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the speed of its train while approaching the crossing at which her husband was killed.

In case No. 141, the action was brought by Inez King by her next friend, Josephine King, in the same court, because of injuries received at the same time and place, and in alleged violation of the same statute. Both cases were removed to the United States Circuit Court for the Eastern Division of the Northern District of Georgia. Upon trial verdicts and judgments were rendered against the railroad company. These judgments were affirmed in the Circuit Court of Appeals for the Fifth Circuit. 160 Fed. Rep. 332; 87 C. C. A. 284. The cases were then brought here by writs of certiorari.

The Federal question presented concerns the validity of the statute of the State of Georgia for violation of which a recovery was had, it being the contention of the petitioner that the statute is in violation of the interstate commerce clause of the Federal Constitution, in that it is an illegal burden upon and a regulation of interstate commerce. This statute is found in 8 2222 of the Civil Code of Georgia, and reads as follows:

“There must be fixed on the line of said road, and at the distance of 400 yards from the center of each of such road crossings, and on each side thereof, a post, and the engineer shall be required, whenever he shall arrive at either of said posts, to blow the whistle of the locomotive until it arrives at the public road, and to simultaneously check and keep checking the speed thereof so as to stop in time should any person or thing be crossing said track on said road."

It has been frequently decided in this court that the right to regulate interstate commerce is, by virtue of the Federal Constitution, exclusively vested in the Congress of the United States. The States cannot pass any law directly regulating such commerce. Attempts to do so have been declared unconstitutional in many instances,

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and the exclusive power in Congress to regulate such commerce uniformly maintained. While this is true, the rights of the States to pass laws not having the effect to regulate or directly interfere with the operations of interstate commerce, passed in the exercise of the police power of the State in the interest of the public health and safety, have been maintained by the decisions of this court. We may instance some of the cases of this nature in which statutes have been held not to be a regulation of interstate commerce, although they may affect the transaction of such commerce among the States. In Smith y. Alabama, 124 U. S. 465, it was held to be within the police power of the State to require locomotive engineers to be examined and licensed. In N. Y., N. H. & H. Railroad Co. v. New York, 165 U. S. 628, a law regulating the heating of passenger cars and requiring guard posts on bridges was sustained. In Lake Shore R. R. Co. v. Ohio, 173 U. S. 286, it was held to be a valid enactment to require railway companies operating within the State of Ohio to cause three of its regular passenger trains to stop each way daily at every village containing over three thousand inhabitants. In Erb v. Morasch, 177 U. S. 584, it was held that a municipal ordinance of Kansas City, Kansas, although applicable to interstate trains, which restricted the speed of all trains within the city limits to six miles an hour, was a valid exertion of the police power of the State. In the case of Crutcher v. Kentucky, 141 U. S. 47, this court said:

“It is also within the undoubted province of the State legislature to make regulations with regard to the speed of railroad trains in the neighborhood of cities and towns; with regard to the precautions to be taken in the approach of such trains to bridges, tunnels, deep cuts and sharp curves; and, generally, with regard to all operations in which the lives and health of people may be endangered, even though such regulations affect to some extent the

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operations of interstate commerce. Such regulations are eminently local in their character, and, in the absence of Congressional regulations over the same subject, are free from all constitutional objections, and unquestionably valid.”

On the other hand, it has been held to be an illegal attempt to regulate interstate commerce to require interstate passenger trains to stop at county seats when adequate train service had already been provided for local traffic. C. C. C. & St. L. R. R. Co. v. Illinois, 177 U. S. 514. In Mississippi Railroad Commission v. Illinois Central Railroad Company, 203 U. S. 335, it was held that orders of a state railroad commission which directed the stopping of interstate trains at certain local stations, where adequate transportation facilities had already been provided, was an unlawful attempt to regulate interstate commerce and repugnant to the Federal Constitution.

Applying the general rule to be deduced from these cases to such regulations as are under consideration here, it is evident that the constitutionality of such statutes will depend upon their effect upon interstate commerce. It is consistent with the former decisions of this court and with a proper interpretation of constitutional rights, at least in the absence of Congressional action upon the same subject-matter, for the State to regulate, the manner in which interstate trains shall approach dangerous crossings, the signals which shall be given, and the control of the train which shall be required under such circumstances. Crossings may be so situated in reference to cuts or curves as to render them highly dangerous to those using the public highways. They may be in or near towns or cities, so that to approach them at a high rate of speed would be attended with great danger to life or limb. On the other hand, highway crossings may be so numerous and so near together that to require interstate trains to slacken speed indiscriminately at all such

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crossings would be practically destructive of the successful operation of such passenger trains. Statutes which require the speed of such trains to be checked at all crossings so situated might not only be a regulation, but also a direct burden upon interstate commerce, and there

, fore beyond the power of the State to enact.

It is the settled law of this court that one who would strike down a state statute as violative of the Federal Constitution must bring himself by proper averments and showing within the class as to whom the act thus attacked' is . unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates as to deprive him of rights protected by the Federal Constitution. Tyler v. The Judges, 179 U. S. 405; Turpin v. Lemon, 187 U. S. 51, 60; Hooker v. Burr, 194 U. S. 415; Hatch v. Reardon, 204 U, S. 152, 160.

In the case at bar the Federal question was sought to be raised by an amendment to the answer. The answer originally filed was general in its nature, and did not set up the defense of violation of the Federal Constitution. The amendment filed set up that the railroad company was engaged in interstate commerce, and at the time of the injury complained of was operating an interstate train, and, after setting up the statute of the State of Georgia for a violation of which the company was sued, averred that it was inoperative as to the defendant's train, because in violation of $ 8, Article I, of the Federal Constitution, giving Congress the power to regulate commerce, and further stated:

Your defendant further shows that the statute of Georgia is not a reasonable regulation under the police power of the State to secure the safety of passengers, but that the statute is a direct burden on and impedes the interstate traffic being done by this defendant, and impairs the usefulness of its facilities for such traffic.

“Defendant further shows that it is impossible to ob

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serve said statute and carry the mails as defendant is required to carry them under the contract it has with the Government; and it is likewise impossible to do an interstate business, and at the same time comply with the terms of said statute.

“Wherefore it says that said statute is inoperative as to it, and it should not be required to comply with the same on its interstate line of railroad.

“All which it stands ready to verify, and prays that it be hence discharged with its reasonable cost."

On oral demurrer to this amendment to the answer the same was held insufficient and it was dismissed. Petitioner's counsel further sought to raise the Federal question by an offer of proof at the triel by an engineer of the company, as follows:

“I expect to prove that between the South Carolina line and Atlanta there are practically one hundred road crossings, or between eighty-five and one hundred public road crossings; that the distance is one hundred and one miles; that the crossings in some localities are very close together, and within a few hundred yards of each other, and at others farther apart, but on the average making a crossing to the mile almost. We expect to show further, that to observe the statute and check and keep checking so as to have a train under control, and to stop should any person or thing be on the crossing, would consume from five to ten minutes for each crossing, dependent, of course, upon the weight and length of the train and the grade; but it would make an average of seven or eight minutes. We wish to show that this train was made

up and known as No. 39, the vestibule train which runs from the city of Washington, through the States of Virginia, North Carolina, South Carolina and Georgia; that it was carrying passengers from one State to another, also carrying an express car with freight on it, from one State to another. We wish and expect to show that obedience

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