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1919)

ARIZONA COPPER CO. v. HAMMER
(39 Sup.Ct.)

565

*Likewise, the Legislature enacted a Com-liability relieved of the fellow servant defense pulsory Compensation Law, approved June 8, and in which the defenses of contributory neg1912, applicable to work*men in the same ligence and assumption of risk are questions to occupations as those declared hazardous by be left to the jury. Const. §§ 4, 5, art. 18. (2) the Employers' Liability Law (Chapter 14, Employers' Liability Law, which applies to hazardous occupations where the injury or death Laws of Ariz. *Spec. Sess. 1912, p. 23). Ma- is not caused by his own negligence. Const. § terial portions of it are in the margin.2 7, art. 18. (3) The Compulsory Compensation Law, applicable to especially dangerous occupations, by which he may recover compensation without fault upon the part of the employer. Const. § 8, art. 18."

*In Consolidated Arizona S. Co. v. Ujack (1914) 15 Ariz. 382, 384, 139 Pac. 465, 466, the Supreme Court declared:

"Under the laws of Arizona, an employé who is injured in the course of his employment has open to him three avenues of redress, any one of which he may pursue according to the facts of his case. They are: (1) The common-law

"9. All work in the construction and repair of tunnels, sub-ways and viaducts.

"10. All work in mills, shops, works, yards, plants and factories where steam, electricity, or any other mechanical power is used to operate machinery and appliances in and about such premises.

"Sec. 5. Every employer, whether individual, firm, association, company or corporation, employing workmen in such occupation, of itself or through an agent, shall by rules, regulations, or instructions, inform all employés in such occupations as to the duties and restrictions of their employment, to the end of protecting the safety of employés in such employment.

"Sec. 6. When in the course of work in any of the employments or occupations enumerated in section 4 of this act, personal injury or death by any accident arising out of and in the course of such labor, service and employment, and due to a condition or conditions of such occupation or employment, is caused to or suffered by any workman engaged therein, in all cases in which such injury or death of such employé shall not have been caused by the negligence of the employé killed or injured, then the employer of such employé shall be liable in damages to employé injured, or, in case death ensues, to the personal representative of the deceased for the benefit of the surviving widow or husband and children of such employé; and, if none, then to such employé's parents; and, if none, then to the next of kin dependent upon such employé, and if none then to his personal representative, for the benefit of the estate of the deceased.

"Sec. 7. In all actions hereafter brought against any such employer under or by virtue of any of the provisions of this act to recover damages for personal injuries to any employé, or where such injuries have resulted in his death, the question whether the employé may have been guilty of contributory negligence, or has assumed the risk, shall be a question of fact and shall at all times be left to the jury, as provided in section 5 of article XVIII of the state Constitution.

"Sec. 8. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any employer to exempt himself or itself from any liability created by this act, shall to that extent be void: Provided, that in any action brought against any such employer under or by virtue of any of the provisions of this act, such employer may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity or that it may have paid to the injured employé or his personal representative on account of the injury or death for which said action was brought.

"Sec. 9. In all actions for damages brought under the provisions of this act, if the plaintiff be successful in obtaining judgment, and if the defendant appeals to a higher court, and if the plaintiff in the lower court be again successful, and the judgment of the lower court is sustained by the higher court or courts, then and in that

In Inspiration Consolidated Copper Co. v. Mendez (July 2, 1917) 19 Ariz. 151, 157, 166 Pac. 278, 279, 281, 283, the Supreme Court specifically held that the Employers' Liabili

event the plaintiff shall have added to the amount of such judgment by such higher court or courts, interest at the rate of 12 per cent. per annum on the amount of such judgment from the date of the filing of the suit in the first instance until the full amount of such judgment is paid.

"Sec. 10. No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.

"Sec. 11. All acts and parts of acts in conflict herewith are hereby repealed.

"Whereas, the state Constitution commands the enactment of an Employers' Liability law by the Legislature at its first session; and

"Whereas, this act being said Employers' Liability law is immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this act shall be in full force and effect from and after its passage and its approval by the Governor, and is hereby exempt from the operation of the referendum provision of the state Constitution."

'Employers' Liability Law.

Sec. 2. That compensation graduated according to average earnings and limited to $4,000 "shall be paid by his employer to any workman engaged in any employment declared and determined. to be especially dangerous, whether said employer be a person, firm, association, company, or corporation, if in the course of the employment of said employé personal injury thereto from any accident arising out of, and in the course of, such employment is caused in whole, or in part. or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employé or employés, to exercise due care, or to comply with any law affecting such employment." "Sec. 4. In case such employé or his personal representative shall refuse to settle for such compensation (as provided in section 8 of article XVIII of the state Constitution) and chooses to retain the right to sue said employer (as provided in any law provided for in section 7, article XVIII of the state Constitution) he may so refuse to settle and may retain said right."

"Sec. 6. The common-law doctrine of no liability without fault is hereby declared and determined to be abrogated in Arizona as far as it shall be sought to be applied to the accidents hereinbefore mentioned."

"Sec. 14. • • Provided, if, after the accident either the employer or the workman shall refuse to make or accept compensation under this act or to proceed under or rely upon the provisions hereof for relief, then the other may pursue his remedy or make his defense under other existing statutes, the state Constitution, or the common law, except as herein provided, as his rights may at the time exist. Any suit brought by the workman for a recovery shall be held as an election to pursue such remedy exclusively."

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ty Law does not conflict with the Fourteenth Amendment, and among other things said: "That the liability statute must be construed as one creating a liability for accidents resulting in injuries to the workmen engaged in hazardous occupations due to the risks and hazards inherent in such occupations, without regard to the negligence of the employer, as such negligence is understood in the common law of liability; in other words, such statute creates a liability for accident arising from the risks and hazards inherent in the occupation without re

gard to the negligence or fault of the employer.

* In other words, this statute creates a liability of the master to damages suffered from any accident befalling his servant while engaged in the performance of duties in dangerous occupations without requiring the negligence of the master to be shown as an element of the right to recover; and it likewise takes away from the master his common-law right of defense of assumption of ordinary risk by the servant, and leaves to the master the right to defend upon the grounds that the servant assumed the ordinary risks other than risks inherent in the occupation."

(This opinion was reaffirmed in Superior & Pittsburg Copper Co. v. Tomich [July 2, 1917] 19 Ariz. 182, 165 Pac. 1101, 1185.)

In Arizona Copper Co. v. Burciaga (1918) 177 Pac. 29, 31, 32, 33, the Supreme Court said:

"As clearly intimated by this court in Inspiration Consolidated Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac. 278, 1183, the Employers' Liability Law is designed to give a right of action to the employé injured by accident occur

ring from risks and hazards inherent in the

occupation and without regard to the negligence on the part of the employer. Such is the clear import of the said Employers' Liability Law.

"The liability incurred by the employer from a personal injury sustained by his employé from an accident arising out of and in the course of labor, service, and employment in hazardous occupations specified in the statute, and due to a condition or conditions of such occupation *or employment, if such shall not have been caused from the negligence of such employé, is such an amount as will compensate such employé for the injuries sustained by him directly attributable to such accident. * * * 'Liable in damages,' as used in paragraph 3158, c. 6, of title 14, Employers' Liability Law, Rev. Stat. of Ariz. 1913, has reference to and means that the employer becomes obligated to pay to the employé injured in an accident while engaged in an occupation declared hazardous, occurring without fault of the employer, all loss to the employé which is actually caused by the accident and the amount of which is susceptible of ascertainment. * Of course, mental and physical suffering experienced by the employé injured, proximately resulting from the accident, the reasonable value of working time lost by the employé, necessary expenditures for the treatment of injuries and compensation for the employe's diminished earning power directly resulting from the injury, and perhaps other results causing direct loss, are matters of actual less and as such recoverable."

From the foregoing it appears that we have for consideration a statute which undertakes, in the absence of fault, to impose upon all employers (individual and corporate) engaged in enterprises essential to the public welfare, not subject to prohibition by the state and often not attended by any extraordinary hazard, an unlimited liability to employés for damages resulting from accidental injuries-including physical and mental pain-which may be recovered by the injured party or his administrator for benefit of widow, children, parents, next of dependent kin or the estate. The individual who hires only one man and works by his side is put on the same footing as a corporation which employs thousands; no attention is given to probable ability to pay the award; length of service is unimportant-a minute seems enough; wages contracted for bear covered; and a single accident which he no necessary relationship to what may be rewas powerless to prevent or provide against may pauperize the employer. And by reason of existing constitutional and statutory provisions an injured workman may claim under this act or under the Compensation Law or according to the common law materially modified in his favor by exclusion of the fellow-servant rule and otherwise. On the other hand, while the employer is declared subject to new, uncertain and greatly enlarged liability, notwithstanding the utmost care, nothing has been granted him in return.

In such circumstances, would enforcement of the challenged statute deprive employers

of rights protected by the Fourteenth Amendment? Plainly, I think, nothing short of an affirmative answer is compatible with welldefined constitutional guaranties.

Of course, the Fourteenth Amendment was never intended to render immutable any particular rule of law, nor did it by fixation immortalize prevailing doctrines concerning legal rights and liabilities. Orderly and rational progress was not forestalled. Holden v. Hardy, 169 U. S. 366, 387, 18 Sup. Ct. 383, 42 L. Ed. 780. But it did strip the states of all power to deprive any person of life, liberty or property by arbitrary or oppressive action-such action is never due process of law.

In the last analysis it is for us to determine what is arbitrary or oppressive upon consideration of the natural and inherent principles of practical justice which lie at the base of our traditional jurisprudence and inspirit our Constitution. A legislative declaration of reasonableness is not conclusive; no more so is popular approval-otherwise constitutional inhibitions would be futile. And plainly, I think, the individual's fundamental rights are not proper subjects for experimentation; they ought not to be sacrificed to questionable theorization.

Until now I had supposed that a man's liberty and property-with their essential in

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(39 Sup.Ct.)

cidents were under the *protection of our Legislature has power to protect society charter and not subordinate to whims or ca- against the consequences of accidental injuprices or fanciful ideas of those who hap-ries, and therefore it may impose the loss pen for the day to constitute the legislative resulting therefrom upon those wholly withmajority. The contrary doctrine is revolu- out fault who have afforded others welcomed tionary and leads straight towards destruc- opportunities to earn an honest living under tion of our well-tried and successful system unobjectionable conditions. As a measure to of government. Perhaps another system may stifle enterprise, produce discontent, strife, be better-I do not happen to think so-but idleness, and pauperism, the outlook for the it is the duty of the courts to uphold the old enactment seems much too good. one unless and until superseded through orderly methods.

After great consideration in Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 761, and Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960, this court declared that the Fourteenth Amendment guarantees to both employer and employé the liberty of entering into contracts for service subject only to reasonable restrictions. "The principle is fundamental and vital."

In the first case an act of Congress prohibiting interstate carriers from requiring one seeking employment, as a condition of such employment, to enter into an agreement not to become or remain a member of a labor organization, was declared in conflict with the Fifth Amendment. In Coppage v. Kansas a state statute which declared it unlawful to require one to agree not to be a member of a labor association as a condition of securing employment was held invalid under the Fourteenth Amendment, and we said:

"An interference with this liberty so serious as that now under consideration, and so disturbing of equality of right, must be deemed to be arbitrary, unless it be supportable as a reasonable exercise of the police power of the state."

In Truax v. Raich, 239 U. S. 33, 41, 36 Sup. Ct. 7, 10 (60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283) an Arizona statute prohibiting employment of aliens except under certain conditions was struck down. We there said:

"It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure."

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In New York Central R. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, and Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642, as I had supposed for reasons definitely pointed out, we held the challenged statutes not in conflict with the Fourteenth Amendment although they imposed liability without fault and introduced a plan for compensating workmen, unknown to the common law. The elements of those statutes regarded as adequate to save their validity we specified; if such characteristics had not been found, the result, necessarily, would have been otherwise, unless we were merely indulging in harmful chatter.

Here, without fault, the statute in question imposes liability in some aspects more onerous than either the New York or Washington law prescribed; and the grounds upon which we sustained those statutes are wholly lacking. The employer is not exempted from any liability formerly imposed; he is given no quid pro quo for his new burdens; the common-law rules have been set aside without a reasonably just substitute; the employé is relieved from *consequences of ordinary risks of the occupation and these are imposed upon the employer without defined limit to possible recovery which may ultimately go to nondependents, distant relatives, or, by escheat, to the state; "the act bears no fair indication of a just settlement of a difficult problem affecting one of the most important of social relations"-on the contrary, it will probably intensify the difficulties.

The liability is not restricted to the pecuniary loss of a disabled employé or those entitled to look to him for support, but includes compensation for physical and mental pain and suffering; a recovery resulting in bankruptcy to an employer may benefit only a distant relative, financially independent; the prescribed responsibility is not "to contribute reasonable amounts according to a reasonable and definite scale by way of compensation for the loss of earning power arising from accidental injuries," but is unlimited, unavoidable by any care, incapable of fairly definite estimation in advance, and enforceable by litigation probably acrimonious, long drawn out, and expensive. While the statute is inattentive to the employé's fault, it permits recovery in excess of the employé's pecuniary misfortune, and provides for com

#453

pensation, not general, but sporadic, uncer- and oppressive upon both employer and em

tain, conjectural, delayed, indefinite as to amount, and not distributed over such long period as to afford actual protection against loss or lessened earning capacity with insurance to society against pauperism, etc.

I am unable to see any rational basis for saying that the act is a proper exercise of the state's police power. It is unreasonable

ployé; to permit its enforcement will impair fundamental rights solemnly guaranteed by our Constitution, and heretofore, as I think, respected and enforced.

The CHIEF JUSTICE and Mr. Justice MCKENNA and Mr. Justice VAN DEVANTER concur in this opinion.

END OF CASES IN VOL. 39

Page

Page

Aaron v. U. S., 204 Fed. 943, 945, 946, 123 C. C.
A. 265..
Abernethy v. Hutchinson, 3 L. J. (O. S.) Ch.
209

Acme Harvester Co. v. Beekman Lumber Co.,
222 U. S. 300, 311, 32 Sup. Ct. 96, 56 L. Ed. 208 264
Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 277, 52
L. Ed. 436, 13 Ann. Cas. 764.
Adams v. New York, 192 U. S. 585, 24 Sup. Ct.
372, 48 L. Ed. 575.

Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662,
21 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas.
1917D, 973...

Adams Exp. Co. v. Croninger, 226 U. S. 491,
509, 33 Sup. Ct. 148, 57 L. Ed. 314,
(N. S.) 257.

Adams Exp. Co. v. Ohio, 165 U. S.
Sup. Ct. 305, 41 L. Ed. 683; 166
Sup. Ct. 604, 41 L. Ed. 965.

Aerheart v. St. Louis, I, M. & S. R. Co., 99 Fed.
907, 910, 40 C. C. A. 171..

418

Andrews v. Virginia R. Co., 248 U. S. 272, 39
Sup. Ct. 101, 63 L. Ed. 236..

.214, 331

78

Anicker v. Gunsburg, 246 U. S. 110, 117, 38 Sup.
Ct. 228, 62 L. Ed. 603..

124

Anjer Head, The (D.C.) 46 Fed. 664..
Anonymous, Salk. 588..

453

242

567

Anvil Hydraulic Co. v. Code, 182 Fed. 205, 206,
105 C. C. A. 45...

312

248

Anvil Mining Co. v. Humble, 153 U. S. 540, 551,
552, 14 Sup. Ct. 876, 38 L. Ed. 814..
Arizona Copper Co. v. Burciaga (Ariz.) 177 Pac.
29. 31-33

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..62, 104 .556, 559, 560, 566 St. Louis South

Arkadelphia Milling Co. v.
western W. Co., 249 U. S. 134, 39 Sup. Ct. 237,
63 L. Ed. 517..

Arkansas v. Mississippi, 250 U. S. 39,
Ct. 422, 63 L. Ed.

Arkansas v. Tennessee, 246 U. S. 158, 171, 172.
38 Sup. Ct. 301, 304, 62 L. Ed. 638, L. R. A.
1918D, 258; 247 U. S. 461, 38 Sup. Ct. 557, 62
.422, 423, 424, 425
L. Ed. 1213..
44
Armour Packing Co. v. U. S., 209 U. S. 56, 28
Sup. Ct. 428, 52 L. Ed. 681..
Armour & Co. v. North Dakota, 240 U. S. 510,
514, 515, 517, 36 Sup. Ct. 440, 60 L. Ed. 771, Ann.
.125, 127, 274, 327, 358
Cas. 1916D, 548..
Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct. 184,
27 L. Ed. 920.

..314, 346 424 39 Sup.

465

297

Alaska Pac. Fisheries v. Alaska, 249 U. S. 53, 39
Sup. Ct. 208, 63 L. Ed. 474; 236 Fed. 52, 70, 149
O. C. A. 262, 280..

.208, 210

Alaska Pac. Fisheries v. U. S., 240 Fed. 274, 153 C. C. A. 200..

41

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Alaska Salmon Co. v. Territory of Alaska,
U. S. 648, 37 Sup. Ct. 242, 61 L. Ed. 544;
Fed. 62, 149 C. C. A. 272...

242

236

210

Albright v. Teas, 106 U. S. 613, 1 Sup. Ct.
27 L. Ed. 295.
Allen v. St. Louis, I. M. & S. Ry., 230 U. S.
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Allenwilde Transport Corporation v. Vacuum Oil
Co., 248 U. S. 377, 39 Sup. Ct. 147, 63 L.
Ed. 312

550,

517

239

150 Almy v. California, 24 How. 169, 16 L. Ed. 644.. 446 Alsop v. Riker, 155 U. S. 448, 15 Sup. Ct. 162, 39 L. Ed. 218..

478

American Banana Co. v. United Fruit Co., 213 U. S. 347, 357, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047..

Asbell v. State of Kansas, 209 U. S. 251, 28 Sup.
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Aspen Mining & Smelting Co. v. Billings, 150 U.
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Associated Press v. International News Service,
...70, 74
245 Fed. 244, 247, 157 C. C. A. 436.
Astor v. Wells, 4 Wheat. 466, 4 L. Ed. 616...... 207
446
Atchison, T. & S. F. R. Co. v. Harold, 241 U. S.
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Atchison, T. & S. F. R. Co. v. Matthews, 174 U.
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Atchison, T. & S. F. R. Co. v. O'Connor, 223 U.
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37

67

25

402

86

American Brewing Co., In re, 112 Fed. 752, 50
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264

319

American Const. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 379, 13 Sup. Ct. 758, 761, 37 L. Ed. 486..

378

American Dredging Co. v. U. S., 49 Ct. Cl. 350.. 347
American Exp. Co. v. Caldwell, 244 U. S. 617,
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American Exp. Co. v. Iowa, 196 U. S. 133, 143,
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American Exp. Co. v. Mullins, 212 U. S. 311, 29
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American Insulated Wire & Cable Co. v. Chi-
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416

380

523

439

American Mfg. Co. v.. St. Louis, 270 Mo. 40, 45,
192 S. W. 402; 198 S. W. 1183..
American Nat. Bank v. Miller, 229 U. S. 517,
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American Refrigerator Transit Co. v. Hall, 174
U. S. 70, 75, 76, 19 Sup. Ct. 599, 43 L. Ed.
..278, 280, 283
899
American Sugar Refining Co. v. New Orleans,
181 U. S. 277-281, 21 Sup. Ct. 646, 45 L. Ed.
.210, 384
859
American Tobacco Co. v. Wreckmeister, 207 U.
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Cas. 595...
Ann.
Amoskeag Sav. Bank v. Purdy, 231 U. S. 373,
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Andrews v. Swartz, 156 U. S. 272, 275, 15 Sup.
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Andrews v. U. S., 52 Ct. Cl. 373.

39 SUP.CT.

Atchison, T. & S. F. R. Co. v. Robinson, 233 U.
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Atchison, T. & S. F. R. Co. v. U. S., 225 U. S.
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.....159, 286, 325
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126
Atlantic Coast Line R. Co. v. Georgia, 234 U. S.
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Atlantic Coast Line R. Co. v. Goldsboro, 232 U.
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.119, 240, 276, 346, 451
721
Atlantic Coast Line R. Co. v. Interstate Com-
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Atlantic Coast Line R. Co. v. Mims, 242 U. S.
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Atlantic Coast Line R. Co. v. North Carolina
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Atlantic Coast Line R. Co. v. Riverside Mills,
219 U. S. 186, 206, 31 Sup. Ct. 164, 55 L. Ed.
167, 31 L. R. A. (N. S.) 7..
Atlantic Works v. Brady, 107 U. S. 192, 200, 2
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Atlantic & P. Tel. Co. v. Philadelphia, 190 U. S.
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Atocha, Ex parte, 17 Wall. 439, 21 L. Ed. 696... 465
Attorney General v. National Cash Register Co.,
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638
Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct.
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77

Auten v. United States Nat. Bank, 174 U. S. 125, 141, 19 Sup. Ct. 628, 43 L. Ed. 920.....

245

439

Babbitt v. Dutcher, 216 U. S. 102, 113, 30 Sup. Ct. 372, 54 L. Ed. 402, 17 Ann. Cas. 969. 315 Bacon v. Hooker, 177 Mass. 335, 337, 58 N. E. 464 1078, 83 Am. St. Rep. 279.

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