cited the following cases which had been heard before the California Commission:

JURISDICTION DENIED.

A brakeman running on a division wholly within the State was stabbed and thrown from a freight train, the employer being without fault. We held that we were without jurisdiction when it was proven that the train contained cars loaded with interstate freight.

A switchman was injured without fault on the part of the company, while coupling the air hose on a train carrying interstate freight. Ten minutes before he might have been coupling air hose on a train carrying no interstate freight, in which event he would have been entitled to compensation. As it chanced he was entitled to nothing at all.

A laborer injured while loading timber in a railroad yard at Fresno, the timber to be used in repairing stockyards at another station, such stockyard being used both for handling interstate and intrastate animals, but chiefly the latter.

A car repairer had eye injured while driving out knuckle bolt of flat car used in general commerce, but mainly intrastate.

Laborer injured while building a temporary track to a pile driver to be used in building a bridge on a main line.

A railroad policeman injured while chasing tramps off an interstate passenger train at Colton, Cal. Held by the commission that it was without jurisdiction, which decision was affirmed as sound by the district court of appeals, although had the accident happened while chasing tramps off a local train a contrary decision would have been reached.

All the foregoing cases, and many more, were dismissed, after rehearing by the commission, for want of jurisdiction, but if compensation without regard to negligence is justifiable on any grounds it should have been awarded in each of the foregoing instances.

JURISDICTION ASSUMED.

The Industrial Accident Commission of California held hearings and awarded compensation in the cases following, among others, notwithstanding the fact that the defendant railroad companies had pleaded want of jurisdiction:

A pantry woman in a railroad restaurant at the depot in Los Angeles.

A machinist's helper, injured while grinding a rod with an emery wheel, it not being shown what use was to be made of the rod. In this case the jurisdictional issue was not pleaded by defendant, but in another similar case, where it developed in the testimony that a bolt being threaded at the time of injury was for use on a dining car employed in interstate and intrastate commerce, the proceeding was dismissed for want of jurisdiction.

A freight handler was injured while loading an asphalt cooker into a car at Sacramento to be shipped to an intrastate point, the car so loaded finally containing four pieces of freight coming from without the State, but destined to intrastate points, the same not having been loaded into the car at time of injury.

A baggageman at Orange, near Los Angeles, injured while closing door to baggage room, having just gone to the room to see if there was a consignment of fresh vegetables to be shipped to the Los Angeles market. Held compensable, but if he had just gone to the baggage room to see if there was a crate of vegetables to be shipped to a point outside the State the proceeding would have

Charles B. Ruth was killed by accident at Roseville, near Sacramento, while repairing a switch engine, such engine having been out of commission several Y days and not being returned to service for three days after the accident. While in use 70 per cent of the freight it handled was interstate and only 30 per cent intrastate, and neither the engine nor the injured mechanic ever went outside the State in the course of employment. Held compensable by the commission, but on appeal to the Supreme Court of the State the decision of the commission was reversed and the award annulled on the ground that the decedent was at the time of the accident employed in interstate commerce and the industrial accident commission was without jurisdiction.

CASES GOING UP ON APPEAL.

A flagman at a crossing of a principal thoroughfare by an interurban line running from the Southern Pacific mole, opposite San Francisco, to the city of Berkeley, was struck by such a train and so injured that he died. Doubtless 99 per cent of all the traffic over this line is interurban and intrastate, perhaps as much as 99.9 per cent. Want of jurisdiction was pleaded as a defense, but compensation was awarded on the ground that at the time of the accident, if the injured workman was employed in commerce at all, it was intrastate, but that in fact he was not so employed, and although paid by the railroad company for his services his function was not to guard commerce, but, in obedience to an ordinance of the city of Berkeley, such watchmen are required to be maintained at certain crossings for the protection of citizens using the street.

A flagman at San Mateo was injured while striving to head off an approaching team about to run under the gate which he was lowering, subsequently dying of his injuries. His employment was also by the Southern Pacific Co., but in obedience to an ordinance of the city of San Mateo in order that citizens might not be injured by passing trains while crossing the line of the railroad, and not chiefly, if at all, for the protection of commerce either interstate or intrastate.

These two cases will be appealed to the Supreme Court of the State, and the decision of that court will be awaited by the industrial accident commission with patience as well as interest.

Numerous cases before the State and Federal courts have developed the great difficulty in administering the Federal liability law in correlation with State legislation. The question constantly recurs as to what is interstate commerce, since on this turns the right of the injured person to sue under the Federal statute, or to take action under the laws of the State. The decisions of the State courts are numerous and impossible of reconciliation. A considerable number of opinions on this point have been delivered by the Supreme Court of the United States, but even in undertaking to apply these as precedents, State courts do not attain uniformity. Something of the difficulty under which they labor will appear from a brief account of illustrative cases decided by the Supreme Court. Thus a trackman repairing a bridge used in both interstate and intrastate commerce was run down by an intrastate train, and the Supreme Court ruled that he was injured while engaged in interstate commerce, reversing

the United States Circuit Court of Appeals on this point. (Pedersen v. Delaware, L. & W. R. Co. (1913), 33 Sup. Ct., 648.)

A workman getting empty cars off a private track so as to run in from the company's yards to the private track coal cars brought from without the State was held to be within the act (Pennsylvania R. Co. v. Donat (1915), 36 Sup. Ct., 4); but a fireman on a switch engine handling sometimes interstate and sometimes intrastate traffic, and sometimes both, was injured at a moment when only intrastate traffic was being moved, and was held not to be within the act. (Illinois Central R. Co. v. Behrens (1914), 34 Sup. Ct., 646.) So a workman moving cars of coal to the chutes for the company's locomotives which were used indiscriminately in interstate and intrastate commerce was excluded. (Harrington v. Chicago, B. & Q. R. Co. (1916), 36 Sup. Ct., 517.) However, a brakeman uncoupling cars on a "pick-up" freight train running locally, but handling in part interstate freight, was held to come under the Federal act. (New York Central & H. R. R. Co. v. Carr (1915), 35 Sup. Ct., 780.) A fireman who had prepared his engine for an interstate run, and was crossing the tracks on his way to his boarding house on a personal errand and was killed, was held to be under the Federal and not the State law (North Carolina R. Co. v. Zachary (1914), 34 Sup. Ct., 305); and a yard clerk taking numbers of cars on an interstate train was likewise within the act, even though the yard was a terminal and all cars might have reached their ultimate destination. (St. Louis, S. F. & T. R. Co. v. Seale (1913), 33 Sup. Ct., 651.)

A car repairer replacing a drawbar in a car in use in interstate commerce is within the act (Walsh v. N. Y., N. H. & H. R. R. Co. (1912), 32 Sup. Ct., 169); but the work of a mechanic shifting a countershaft in a repair shop is too remote to be included (Shanks v. Delaware, L. & W. R. Co. (1916), 36 Sup. Ct., 188).

As already indicated, many refinements have been made by the State courts, and no fixed rule is available, each case being necessarily determined on the facts involved. In the case last cited Mr. Justice Van Devanter says:

Having in mind the nature and usual course of business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion, and that the true test of employment in such commerce in the sense intended is, Was the employee, at the time of the injury, engaged in interstate transportation or in work so related to it as to be practically a part of it?

Again he asks, "Was Shanks at the time of the injury employed in interstate commerce within the meaning of the employers' lia

terial, for, as before indicated, the act refers to the service being rendered when injury was suffered." On this principle if an injury is incurred at one moment of time it comes under one law, while a few moments later, with exactly the same appliances, over identical tracks, with the same associates, a workman may be under another law involving entirely different procedure and amounts of recovery. Indeed, it may almost be said that in many instances the case must be tried before one may be sure under what law recovery should be sought.

The steps that should be taken to remedy the conditions of confusion and conflict are not agreed upon, but so far as admiralty is concerned, if the Supreme Court decision stands, only Congress can legislate as to injuries on the high seas and navigable waters of the country. The fact that Congress can legislate on the subject of railway employment only where interstate commerce is involved, while the States can legislate only as regards intrastate commerce, together with the fact that the boundary line between these two lines of employment is exceedingly difficult of determination, renders the problem of railroad traffic much more complex. Whether by constitutional amendment the Congress should secure control of all commerce by railroad, both interstate and intrastate; or whether Congress should repeal its liability law and relegate the entire care of injuries to employees to the States; or, again, whether it should enact for interstate employees a compensation law more exactly comparable with the existing compensation laws of the 37 States now having them; or, lastly, whether it should enact such a law to be effective only in States not having compensation legislation of a standard type, are matters that are under discussion among those who are not satisfied with the existing complicated and perplexing situation. The fact remains that not all parties in interest are agreed that so radical a change as any of those proposed above is necessary, some groups desiring to retain the liability provisions so that damage suits may be available where negligence appears, the employees' organizations taking care of other cases of injury.

The improbability of Congress withdrawing from a field of legislation in which it has taken action and the great diversity of legal enactment and construction in the different States militate against the probability and to some extent against the desirability of relegating the matter entirely to the States. Constitutional amendments are difficult to procure, but an adequate compensation law covering interstate commerce only can be enacted at any time, and this would at least equalize the situation as between interstate and intrastate employees and make less vital the distinction between the two classes of remedies to be sought in case of injury to an employee.

COURT DECISIONS ON THE WORKMEN'S COMPENSATION LAW of NEW YORK.

The bureau of statistics and information of the New York Department of Labor has issued a special bulletin with the above title, presenting partly by summarization and partly by reproduction of the opinions, a complete account of the judicial construction of the workmen's compensation law of the State. The volume contains 406 pages, with a list of cases, subject index, and an analysis of the principal subject matter. The material is topically arranged, following in part the sections of the law, and in part an analytical distribution of its subject matter.

Questions of constitutionality are first discussed, the date of the publication of the bulletin making it feasible to include only a oneline footnote referring to the decision of the Supreme Court of the United States declaring the law constitutional. The principal discussion of the act is included under the term “coverage,” some 230 pages being devoted to this subject. The term is given a rather broad meaning in this compilation, necessitating a variety of divisions and subdivisions, the final result being a presentation of the principles developed by the courts on the various points in such a manner as to make the work a textbook on the compensation law of the State.

The opinions of the court of appeals, the highest court of the State, are given in full, as are also those of the appellate division of the supreme court. Opinions of the trial term of the supreme court and rulings of the State industrial commission are presented for the most part in a summary form; rulings of the attorney general of the State are also presented, some of them in full. No summary of these rulings and opinions is attempted here, as the more important of them have for the most part received notice in the bulletin of the bureau which is devoted to the subject of workmen's compensation (Bul. No. 203), and many of them more at length in the annual bulletins on decisions of courts on subjects relating to labor.

Inasmuch as the law of New York is of compulsory application to occupations classed as hazardous, including the principal industrial operations of a great industrial State, the volume is of interest outside the State, chiefly where laws of similar form are in force. There is, however, a large body of material of general application, since many phrases, as "arising out of and in course of employment," are common; while the discussions of horseplay, willful negligence, the effect of the workman's intoxication, disability due to disease, and other points, are of general interest.