company. The court, through Mr. Justice Pitney, said:

"It is true that the Puritan case arose before the passage of the Hepburn Act of 1906, (meaning the Carmack Amendment), but there is nothing in the Amendments introduced by that act to affect the jurisdiction of the state court in an action such as the present.'

"

So, it must be perfectly clear to all, possessing reasonable power to discriminate in legal matters, that the Carmack Amendment did not destroy or in any way affect any common law remedy theretofore existing unless such remedy was diametrically opposed to the purposes of the federal act, or in direct conflict with some of its provisions. Like the repeal of statutes, the jurisdiction of courts is not defeated by implication, except in cases where the inference is irresistible. This was made clear by Mr. Justice Lamar in the case of Galveston H. & S. A. R. Co. v. Wallace, 225 U. S. 481, wherein it was stated:

"But jurisdiction is not defeated by implication. And, considering the relation between the federal and state government, there is no presumption that congress intended to prevent state courts from exercising the general jurisdiction already possessed by them, and under which they had the power to hear and determine causes of action created by federal statute. Robb v. Connolly, 111 U. S. 542, supra.

"On the contrary, the absence of such provision would be construed as recognizing that where the cause of action was not penal, but civil and transitory, it was to be subject to the principles governing that class of cases and might be asserted in a state court as well as in those of the United States. presumption would be strengthened as to a statute like this, passed not only for the purpose of giving a right, but of affording a con. venient remedy."

This

This case also involved the consideration of provisions 8 and 9 of this law and was for a failure of the interstate carrier to deliver certain goods which had been committed to its care for transportation.

It results from the foregoing, that in all causes of action prior to the Hepburn law and the Carmack Amendment, wherein the state courts had jurisdiction, and the plaintiff had the right to sue in such state, charging the defendant with its common law liability, such right was left unaffected. In all claims for damages arising under the Hepburn law and the amendments thereto, out of matters relating to the fixing and promulgating of discriminatory rules or in cases where the rule itself is attacked as being unfair or discriminatory, (such questions calling for the exercise of judgment and discretion of the administrative power), are for the Commission in the first instance to say whether or not such rules are fair, or unjust discrimination has been made in favor of one class of shippers against another; and in such cases, no court, state or federal, has jurisdiction. After

the Commission has pronounced a rule to be just, redress may then be sought either before the Commission for recovery of damage, or in the federal courts of competent jurisdic tion, and a party must elect whether he will proceed before the Commission or before the court. If, however, the carrier's rule as filed with the Interstate Commerce Commission is fair and reasonable, but has been unequally and unfairly applied, and a party sustains damage on account of the violation or the discriminatory enforcement of such rule, there is no administrative question involved, and the state courts have jurisdiction concurrent with the federal court, in such cases in which the federal court has jurisdiction. a cause of action arising on account of delay of, or damage to, or loss of an interstate shipment, is not provided for and does not arise under the interstate commerce law; and the federal courts, in my judgment, would have no jurisdiction, unless there were other conditions present, bringing the case within the jurisdiction of such courts. This contention may well be demonstrated by an excerpt from the case of Atlantic C. L. Ry. Co. v. Riverside Mills, in 219 U. S. 185. Mr. Justice Lurton wrote the opinion in this case, and it was there said:

But

"The cause of action in the present case is not for damages resulting from any violation of the provisions of this act, *** * But the cause of action was the loss of the plaintiff's property which had been intrusted to it as a common carrier and that loss is in no way traceable to the violation of any provis ion of the act to regulate commerce. Having sustained no damage which was a consequence of the violation of the act, the section has no application to this case.

And again in the case of Galveston H. & S. A. Ry. Co. v. Wallace, supra, the same justice, speaking for the court, said:

"The jurisdiction of the state court was attacked, first on the ground that section 9 of the original act of 1887 provided that persons damaged by a violation of the statute might make complaint before the Commission or in any district or circuit court of the United States. It was contended

*

* * *

that Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, ruled that this jurisdiction was exclusive, and from that, it was argued that no suit could be maintained in a state court on any cause of action created either by the original act of 1887 or by the Amendment of 1906; but damage caused by failure to deliver goods is in no way traceable to a violation of the statute and is not therefore, within the provisions of sections 8 and 9 of the act regulating commerce.''

This holding of the court also strengthens the view next presented, that the right of a shipper to waive the special contract and charge the interstate carrier with its common law liability, was not abrogated.

Coming to the third division of the subject, the question is: If a party who makes an interstate shipment of property under a

through bill of lading, in pursuance to section 20 of the Carmack Amendment, and the shipment is damaged through negligence of the carrier, may he waive such written contract and charge the interstate common carrier in a suit in a state court upon its common law liability? Or, in other words, does this law deprive the state courts in those states theretofore recognizing the common law procedure, of jurisdiction to entertain causes of action arising on account of the negligence of an interstate carrier, and from applying the common law procedure? As above stated, while able lawyers have held to the view that state courts have been deprived of all common law jurisdiction in such matters by the Carmack Amendment, and which they claim was the holding of the court, in effect, in the case of Clegg v. St. Louis & S. F. Ry. Co., also in the Croninger case, notwithstanding such views, I am nevertheless persuaded that this question must be answered in the affirmative. Even if the language of Mr. Justice Lurton in the Croninger case, supra, where he said:

"To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing federal law at the time of his action, gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws."'

Even if this language, I say expresses the view of the court on the point involved, and even if this language were intended to limit the scope of the Hepburn law and the Amendment, I insist that this would not be sufficient to deprive the state courts from following the common law procedure in the enforcement of rights under the federal act. And I hold to this view for the reason that at the time of the passage of the original Interstate Commerce Act in 1887, likewise on the date of the Carmack Amendment in 1906, the common law procedure, when not in direct conflict with the federal statute, was recognized by the federal courts' and adopted as part of its system of procedure. Thus, if all rights and remedies under existing federal law, were by this proviso of the act preserved, then if an interstate shipper had the right in the Federal court to waive the shipping contract and declare upon the carrier's common law liability, necessarily, such rights were preserved, even under the language of the Supreme Court in the Croninger case, and necessarily in those states where the state courts adopt, recognize and follow the common law procedure, such a right in a shipper in the state courts was likewise preserved, under the express proviso

of this act.

This construction would in no wise be inconsistent with the purposes of the federal law or in conflict with any of its provisions.

There can be no question but that the proviso in section 22 of the original act in express terms preserved in the shipper all common law rights and remedies, which were not in direct conflict with any of the provis

ions thereof or wholly at variance with its purposes. All common law rights and remedies, (which were held by the court to be in addition and cumulative to the remedies and rights conferred by the act), together with all rights and remedies contained therein, were, by the proviso in section 20 of the Amendment, preserved and continued in force.

That the Federal Court recognized such common law rights and remedies, is evidenced by the holding in the case of Southern Pacific Ry. Co. v. Arnett, et al, 50 C. C. A. 17, which decision was subsequent to the original Interstate Common Law of 1887, but prior to the Carmack Amendment. The right of a shipper to waive a special contract of interstate shipment and declare upon the carrier's common law liability, was expressly recognized. the still later case of Southern Ry. Co. v. Mulberry Cotton Mills, 109 C. C. A. 390, subsequent to the Carmack Amendment, such rights were again expressly recognized in the shipper, the court saying:

In

As still stronger evidence that the state courts were not deprived of their common law jurisdiction or from following the common law procedure, and that an interstate shipper could waive any special contract of shipment, as provided for by section 20 of the Carmack Amendment, our own Supreme Court in the case of Frisco Ry. Co. v. Ladd, 33 Okla., and in Frisco Ry. Co. v. Peery, 40 Okla., 432, and in Frisco Ry. Co. v. Cox, Peery and Murray, 40 Okla., 258, and in other cases has specifically recognized such rights and reme dies. And, as proof indisputable that this court committed no error in so holding, such rights in the state courts have, within the last year, been expressly upheld by the highest court in the world--The Supreme Court of the United States. As was said by that court in the case of Galveston H. & S. A. R. Co. v. Wallace, supra, jurisdiction is not defeated by implication, and that the absence of express language withdrawing from state courts jurisdiction to enforce Federal rights in causes of action, civil and transitory, would be construed as recognizing such jurisdiction in such courts; especially if, as in the interstate commerce act, it is clear that the purpose was to give new rights, as well as afford a convenient remedy. And, as said by Mr. Justice White in the case of Texas Pac. Ry. Co. v. Abilene Cotton Oil Co., supra:

"The manifest purpose of the provision in question (the proviso to section 22), was to make plain the intention that any specific remedy given by the act should be regarded as cumulative when other appropriate common law or statutory remedies existed for the

redress of the particular grievance or wrong dealt with in the act."

This language was quoted with approval by the court through Mr. Justice Lurton in the Croninger case, supra. And, in the late case of Pa. Ry. Co. v. Puritan Coal Mining Co., supra, the language seems too clear and pointed to admit of the shadow of a doubt. After quoting the proviso in section 22, it was said:

"That proviso was added at the end of the statute, not to nullify other parts of the act, or to defeat rights or remedies given by preceding sections, but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended

to preserve existing remedies, such as those by which a shipper could in the state court recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by a failure to comply with its common law duties, and the like."

And on the same date, in the case of Eastern Ry. Co. of New Mexico v. Littlefield, et al, supra, the same doctrine was adopted in a case against the interstate carrier for failure to furnish cars as agreed; and at the same term, but subsequently, the same right was recognized in an opinion by Mr. Justice Pitney, in the case of Illinois Central Ry. Co. v. Mulberry Hill Coal Co., supra So, it seems that, beyond all peradventure, the common law jurisdiction and the common law procedure in state courts in the enforcement of all causes of action under the interstate commerce law, (except such as may arise out of questions herein referred to, demanding the exercise of the administrative power of the Commission), were not affected by this national legislation. To say that the state courts have concurrent jurisdiction with the Federal Court in the enforcement of rights created by, or growing out of Federal legislation, and at the same time assert that such courts cannot follow the procedure provided by the government of their creation, would be tantamount to saying that jurisdiction and authority did not in fact exist. Congress has no power to directly vest any portion of the judicial power of the federal judiciary in state courts, or to provide the procedure governing such courts. To admit that such power exists would be in effect admitting that the states have no independent police power. It cannot be doubted that Congress, recognizing the rule of comity, may, and often does, as a matter of convenience, use certain state officials, with their consent, including the judiciary, to carry out certain governmental functions and policies, some of which are limited to matters non-judicial in their nature; as, for instance, in the disposition of public lands, naturalization of aliens, the arrest and committal for trial of parties charged with violating the laws of the United States, and the performance of such other duties as may be regarded as incidental to, rather than a part of, the judicial power itself. In all

such matters their acts are more in the nature of acts of special agents rather than the exercise of judicial power.

In enforcing rights created by and growing out of Federal legislation, the authority of state courts emanates from the sovereignty of their creation, and not from the Federal Government. It cannot be denied that in the enforcement of the substantive law creating the right, in all matters wherein the Federal Government has exclusive jurisdiction, the state courts are called upon to pronounce the law applicable to the case in judgment. They are not to decide merely according to the laws and the Constitution of the state, but according to the constitution, laws, and treaties of the United States,-the Supreme law of the land. But as to the machinery whereby effect to be given to these rights, the procedure provided by their own government must prevail. If this were not true, we would have the anomaly of courts vested with judicial power to adjudicate rights, yet with no fixed rules of procedure provided whereby to execute such power, for, certainly to concede that the Federal Government may legis late for the state courts in this respect, would be to concede it in every other instance. On the other hand, if a portion of the procedure provided by the state for its own courts can be disregarded as inapplicable, then no part of such procedure may be followed, and public mischief of enormous magnitude would inevitably ensue.

WAR BOY BABIES

From January to March for every thousand babies born in thirty-six large towns of England and Wales, there were thirty-two more boys than girls, during the next two months there were forty-three more boys and during the next two months the excess of boys was fifty-five. These figures run counter to the view that it is unscientific to suppose that more boys than girls are born in war times.

As a matter of fact, it is entirely scientific to believe, even without the figures here given, that the birth of male babies is more than that of female during war times. The underlying principle of equalization that directs these matters takes account of hard conditions of life, so that more boys are born than girls under any conditions of hardship or environments of physical ordeal. This has been shown by the preponderance of boys in the birth rate of homesteaders in primitive conditions of living and among persons who go from settled communities to the rough wilderness of the mountains. Conditions that call for vigor and hardiness are productive of a preponderance of boy birth. The same bio-psychologic conditions operate for the production of more boys than girls under conditions that call for an excess of the strenuous sex. The principles of this law will remain undiscoverable.-Baltimore American.

On September 22, 1915, Harry E. Smith of El Reno, filed his claim for compensation before the Industrial Commission, against the El Reno Gas and Electric Company, with the Fidelity and Casualty Company of New York, as insurance carrier. The plaintiff claimed that he had been injured while in the employ of the Gas and Electric Company, in that he had been ruptured, and that he was disabled for life.

The industrial commission investigated the case, took testimony from the plaintiff, and two physicians and two associates of Smith, who had worked with him. According to the decision of the commission, it was not established that Smith's injury was occasioned by anything he did while in the employ of the company, or anything for which the company could be held responsible.

Four points the Commission required absolute proof of:

1. An injured workman is entitled to compensation for disability caused by a hernia, where it appears that the hernia was caused by accidental injury arising out of and in the course of employment.

2. Claimant must prove that the hernia appeared suddenly and was accompanied by pain immediately following the accident, and that the hernia did not exist prior to the accident.

3. Claimant will be held to a reasonably strict compliance with the terms of the Workmen's Compensation Act regarding prompt notice of the time and place of the accident and the nature of the injury.

4. Claimant has failed to establish the fact that the hernia is a result of an accidental injury arising out of, and in the course of, employment. Compensation denied.

The opinion, written by W. C. Jackson, member of the Commission, is the first on the subject, and will be of interest. It follows:

Article 1, Section 3 of the Workmen's Compensation Act reads as follows:

Injury or personal injury' means only accidental injuries arising out of and in the course of employment, and such disease or infection as may naturally and unavoidably result therefrom."

The Supreme Judicial Court of Appeals of Massachusetts, in construing this section of the Workmen's Compensation Act, uses the following language:

"The first question is whether the deceased received an 'injury arising out of and in the course of employment' within the meaning of those words in Part 11, section 1 of the act. In order that there may be recovery, the injury must both arise out of and also be received in the course of employment. Neither alone is enough.

"It is not easy nor necessary to give determination of the case at bar to give a comprehensive definition of these words which will

accurately include all cases embraced within the act, and with precision exclude those outside its terms. It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It arises out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot be fairly traced to the employment as a contributing, proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not to have had its origin in the risk connected with the employment, and to have flowed from that source as a rational consequence."

Bradbury's Workmen's Compensation, Volume 1, page 366, reads as follows:

"An internal injury, caused to a person in a normal state of health, by a fortuitous and unforeseen event, in the usual course of his business, is an accident."

The Supreme Court of West Virginia, in the case of Poccardi v. Public Service Commission, 84 S. E. 242, says:

"Under the Workmen's Compensation Act, an internal injury resulting from a strain while at work, is an accident within the meaning of the act, arising out of and in the course of employment, and for which compensation is properly allowed.

"Proof of apparent, previous good health, a heavy and unusual lift in the course of employment, and discovery on the second day thereafter of rupture, death from surgical operation for relief thereof, and opinion by the operating surgeon that the rupture was caused by lifting, was sufficient to establish accidental injury in course of employment, within the meaning of the act."

The English courts have laid down the doctrine:

"That if a man is lifting a weight or trying to move anything not usually moved, should strain a muscle, rick his back or rupture himself, the mishap in ordinary parlance should be described as an accident. Anybody would say that the man had met with an ac

cident in moving a heavy weight, or trying to move something too heavy for him.

"Rupture caused by over-exertion in the course of a man's work is an accident within the meaning of the Compensation Act."

The same general rule is laid down in Bradbury's Workmen's Compensation in the case of Boardman v. Scott & Whitworth (3 W. C. C. 33, 85 L. T. 502), page 366, also in Boyd's Workmen's Compensation on page 1043.

In Zappala v. Industrial Insurance Commission, 144 Pac. (Wash.) 54, the Supreme Court of Washington hold:

"Where a workman suffered a hernia while attempting to remove a heavily loaded truck, such an injury was a 'fortuitous event' within the meaning of the workmen's compensation act of Washington (Laws 1911, p. 349), providing that the word 'injury' or injured, used in the act, referred only to an injury resulting from 'some fortuitous event, as distinguished from the contraction of disease.

Where the Industrial Commission adopted rules governing hernia cases, i. e. '(1) There must be an accident resulting in hernia; (2) the hernia must have appeared just following the accident; (3) there must have been present pain at the time; (4) the applicant must show that he did not have hernia before the accident; (5) hernia coming on while a man is following his usual work is not an accident,' and an attempt to remove a heavily loaded truck resulted in a hernia there may be a recovery under the workmen's compensation act (Laws 1911, p. 345), notwithstanding the last rule mentioned herein."

The following rulings have been made by the Industrial Commission of the States of Illinois and Wisconsin, respectively:

"On February 23rd, 1914, employee sustained a rupture in his left side. His work required him to push iron patterns weighing 1,000 pounds each from under the hopper on which he was working over to the chapel setters. On the day of the injury the rupture pained him and began to swell. He did not report for work the next day and the pain became so bad that he was obliged to consult a physician. He obtained a truss and was thereafter able to do light work. The board sustains the employee's claim with regard to the injury due to the hernia; but it terminates the period of disability when the truss was applied since he was thereafter able to do practically all forms of work except heavy lifting. The award covers the cost of the preliminary treatment and the truss, also for the amount necessary for an operation to effect a permanent cure. (Industrial Board, Illinois. Wilmont Streigel, employed; American Radiator Co., employer. May 6, 1915).

The Commission says: 'This is another case where a man who suddenly discovers that he has a hernia, concludes that it must have resulted from some fall or strain, and immediately recalls to his mind some recent incident which not only seems to him to constitute a sufficient cause, but which he hon

estly brings himself to believe did cause it, At best, such an incident constitutes nothing more than a mere possible cause. Except such incident was particularly violent or was followed immediately by severe pain, it cannot with any degree of certainty be said to be a probable cause. In this case, a hernia on each side, an insignificant accident or strain given as the cause does not argue much. It seem's clear to the commission that they are the result of predisposition and made their appearance without any accident or

over

strain.' Application for compensation dismissed." (Industrial Commission, Wisconsin. Andrew Kozlowski, employee; Illinois Steel Company, employer. March 29, 1915.)

In United States Mutual Accident & Insurance Association v. Berry, 131 U. S. 100, the Supreme Court of the United States said:

"The term 'accident' is here used in its original and popular sense, and in that sense means happening by chance, unexpectedly taking place, not according with the usual course of things, or not expected."

In the case note to Andreini v. Cudahy Packing Co., 6 N. E. C. A. 397, it is said:

"In Wilson v. Allis-Chalmers Co., Wis. Workm. Comp. Rep. (1914), p. 70, applicant claimed that while in the employ of respondent he accidentally received a strain by reason of being obliged to sustain a heavy weight, which resulted in a left inguinal rupture. At the time, he made no complaint nor claim of injury, and testified he felt no pain then, but an inconvenient sensation around the abdomen and in the back. He had a hernia on the right side which had existed since he was three years old. The walls of the abdomen were weak and flabby, and his condition was such as to make him susceptible to hernia. He continued working for the employer for about ten days, when he quit, for the reason, as he claimed at the hearing, that he was unable to continue his work. The day after quitting he reported to one of the company doctors for treatment, and it was found that he had a complete inguinal hernia on the left side, the intestine having descended into the scrotum. In the opinion denying his application, it was said: 'It is impossible to determine from the evidence in this case when the hernia developed, or whether it developed as the result of a strain. The California commission, in passing upon a question of this kind, says: 'The consensus of medical and surgical opinion runs to the effect that hernia is very rarely, in any proper sense, the result of an accidental injury; that the accident is at best no more than the occasion rather than the cause of the malady.' This, with some modification, coincides with the experience of this commission. We are of the opinion that a hernia, which results from strain and not from congenital weakness, is accompanied by pain immediately following the accident. It is true that hernia may appear after the slightest exertion-often a cough will cause the intestines to protrude if they have reached the stage in their descent