It is urged by defendant in error that "there is a marked distinction between a power to regulate commerce and a power to regulate the affairs of an individual or corporation engaged in such commerce,' and how can it be, it is asked, a regulation of commerce to prevent a carrier from selecting his employees or constraining him to keep in his service those whose loyalty to him is "seriously impaired, if not destroyed, by their prior allegiance to their labor unions?" That the power of regulation extends to the persons engaged in interstate commerce is settled by decision. (Howard v. Illinois Central R. R., supra, and the cases cited in Mr. Justice Moody's dissenting opinion.) The other proposition points to no evil or hazard of evil. Section 10 does not constrain the employment of incompetent workmen and , gives no encouragement or protection to the disloyalty of an employee or to deficiency in his work or duty. If guilty of either he may be instantly discharged without incurring any penalty under the

statute.

Counsel also makes a great deal of the difference between direct and indirect effect upon interstate commerce, and assert that section 10 is an indirect regulation at best and not within the power of Congress to enact. Many cases are cited, which, it is insisted, sustain the contention. I can not take time to review the cases. I have already alluded to the contention, and it is enough to say that it gives too much isolation to section 10. The section is part of the means to secure and make effective the scheme of arbitration set forth in the statute. The contention, besides, is completely answered by Howard v. Illinois Central R. R., supra. In that case, as we have seen, the power of Congress was exercised to establish a rule of liability of a carrier to his employees for personal injuries received in his service. It is manifest that the kind or extent of such liability is neither traffic nor intercourse, the transit of persons or the carrying of things. Indeed such liability may have wider application than to carriers. It may exist in a factory; it may exist on a farm, and in both places, or in commerce-its direct influence might be hard to find or describe. And yet this court did not hesitate to pronounce it to be within the power of Congress to establish. "The primary object," it was said in Johnson v. Railroad, 196 U. S. 1, of the safetyappliance act, "was to promote the public welfare by securing the safety of employees and travelers." The rule of liability for injuries is even more round about in its influence on commerce and as much so as the prohibition of section 10. To contend otherwise seems to me to be an oversight of the proportion of things. A provision of law which will prevent or tend to prevent the stoppage of every wheel in every car of an entire railroad system certainly has as direct influence on interstate commerce as the way in which one car may be coupled to another, or the rule of liability for personal injuries to an employee. It also seems to me to be an oversight of the proportions of things to contend that in order to encourage a policy of arbitration between carriers and their employees which may prevent a disastrous interruption of commerce, the derangement of business, and even greater evils to the public welfare, Congress can not restrain the discharge of an employee, and yet can, to enforce a policy of unrestrained competition between railroads, prohibit reasonable agreements between them as to the rates merchandise shall be carried. And mark the contrast of what is prohibited. In the one case the

restraint, it may be, of a whim-certainly of nothing that affects the ability of an employee to perform his duties; nothing, therefore, which is of any material interest to the carrier; in the other case a restraint of a carefully considered policy which had as its motive great material interests and benefits to the railroads, and, in the opinion of many, to the public. May such action be restricted, must it give away to the public welfare, while the other, moved, it may be, by prejudice and antagonism, is intrenched impregnably in the fifth amendment of the Constitution against regulation in the public interest.

With

I would not be misunderstood. I grant that there are rights which can have no material measure. There are rights which, when exercised in a private business, may not be disturbed or limited. them we are not concerned. We are dealing with rights exercised in a quasi public business and therefore subject to control in the interest of the public.

I think the judgment should be affirmed.

Mr. Justice Holmes, dissenting, said:

I also think that the statute is constitutional, and but for the decision of my brethren I should have felt pretty clear about it.

As we all know, there are special labor unions of men engaged in the service of carriers. These unions exercise a direct influence upon the employment of labor in that business, upon the terms of such employment and upon the business itself. Their very existence is directed specifically to the business, and their connection with it is at least as intimate and important as that of safety couplers, and, I should think, as the liability of master to servant, matters which, it is admitted, Congress might regulate, so far as they concern commerce among the States. I suppose that it hardly would be denied that some of the relations of railroads with unions of railroad employees are closely enough connected with commerce to justify legislation by Congress. If so, legislation to prevent the exclusion of such unions from employment is sufficiently near.

The ground on which this particular law is held bad is not so much that it deals with matters remote from commerce among the States, as that it interferes with the paramount individual rights secured by the fifth amendment. The section is, in substance, a very limited interference with freedom of contract, no more. It does not require the carriers to employ anyone. It does not forbid them to refuse to employ anyone, for any reason they deem good, even where the notion of a choice of persons is a fiction and wholesale employment is necessary upon general principles that it might be proper to control. The section simply prohibits the more powerful party to exact certain undertakings, or to threaten dismissal or unjustly discriminate on certain grounds against those already employed. I hardly can suppose that the grounds on which a contract lawfully may be made to end are less open to regulation than other terms. So I turn to the general question whether the employment can be regulated at all. I confess that I think that the right to make contracts at will that has been derived from the word liberty in the amendments has been stretched to its extreme by the decisions; but they agree that sometimes the right may be restrained. Where there is, or generally is believed to be, an important ground of public policy for restraint

the Constitution does not forbid it, whether this court agrees or disagrees with the policy pursued. It can not be doubted that to prevent strikes, and, so far as possible, to foster its scheme of arbitration, might be deemed by Congress an important point of policy, and Í think it impossible to say that Congress might not reasonably think that the provision in question would help a good deal to carry its policy along. But suppose the only effect really were to tend to bring about the complete unionizing of such railroad laborers as Congress can deal with, I think that object alone would justify the act. I quite agree that the question what and how much good labor unions do, is one on which intelligent people may differ-I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind-but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest, not only of the men, but of the railroads and the country at large.

DECISIONS UNDER COMMON LAW.

EMPLOYER AND EMPLOYEE RELATION STUDENT FIREMANFRAUDULENT REPRESENTATIONS-EFFECT ON LIABILITY Norfolk and Western Railway Company v. Bondurant's Administrator, Supreme Court of Appeals of Virginia, 59 Southeastern Reporter, page 1091.---In this case action was brought to recover for the death of one Bondurant, who was accidentally killed while acting as a student fireman on an engine of the Norfolk and Western Railway Company. The evidence disclosed the fact that Bondurant had practiced fraud in order to secure his position, representing that he was more than 21 years of age, a rule of the company prohibiting the employment of minors in such position without the consent of the parent or guardian. The case was tried in the circuit court of Amherst County, which gave judgment for the plaintiff. The trial proceeded upon the assumption that the relation of master and servant actually existed. This position was denied by the railroad company, and on appeal the supreme court ruled that the relation of master and servant did not exist and that no damages were recoverable in the circumstances. The principal features of the opinion of the court, which was delivered by Judge Keith, are reproduced:

A student fireman may, or may not, be an employee. Whether he is or not in a particular case depends upon circumstances.

In Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, 83 Pac. 439, cited by defendant in error, it was held that a student brakeman, on freight trains of defendant at his own request and by permission of defendant, for the purpose of gaining experience to render him competent to act as a regular brakeman, and who was entirely subject to defendant's orders, and was required to perform such ordinary duties of brakeman as were allotted to him, was a fellow-servant of the other brakemen, although he was receiving no pecuniary compensation.

So, in Barstow v. Old Colony R. Co., 143 Mass. 535, 10 N. E. 255, it was held that if a person undertake voluntarily to perform service for a corporation, and the agent of such corporation assents to his performing such service, he stands in the relation of a servant of the corporation while so engaged, which is the proposition in this case for which we presume it was cited by the defendant in error, and as to the correctness of which there can be no doubt.

In Millsap's Adm'r v. Louisville, etc., Ry. Co., 69 Miss. 423, 13 South. 696, it was held that one who by permission of a railway company acts as fireman of its locomotive is a servant of the company, though he acts without compensation merely to learn the business. He was also held to be a fellow-servant of the train dispatcher, whose negligence caused the injury, and therefore a recovery was denied. But in none of these cases was there misrepresentation as to age or a rule prohibiting the employment of infants.

In all of these cases there is an absence of two circumstances upon which plaintiff in error rests its case: First, that the railroad company prohibited the employment of an infant; and, second, that the deceased, by misrepresenting his age, obtained permission to ride upon the engine where he was injured.

Cases of negligence have become so numerous that it is impossible to discuss all that bear upon the subject, and therefore it becomes necessary to select those which are most pertinent.

In the case of Fitzmaurice v. N. Y., N. H. & H. R. Co., 192 Mass. 159, 78 N. E. 418, 6 L. R. A. (N. S.) 1146, the facts were as follows: The plaintiff, while riding upon a train of the defendant, was injured by a collision, and no question was made that she would have been entitled to a verdict in her favor if she had been a passenger. She was a minor, and was riding upon a three-months season ticket which was good only for students under 18 years of age. She had obtained this ticket by presenting to the defendant's ticket agent a certificate, purporting to be signed by her father, that she was under 18 years of age and was a pupil in the Hollander Art School, Boston, and agreeing that she would not use the ticket otherwise than in going to and from school, and also presenting a certificate, purporting to be signed by "J. F. Miner, Principal, Hollander Art School, Boylston Street, Boston, Mass.," that she was a pupil in his school and as he fully believed intended to remain so for the next three months. She was at this time over 18 years of age, as she testified, lived in Marlboro, and was employed in Hollander's dry goods store in Boston. The regular price for a season ticket was $32. The reduced rate for students under 18 years of age, at which the plaintiff procured it, was $16. She had been riding upon this ticket nearly every day, except Sunday, for over a month, and the coupons had been received by the conductor. Upon the face of the ticket were the words: "Good only for a person under 18 years of age." The jury having found the amount of the plaintiff's damages, if she was entitled to recover, the judge ordered a verdict for the defendant. Upon this state of facts, the supreme court of Massachusetts held: "The defendant had the right to establish a reduced rate for students under a fixed age. * * * The plaintiff knew that she did not come within the class to which this offer of a reduced rate was made, and obtained her ticket by presenting certificates of facts

which she knew to be false. She thus obtained by false representations a ticket to which she knew that she was not entitled. Whatever rights she had to be regarded as a passenger on the defendant's train she had acquired solely by the fraud which she had practiced upon the defendant. She had no right to profit by her fraud. She had no right to rely upon the consent of the railway company to her entering its train as a passenger, when she had obtained that consent merely by gross misrepresentations. Accordingly she was not lawfully upon the defendant's train. She was in no better position than that of a mere trespasser. This principle has been affirmed in other jurisdictions. Thus it has been held that a person traveling over a railroad on a free pass or a mileage ticket which had been issued to another name and was not transferable was barred by his fraudulent conduct from recovering for a personal injury, unless it was due to negligence so gross as to show a willful injury. If the plaintiff had fraudulently evaded the payment of any fare, she certainly would not have become a passenger, and the defendant's utmost duty to her while she was upon its train would have been to abstain from doing her any willful or reckless injury. But such a case can not be distinguished in principle from the case at bar, in which the plaintiff obtained her ticket at a reduced price by successfully practicing a fraud. The only relation which existed between the plaintiff and defendant was induced by her fraud; and she can not be allowed to set up that relation against the defendant as a basis of recovery.

This case is annotated in 6 L. R. A. (N. S.) 1146, and a number of cases not cited in the opinion are mentioned in the note; and it seems to us to be not only good law, but good morals, as well. It so completely covers the case under consideration, and is so well supported by the reasoning of the court and the authorities cited, that we are content to rest upon it.

Defendant in error relies also upon the argument that there was no relation between the misrepresentation of Bondurant as to his age and the accident by which he was injured.

It is true that his being an infant in no way contributed to the accident. It is equally true that in Fitzmaurice v. Railroad, supra, the fact that plaintiff was over 18 years of age in no wise contributed to the accident. Doubtless the accident would have taken place, whether Bondurant had been upon the engine or not; but, if he had not been upon the engine, he would not have been injured by the collision. The controlling question in this case, however, is: In what relation did the intestate of the defendant in error stand to the railroad company at the time of the injury, and what duty did the railroad company owe to him? It is as true of him as it was of Miss Fitzmaurice that the only relation which existed between him and the railroad company was induced by fraud. But for his fraud and misrepresentation, he could never have been upon the engine. He was, therefore, a trespasser, or at most a bare licensee, to whom the railroad company stood in no contractual relation and owed no other duty than not to injure him recklessly, wantonly, or willfully.