstate Commerce Commission requiring monthly reports from railroads subject to this act. It was claimed that penalties were not limited to interstate commerce, but applied to intrastate railroads and to employes engaged in local business. The court said that the statute in its scope was materially different from the employers liability act of 1906, as there the act applied to any employes of the carrier, while in this statute the limiting words governed employes as well as the carriers. The court said, even if it were true that the interstate and the intrastate operations of its carriers were so interwoven, that it was impracticable for them to divide their employes in such manner that the duties of those who are engaged in connection with interstate commerce could not be confined to that commerce exclusively; the constitutional authority of congress could not be thus denied its effective exercise in its powers to provide for the safety of employes and travelers. Congress was not limited to laws relating to mechanical appliances, but could recognize that the length of hours of service had a direct relation to the efficiency of human agencies upon which protection to life and property necessarily depends. The power of congress therefore to limit the hours of labor of those employes engaged in interstate transportation could not be defeated either by prolonging the period of service through other requirements of the carriers, or by the commanding of duties relating to interstate and intrastate operations.

§ 543. The statute not void for uncertainty.-The court said that the words "except in case of emergency" in section two did not make the application of the act so uncertain as to destroy its