arises under an act of Congress, the other objections are of a kind as to which we often have intimated our strong leaning toward following the local courts, and therefore will not be discussed at length. Fox v. Haarstick, 156 U. S. 674, 679. Treat v. Grand Canyon Ry. Co., 222 U. S. 448, 453. In the first place it is said that the statute was not approved by the Governor and does not appear to have reached him more than three days before the adjournment of the Legislature so as to have become a law by Rev. Stat., § 1842. Also it is said that the bill was not signed by the President of the Council or the Speaker of the House of Representatives, as required by the respective rules of those bodies. But the act appears in the official copy of the laws of 1909, it passed the two houses in fact, and in ample time to be submitted to the Governor. The Governor returned the bill to the Council with the statement that he had allowed it to become a law by limitation. We agree with the court below that the Governor's message is as good evidence as a note of the date on the bill that the bill had been received long enough before the return to make his statement correct. Gardner v. Collector, 6 Wall. 499, 508, 509. The journals of the two houses showed the passage of the bill and we certainly should not reverse the local decision that the evidence, if necessary, was admissible and sufficient in aid of the act.

The next objection is to the form of the petition by which the proceedings for the change were begun. The statute provides that the Board of County Commissioners shall order a vote whenever citizens of a county equal in number to at least one-half of the legal votes cast at the last preceding general election in the county shall present a petition asking for the removal of the county seat to some other designated place. The petition asked the Board "to call an election and submit to a vote

the proposition to remove the county seat of said Lincoln County to Carrizozo," etc. It is said that this did not ask

for the removal, and if read with extreme technicality it did not, in so many words. But the petition very well might be held to imply that the proposition to remove emanated from those who signed, the only persons from whom it could emanate under the law that the petitioners had in mind.

Again it is said that the ballot was in an unintelligible and misleading form. The Board following the statute, Compiled Laws, 1897, § 631, ordered that "the tickets voted shall contain 'For County Seat' with the name of the place for which the voter desires to cast his ballot, either written or printed thereon." If the court was of opinion that the voters would understand that those in favor of Carrizozo would write that word on the ticket and those opposed to a change would write Lincoln, we could not say that they overrated the intelligence of their fellow citizens. There was no evidence that the voters were deceived. But it is enough that the statute was followed. There is no ground on which the law could be declared void.

It is objected that there was no registration of voters, as required in general terms by § 1709 of the Compiled Laws. But that section required the County Commissioners to appoint a Board of Registration sixty days before any election, and as the statute concerning the change of county seats in case of a special election required it to be called 'at any time within two months of the date of presenting said petition,' it naturally was held that the case was taken out of § 1709 by the latter act.

It is objected that various allegations of the bill were admitted because not denied. If any such matter is open the allegations not denied were mainly if not wholly erroneous conclusions of law from the facts proved at the trial. Equitable Life Assurance Society v. Brown, 213 U. S. 25, 43. But it is not open. The argument seems to us to need no further or more elaborate reply.

Decree affirmed.
Judgment affirmed.

227 U.S.

Syllabus.

MICHIGAN CENTRAL RAILROAD COMPANY v.

VREELAND.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

No. 242. Argued December 4, 1912. Decided January 20, 1913. If the constitutional questions on which the writ of error was based were not foreclosed when the writ was sued out, this court retains jurisdiction to consider other assignments of error even if the constitutional questions have meanwhile been decided in other cases adversely to plaintiff in error.

The Employers' Liability Act of 1908 will not receive such a narrow interpretation as to defeat all liability because the injured employé survived the injury for a brief period.

Congress has always had power under the commerce clause of the Constitution to regulate the liability of interstate carriers to their employés for injuries; but until it did act, the subject was within the police power of the States. Since the passage of the Employers' Liability Act of 1908, that act is paramount and exclusive and so remains unless and until Congress shall again remit the subject to the States. Reid v. Colorado, 187 U. S. 137.

A Federal statute upon a subject exclusively under Federal control must be construed by itself and cannot be pieced out by state legislation. If a liability does not exist under the Employers' Liability Act of 1908, it does not exist by virtue of any state legislation on the same subject.

At common law the right of action for an injury to the person is extinguished by the death of the party injured whether death be instantaneous or not. As the Employers' Liability Act of 1908 did not provide for any such survival the right was extinguished by death. At common law loss and damage may accrue and a right of action accrue to persons dependent upon one wrongfully injured; but this cause of action, except for loss of services prior to death, abates at the death. The evident purpose, however, of Congress, in enacting the Employers' Liability Act of 1908 was to save a right of action to certain relatives dependent upon the employé wrongfully injured for the loss and financial damage resulting from his death, and there is no express or implied limitation of the liability to cases in which death was instantaneous.

This liability is for pecuniary damage only, and the statute should be construed in this respect as Lord Campbell's Act has been construed,

227 U.S.

Argument for Plaintiff in Error.

not as granting a continuance of the right the injured employé had, but as granting a new and independent cause of action. The pecuniary loss recoverable under the Employers' Liability Act of 1908 by one dependent upon the employé wrongfully killed must be a loss which can be measured by some standard, and does not include an inestimable loss such as that of society and companionship of the deceased or of care and advice in case of a husband for his wife. There is no hard and fast rule by which pecuniary damages may be measured in all cases.

A minor child sustains a loss from the death of a parent of a different kind from that of wife or husband from the death of the spouse; while the former is capable of definite valuation the latter is not. In this case the judgment under the Employers' Liability Act of 1908, of damages for death of a husband who survived the injury for a brief period, is reversed, because, although the wife was entitled to maintain the action notwithstanding the death was not instantaneous, the damages were not properly estimated as the court charged the jury that they could consider the relation of husband and wife and the care and advice of the former to the latter.

THE facts are stated in the opin›n.

Mr. Emery D. Potter, with whom Mr. Frank E. Robson, Mr. Henry Russel and Mr. Charles P. Carroll were on the brief, for plaintiff in error:

The decision in Mondou v. Railroad Company, 223 U. S. 1, did not deprive this court of its jurisdiction to pass upon other material and substantial questions raised on this record, its jurisdiction having once rightfully vested.

For construction of the act of April 22, 1908, 35 Stat. 65; and the act of April 5, 1910, 36 Stat. 291, see Adams v. Nor. Pac. R. R., 116 Fed. Rep. 324; Alder v. Fleming, 159 Fed. Rep. 593; American R. R. Co. v. Birch, 224 U. S. 547; City v. Marfield, 63 Kansas, 794; Dolson v. L. S. & M. S. Ry., 128 Michigan, 444; Ely v. Detroit United Ry. Co., 162 Michigan, 287; Holton v. Dailey, 106 Illinois, 131; Jones v. McMillan, 129 Michigan, 86; Kellow v. Central Iowa Ry. Co., 68 Iowa, 470; Mulcahey v. Washburn Car Co., 145 Massachusetts, 281; Nor. Pac. R. R. v. Adams, 192 U. S. 440, 450; Nourse v. Packard, 138 Massachusetts,

227 U. S.

Argument for Defendant in Error.

307; Oliver v. Street Ry. Co., 134 Michigan, 367; Railway Co. v. Clark, 152 U. S. 230; Railway Co. v. Dawson, 68 Arkansas, 1; Railway Co. v. Dixon, 179 U. S. 131; Roundtree v. Adams Exp. Co., 165 Fed. Rep. 156; Sawyer v. Perry, 88 Maine, 42; State v. Grand Trunk R. R. Co., 61 Maine, 144; Storrie v. Grand Trunk Elevator Co., 134 Michigan, 297; Sweetland v. R. R. Co., 117 Michigan, 329; West v. Detroit United Ry. Co., 159 Michigan, 269; see also Michigan Survival Act, p. 16 and Michigan Death Act, p. 17.

There was error in the charge of the court to the jury as to the measure of damages. Davis v. Guarnieri, 45 Oh. St. 471; Gas Co. v. Rogers, 135 S. W. Rep. 904; Holton v. Dailey, 106 Illinois, 132; May v. R. R. Co., 62 N. J. L. 63; McHugh v. Schlosser, 159 Pa. St. 480; Nelson v. R. R., 140 Michigan, 582; Railroad Co. v. Bentz, 108 Tennessee, 670; Railroad Co. v. Johnson, 78 Texas, 536; Railroad Co. v. Walker, 125 S. W. Rep. 99; Railroad Co. v. Wilson, 48 Fed. Rep. 57; Railway Co. v. Altemeier, 60 Oh. St. 10; Railway Co. v. Austin, 68 Illinois, 126; Railway Co. v. Golway, 6 App. D. C. 144; Railway Co. v. Townsend, 69 Arkansas, 380; Steel v. Kurtz, 28 Oh. St. 191; Sternfelds v. Railway Co., 73 N. Y. App. Div. 494; Swift & Co. v. Johnson, 138 Fed. Rep. 867; Walker v. R. R. Co., 111 Michigan, 518; Webster's Int. Dict. 1895, see "care," "advice."

Mr. John B. Daish, with whom Mr. Joseph D. Sullivan was on the brief, for defendant in error.

The constitutional questions were abandoned by the defendant below at the trial of the case, have since been abandoned in its brief on the motion to dismiss or affirm, and pending hearing of the case have been decided adversely to the contentions of the railroad company.

Assuming that all the questions raised by the assignments of error are properly before and can be considered by this court, they will be found upon examination to be without merit.