by the words "any car" contained in the second section of the act of 1893 95 requiring cars engaged in interstate commerce to be equipped with automatic couplers, it is further decided that although they were also required by the first section of the act to be equipped with power driving-wheel brakes, the rule that the expression of one thing excludes others does not apply, inasmuch as there was a special reason for that requirement and in addition the same necessity for automatic couplers existed as to them as in respect to other cars. A dining car regularly engaged in interstate traffic does not cease to be so when waiting for the train to make the next trip. The equipment of cars with automatic couplers which will not automatically couple with each other so as to render it unnecessary for men to go between the cars to couple and uncouple is not a compliance with the law.96 Under the laws of the State of Michigan the commissioner of railroads has power to compel a street railroad to install safety appliances in accordance with law, the cost to be shared between it and a steam railroad occupying the same street, notwithstanding that the steam road is the junior occupier of the street.97 And a statute does not unconstitutionally take private prop

The Safety Appliance Acts are, to rely thereon, the burden is upon according to the title, intended to it to bring itself within the terms of promote the safety of employees and the exception; those who set up travellers upon railroads by com- such an exception must establish it. pelling common carriers engaged in Schlemmer v. Buffalo, Rochester & interstate commerce to equip their Pittsburg Ry. Co., 205 U. S. 1, 57 cars with automatic couplers and L. ed. 681, 27 Sup. Ct. 407, rev'g continuous brakes and their locomo- 207 Pa. 198. tives with driving wheel brakes, and for other purposes: for this act, see Nelson's Interstate Commerce Commission, pp. 125 et seq.

Pleading and proof. In a suit based upon the Safety Appliance Act of March 2, 1893, as amended April 1, 1896, the plaintiff is not called upon to negative the proviso of § 6 of said act, either in his pleadings or proofs. Such proviso merely creates an exception, and if the defendant wishes

95 Act of Cong. March 2, 1893, 27 Stat. 531, c. 196.

32

90 Johnson v. Southern Pac. Co., 196 U. S. 1, 49 L. ed. 872, 25 Sup. Ct. 158. The act of March 2, 1903, Stat. 943, c. 976, was held to reiterate the view above expressed and to be declaratory thereof.

97 Detroit, Fort Wayne, Belle Isle Ry. v. Osborn, 189 U. S. 383, 47 L. ed. 860, 23 Sup. Ct. aff'g 127 Mich. 219, 86 N. W. 842.

erty for public use without compensation by requiring railroad companies to maintain such safety devices at crossings as shall be reasonably necessary for public protection.98 The statutes of New York regulating the heating of steam passenger cars, and directing guards and guard posts to be placed on railroad bridges and trestles and the approaches thereto " were passed in the exercise of powers resting in the State in the absence of action by Congress, and, when applied to interstate commerce, do not violate the Constitution of the United States.1

§ 386. Regulation of Railroads-General DecisionsExtra Trains for Connections-Removal of Tracks-Keeping Open Ticket Offices-Limitation of Liability—Adjusting Damage Claims Separate Cars.—It is within the power of a State Railroad Commission to compel a railroad company to make reasonable connections with other roads so as to promote the convenience of the travelling public, and an order requiring the running of an additional train for that purpose, if otherwise just and reasonable, is not inherently unjust and unreasonable because the running of such train will impose some pecuniary loss on the company. A city, having authority under its charter to change its streets by widening or straightening them, etc., and also being empowered to enact governmental regulations and ordinances under a general welfare clause, may, when the act is not unreasonable or arbitrary, compel a railroad company to remove its tracks to another street than the one on which they are laid. And the removal of a spur which has been constructed may be pre

98 State v. St. Paul, M. & M. Ry. Co. (Minn., 1906), 108 N. W. 261. "Laws N. Y. 1887, c. 616, Laws 1888, c. 189.

'New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. ed. 853.

2 Atlantic Coast Line Ry. Co. v. North Carolina Commission, 206 U.

S. 1, 51 L. ed. 933, 27 Sup. Ct. 585. See Jacobson v. Wisconsin, M. & P. R. Co., 71 Minn. 519, 40 L. R. A. 389, 74 N. W. 893, aff'd Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. ed. 194, 21 Sup. Ct. 115.

3 Atlantic & B. Ry. Co. v. City of Cordele, 125 Ga. 373, 54 S. E. 155.

vented by a Railroad Commission. The requirement that ticket offices shall be kept open for half an hour prior to the departure of each train should also be complied with. While Congress under its power may provide for contracts for interstate commerce permitting the carrier to limit its liability to a stipulated valuation, it does not appear that Congress has, up to the present time, sanctioned contracts of this nature; and, in the absence of Congressional legislation on the subject, a State may require common carriers, although in the execution of interstate business, to be liable for the whole loss resulting from their own negligence, a contract to the contrary notwithstanding. There is no difference in the application of a principle based on the manner in which a State requires a degree of care and responsibility, whether enacted into a statute or resulting from the rules of law enforced in its courts. The statute of South Carolina of 1903, imposing a penalty of fifty dollars on all common carriers for failure to adjust damage claims within forty days is not, as to interstate shipments, unconstitutional as violative of the Fourteenth Amendment, neither the classification, the amount of the penalty or the time of adjustment being beyond the power of the State to determine. And this applies in the matter of a small claim, as small shipments are the ones which especially need the protection of penal statutes of this nature." The statute of the State of Mississippi of 1888, requiring all railroads carrying passengers in that State (other than street railroads) to provide equal, but separate, accommodations for the white and colored races, having been construed by the Supreme Court of the State to apply solely to commerce within the State, does no violation to the commerce clause of the Constitution of the United States. And in another case

'Railroad Commission of La. v. Kansas City Southern Ry. Co., 111 La. 133, 35 So. 487.

Gulf, C. & S. F. Ry. Co. v. Dyer (Tex. Civ. App.), 95 S. W. 12. 'Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct.

132, 48 L. ed. 268, aff'g 202 Pa. 222, 51 Atl. 990. Decided in 1903.

7 Seaboard Airline Ry. v. Seegers, 207 U. S. 73, aff'g 73 S. C. 71.

8

Louisville, N. O. & T. R. Co. v. Mississippi, 133 U. S. 587, 33 L. ed. 730, 10 Sup. Ct. 365.

it is held that the provisions of the statute of Louisiana are not in conflict with either the Thirteenth or the Fourteenth Amendment of the Federal Constitution. Said enactment required railway companies carrying passengers in their coaches in that State, to provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations; and providing that no person shall be permitted to occupy seats in coaches other than the ones assigned to them, on account of the race they belong to; and requiring the officers of the passenger trains to assign each passenger to the coach or compartment assigned for the race to which he or she belongs; and imposing fines or imprisonment upon passengers insisting upon going into a coach or compartment other than the one set aside for the race to which he or she belongs; and conferring upon officers of the trains power to refuse to carry on the train passengers refusing to occupy the coach or compartment assigned to them, and exempting the railway company from liability for such refusal.9

§ 387. Regulation of Street Railroad Companies-Police Power.-A municipality under its right to make reasonable regulations concerning the use of its streets by a street railroad company 10 may limit the speed of its cars, 11 or the length

9

Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. ed. 256.

10 Baltimore v. Baltimore Trust & Guar. Co., 166 U. S. 673, 17 Sup. Ct. 696, 41 L. ed. 1160, 3 Va. Law Reg. 189; Joyce on Electric Law (2d ed.), § 147. See People v. Geneva, W. S. F. & C. L. Traction Co., 98 N. Y. Supp. 719, 112 App. Div. 581, aff'd 186 N. Y. 516, 78 N. E. 1109; City of New York v. Interurban Street Railway Co., 86 N. Y. Supp. 673, 43 Misc. 29; also § 63 (and note at p. 155), herein.

"State, Cape May, D. B. & S. P. R. Co. v. Cape May, 59 N. J. L. 393, 36 Atl. 679, 36 L. R. A. 656, 9 Am. & Eng. R. Cas. (N. S.) 507, 6 Am. Elec. Cas. 42; Choquette v. Southern Elec. R. Co. (Mo.), 53 S. W. 897; Joyce on Electric Law (2d ed.), §§ 463, 464.

Examine the following cases:

Alabama: Montgomery St. Ry. Co. v. Lewis (Ala., 1906), 41 So. 736.

Delaware: Licznerski v. Wilmington City Ry. Co. (Del. Super.), 62 Atl. 1057.

of time of service or of running cars on certain streets; 12 require the tracks to be watered so as to effectually lay the dust; 13 provide for the equipment of cars; 14 require the employment of a conductor as well as a motorman; 15 prohibit the use of salt on the tracks, except at certain places; 16 and make other lawful regulations in the exercise of the police power. The right of the legislature to require street railway companies in cities of a certain class to pave the part of the streets occupied by their tracks so as to conform with the improvements made in the remainder of the streets, or, in case they fail or neglect to perform such duty, to authorize the municipal authorities to make such improvements, and by the levy of a special assessment, charge the cost and expense thereof against such street railway company, which shall be a lien on its property, is a reasonable exercise of the reserve power vested in the legislature and in no wise violates or impairs the obligation of a contract with respect to the charter of such street railway company.17 But it is held that a city

Georgia: Hill v. Rome St. R. Co., 99 Ga. 103, 24 S. E. 866, 3 Am. Neg. Rep. 353.

Missouri: Campbell v. St. Louis & S. Ry. Co., 175 Mo. 161, 75 S. W. 86.

New Hampshire: Bly v. Nassau St. R. Co., 67 N. H. 474, 30 L. R. A. 303, 32 Atl. 764.

New York: Union Traction Co. v. City of Watervliet, 71 N. Y. Supp. 977, 35 Misc. 392.

Ohio: Lewis v. Cincinnati St. Ry. Co., 10 Ohio S. & C. P. Dec. 53.

12 People v. Detroit Citizens' Ry. Co., 116 Mich. 132, 74 N. W. 520, 4 Det. L. N. 1198, 16 Nat. Corp. Rep. 436, 11 Am. & Eng. R. Cas. (N. S.) 798.

97 N. W. 36; State of Minnesota v. Smith, 58 Minn. 35, 5 Am. Elec. Cas. 614, 59 N. W. 545. Examine State v. Whitaker, 160 Mo. 59, 60 S. W. 1068; Brooklyn v. Nassau Elec. R. Co., 56 N. Y. Supp. 609, 38 App. Div. 365; Yonkers, City of, v. Yonkers' R. Co., 64 N. Y. Supp. 955, 51 App. Div. 271; Henderson v. Durham Traction Co., 132 N. C. 779, 44 S. E. 598. Compare Buente v. Pittsburg, A. & M. Tract. Co., 2 Pa. Super. Ct. 185.

15 Danville St. Car Co. v. Wooding (Danville, Va., C. C.), 2 Va. L. Reg. 244.

16 State, Consol. Tract. Co., v. Elizabeth, 58 N. J. L. 619, 32 L. R. A. 170, 34 Atl. 146, 3 Am. & Eng. R.

State v. Canal & C. R. Co., 50 Cas. (N. S.) 614. La. Ann. 1189, 24 So. 265.

17 Lincoln St. Ry. Co. v. City of Lincoln, 61 Neb. 109, 110, 84 N. W. 808. See Amsterdam, City of, v.