Knickerbocker Ice Co. v. Stewart ( 1920 )

Mr. Justice Holmes,

dissenting.

In Southern Pacific Co. v. Jensen, 244 U. S. 205, the question was whether there was anything in the Constitution or laws of the United States to prevent a State from imposing upon an employer a limited but absolute liability for the death of an employee upon a gang-plank between a vessel and a -wharf, which the Staté unquestionably could have imposed had the death occurred on the wharf. A majority of the Court held the State’s attempt invalid, and thereupon, by an Act of October.6, 1917, c. 97, 40 Stat. 395, Congress tried to meet the effect of the decision by amending § 24, cl. 3, and § 256, cl. 3, of the Judicial Code; Act of March 3, 1911, c. 231, 36 Stat. 1087. Those sections in similar terms declared the jurisdiction of the District Court and the exclusive jurisdiction of the Courts of the United States, “of all civil causes of admiralty and maritime jurisdiction,, saving to suitors-in all cases the right of a common-law remedy where the common law is competent to give it.” The amendment added, “and to claimants the rights and remedies -under the workmen’s compensation law of any State.” I thought that claimants had those rights before. I think that they do now both for the old reasons and for new ones.

I do not suppose that anyone would say that the words, “The judicial power shall extend ... to all cases of admiralty and maritime jurisdiction,” Const. Art. Ill, § 3, by implication enacted a whole code for master and servant at sea, that could be modified only by a constitutional amendment. But somehow or other the ordinary common-law rules of liability as between master and servant have come to be applied to a considerable extent in the admiralty. If my explanation, that the source is the common law of the several States, is not accepted, I can only say, I do not know how, unless by the fiat of the judges. But surely the power that imposed the liability can change it, and I suppose that Congress can do as much as the judges who introduced the rules. For we know that they were introduced and cannot have been elicited by logic alone from the mediaeval sea laws.

But if Congress can legislate it has done so. It has adopted statutes that were in force when the Act of October 6, 1917, was passed, and to that extent has acted as definitely as if it had repeated the words used by the several States — a not unfamiliar form of law. Gibbons v. Ogden, 9 Wheat. 1, 207; Hobart v. Drogan, 10 Pet. 108, 119; Cooley v. Board of Wardens, 12 How. 299, 317, 318; Interstate Consolidated Street Ry. Co. v. Massachusetts, 207 U. S. 79, 84, 85; Franklin v. United States, 216 U. S. 559; Louisville & Nashville R. R. Co. v. Western Union Telegraph Co., 237 U. S. 300, 303, An act of Congress, we always say, will be construed so as to sustain it, if possible, and therefore if it were necessary, the words “rights and remedies under the workmen’s compensation law of any State” should be taken to refer solely to laws existing at the time, as it certainly does at least include them. See United States v. Paul, 6 Pet. 141. Taking the act as so limited it is to be read as if it set out at length certain rules for New York, certain others more or less different -for California, and so on. So construed the single, objection that I have heard to the law is that it makes different rules for different places, and I see nothing in the Constitution to prevent that. The only matters with regard to which uniformity is provided for in the instrument so far as I now remember, are duties, imposts and excises, naturalization and bankruptcy, in Article I, § 8. As to the purpose of the clause concerning the judicial power in these cases nothing is said in the instrument itself. To read into it a requirement of uniformity more mechanical than is educed from the express requirement of equality in the Fourteenth Amendment seems to me extravagant. Indeed it is contrary to the construction of the Constitution in the very clause of the Judiciary Act that is before us. The saving of a common-law remedy adopted the common law of the several States within their several jurisdictions, and, I may add by way of anticipation, included at least some subsequent statutory changes. Steamboat Co. v. Chase, 16 Wall. 522, 530-534. Knapp, Stout & Co. Company v. McCaffrey, 177 U. S. 638, 645, 646. Rounds v. Cloverport Foundry & Machine Co., 237 U. S. 303, 307. I cannot doubt that in matters with which Congress is empowered to deal it may make different arrangements for widely different localities with perhaps widely different needs. See United States v. Press Publishing Co., 219 U. S. 1, 9.

I thought that Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, went pretty far in justifying the adoption of state legislation in advance, as I cannot for a moment believe that apart from the Eighteenth Amendment special constitutional principles exist against strong drink. The fathers of the Constitution so far as I know approved it. But I can see no constitutional objection to such an adoption in this case if the act of Congress be given that effect. I assume that Congress could not delegate to state legislatures the simple power to decide what the law of the United States should be in that district. But when institutions are established for ends within the power of the States and not for any purpose of affecting the law of the United States, I take it to be an admitted power of Congress to provide that the law of the United States shall conform as nearly as may be to what for the time being exists. A familiar example is the law directing the common-law practice, &c., in the District Courts to “conform, as near as may be, to the practice,” &c;, “existing at the time” in the State Courts. Rev. Stats., § 914. This was held by the unanimous Court to be binding in Amy v. Watertown, No. 1, 130 U. S. 301. See Gibbons v. Ogden, 9 Wheat. 1, 207, 208; Cooley v. Board, of Wardens, 12 How. 299, 317, 318. I have mentioned the scope given to the saving of a common-law remedy and 'have referred to cases on the statutes adopting state pilotage laws. Other instances are to be found in the acts of Congress, but these are enough. I think that the same principle applies here. It should be observed that the objection now dealt with is the only one peculiar to the adoption of local law in advance. That of want of uniformity applies equally to the adoption of the láws in force in 1917. Furthermore we are not called on .Dow to consider the collateral effects of the act. The only .question before us is whether the words in tbie Constitution, “The judicial power shall extend to . . . all cases of admiralty and maritime jurisdiction” prohibit Congress from passing a law in the form of the New York Workmen’s Compensation Act — if not in its present form,, at least in the form in which it stood on October 6, 1917. I am of opinion that the New York law at the time of the. trial should be applied and that the judgment should be affirmed.

Mr. Justice Pitney, Mr. Justice Bbandeis and Mr. Justice Claeke concur in this opinion.