The trial court overruled the contentions of defendant, and rendered a judgment against it for the entire amount claimed. This was affirmed by the supreme court of the state (131 Ark. 306. 199 S. W. 90), and the case is brought here upon the contention that the taxing provision of the franchise ordinance, as construed and applied, has the effect of depriving the defendant of rights secured to it by the Constitution and laws of the United States.

above-mentioned ordinance, averring that, panies maintaining poles and wires in it was duly accepted by the company, the city were required to pay the tax and was a contract between the parties, only upon poles maintained upon the and alleging that, pursuant to it, the de- streets. and not upon those maintained fendant had erected and maintained on railroad rights of way. General orin the [97] city 205 poles upon which dinances of the city were introduced in there were due the license taxes or fees evidence, one of them antedating the at 50 cents per pole for four and a half franchise ordinance, and providing as years, amounting to $461.25. The com- follows: "Each telegraph, telephone, pany by its answer admitted the passage electric light or power company shall and acceptance of the ordinance, but de- pay annually a sum equal to 50 cents for nied that it was a contract; alleged that each pole used by them whether such the provision as to license fees did not poles are leased, rented, or owned by include the poles placed upon the right them." of way of the railway company, especially not those that were without the limits of the city at the time of the acceptance of the ordinance; that 50 cents per pole per year was unreasonable and excessive, and sought to be imposed not for inspection and regulation of the poles, but for revenue purposes only; that said license fee or tax deprived defendant of its property without due process of law, and denied to it the equal protection of the laws, in violation of the 14th Amendment; that defendant had accepted the restrictions and obligations of the Act of Congress approved July 24, 1866 (chap. 230, 14 Stat. at L. 221, Rev. Stat. §§ 5263 et seq., Comp. Stat. 1916, § 10,072, 9 Fed. Stat. Anno. 2d ed. p. 505); that its poles and wires were in use for the transmission of messages for the United States and the various departments of the government; and further, that defendant was engaged principally in the transmission of telegraphic messages between points in Arkansas and points in other states and in foreign countries, and that the imposition of a fee or tax upon its poles was a burden upon and illegal interference with interstate and foreign commerce and the regulatory power of Congress over the same.

We are unable to see ground for dismissal of the writ of error, and will pass at once to the merits.

Notwithstanding that some of the provisions of the ordinance are contractual in form, and by its own terms it was to take effect only after written acceptance by the company, and such acceptance was in fact formally given, the supreme court of the state, as we read its opinion, dealt with the pole fees not as an agreed compensation for the franchise, but as a license tax. Consequently we will-indeed must, for present purposes -so regard it.

Plaintiff in error contends that the court erred in construing the ordinance as imposing the tax with respect to the poles standing upon the railroad right of way, and especially as to the 35 poles At the trial the company offered to which, at the time of acceptance of the pay the license tax upon the 66 poles ordinance, were without the limits of the that were placed upon the city streets, city. [99] But as no question is raised but disputed liability for those placed here under the contract clause of the upon the railroad right of way. It Constitution, we are not at liberty to reproved acceptance of the Act of Con- vise the decision of the state court upon gress of 1866, showed that the corpo- the question of construction, and can rate limits had been extended after ac- only determine whether, as construed ceptance of the ordinance in such man- and applied, the ordinance deprives ner as to include 35 additional poles plaintiff in error of rights secured by along the right of way, showed that the other provisions of the Constitution and line on the right of way ran through a laws of the United States. thinly populated part of the city as compared with the [98] streets covered by the franchise, being crossed, however, by two important streets and by two turnpikes that lead into the city, and offered to prove that two other telegraph com

That a reasonable tax upon the maintenance of poles and wires erected and maintained by a telegraph company within the limits of a city, pursuant to authority granted by its ordinances, is not an unwarranted burden upon inter

state or foreign commerce, or upon the functions of the company as an agency of the government, and does not infringe rights conferred by the Act of Congress, is so thoroughly settled by previous decisions of this court that no further discussion is called for. St. Louis v. Western U. Teleg. Co. 148 U. S. 92, 100, 37 L. ed. 380, 383, 13 Sup. Ct. Rep. 485; Western U. Teleg. Co. v. New Hope, 187 U. S. 419, 425, 47 L. ed. 240, 243, 23 Sup. Ct. Rep. 204; Atlantic & P. Teleg. Co. v. Philadelphia, 190 U. S. 160, 164, 47 L. ed. 995, 1000, 23 Sup. Ct. Rep. 817; Western U. Teleg. Co. v. Richmond, 224 U. S. 160, 56 L. ed. 710, 32 Sup. Ct. Rep. 449; Postal Teleg. Cable Co. v. Richmond, 249 U. S. 252, ante, 590, 39 Sup. Ct. Rep. 265.

rights of way went no further than to show that the general ordinance had not been enforced against them in the same manner that it was proposed to enforce the franchise ordinance against plaintiff in error. There was no offer to show an arbitrary and intentionally unfair discrimination in the administration of the ordinance, as in Yick Wo v. Hopkins, 118 U. S. 356, 374, 30 L. ed. 220, 227, 6 Sup. Ct. Rep. 1064. Peradventure the present action was a test case to determine whether the license fees were applicable to poles standing elsewhere than on the streets, with the intent, in case of an affirmative answer, to enforce the general ordinance against the other companies in the same sense. Nor was there any offer to show that the circumstances of the several companies and their telegraph lines were so much alike as to render any discrimination in the application of the pole tax equivalent to a deof nial of the equal protection of the laws. None of the contentions of plaintiff in error being well founded, the judgment is affirmed.

These cases establish that a city (supposing, of course, it acts under the authority of the state) may impose such taxes not merely with respect to the special and exclusive occupancy streets and other public places by poles and other equipment, but by way of compensation for the special cost of supervising and regulating the poles, wires, and other fixtures, and of issuing the necessary permits. Hence, in the present case, we cannot hold that the fact that a tax is imposed upon the poles that stand upon the railway right of way, as well as on those that stand upon the streets, is sufficient to condemn the ordinance, especially in view of the finding of the supreme court of Arkansas that the telegraph line as laid along the right of way crosses a street car line and several turnpikes coming into the city, and that it is necessary there shall be local [100] governmental supervision of the lines crossing these highways for the protection of travelers upon them.

There is no support in the record for the contention that a tax of 50 cents per pole per year is unreasonable in amount, even though it be made to apply to poles standing on private property or upon a railroad right of way as well as to poles erected in the streets.

Nor is there ground for holding that plaintiff in error is subjected to unreasonable discrimination, in contravention of the equal protection clause of the 14th Amendment. The case shows that its franchise ordinance imposes the same and no greater tax than that which is applied by a general ordinance to other companies maintaining poles in the city. The offer of testimony to prove that the two other companies were not in fact required to pay the tax upon so many of their poles as stood upon railroad

[101] PHILADELPHIA, BALTIMORE, & WASHINGTON RAILROAD COMPANY, Petitioner,

V.

ALFRED H. SMITH.

(See S. C. Reporter's ed. 101-104.) Master and servant employers' liability when servant is engaged in interstate commerce.

A person employed by a railway company to care for and keep clean a soand to cook for himself and a gang of called "camp car," to attend to the beds, railway bridge carpenters quartered in such car and engaged in the repair of railway bridges and abutments in use as instrumentalities of interstate commerce, was, at the time of receiving injuries in a collision between an engine and the camp car, then on a sidetrack, employed in interstate commerce within the meaning of the chap. 149), as amended by the Act of April Act of April 22, 1908 (35 Stat. at L. 65,

Note. On the constitutionality, application, and effect of the Federal Employers' Liability Act-see notes to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 38; and Seaboard Air Line R. Co. v. Horton, L.R.A.1915C, 47.

On track repairing and work in connection therewith as furthering interstate commerce within the Employers' Liability Act-see note to Alexander v. Great Northern R. Co. L.R.A.1918E, 859.

5, 1910 (36 Stat. at L. 291, chap. 143, was cooking dinner at the time of the Comp. Stat. 1916, § 8662), where he was accident, were engaged in interstate then inside the car, engaged in cooking a meal for the bridge carpenters and himself.

Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 57 L. ed. 1125, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779; Lombardo v. Boston & M. R. Co. 223 Fed. 427; Hardwick Decided May 19, v. Wabash R. Co. 181 Mo. App. 156, 168 S. W. 328; San Pedro, L. A. & S. L. R. Co. v. Davide, 127 C. C. A. 454, 210 Fed. 870; Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A. 1915C, 62, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834.

an interstate run, this being essentially domestic service.

Oliver v. Northern P. R. Co. 196 Fed. 432; Robinson v. Baltimore & O. R. Co. | 237 U. S. 84, 59 L. ed. 849, 35 Sup. Ct. Rep. 491, 8 N. C. C. A. 1.

A man acting as an operator of a railroad pumping plant which furnishes water for interstate engines.

Horton v. Oregon-Washington R. & Nav. Co. 72 Wash. 503, 47 L.R.A. (N.S.) 8, 130 Paç. 897; Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 151, 57 L. ed. 1125, 1128, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779. A man going after a drinking cup for the use of the engine crew on an interstate trip.

Baltimore & O. R. Co. v. Whitacre, 124 Md. 427, 92 Atl. 1060, affirmed in 242 U. S. 169, 61 L. ed. 228, 37 Sup. Ct. Rep. 33.

The case at bar seems to parallel in principle the following cases decided by the Supreme Court of the United States, in which the employee was held to be engaged in interstate commerce:

Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 154, 57 L. ed. 1125, 1129, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779; Lamphere v. Oregon R. & Nav. Co. 47 L.R.A.(N.S.) 1, 116 C. C. A. 156, 196 Fed. 336; Horton v. Oregon-Washington R. & Nav. Co. 72 Wash. 503, 47 L.R.A.(N.S.) 8, 130 Pac. 897; Johnson v. Southern P. Co. 196 U. S. 1, 21, 49 L. ed. 363, 371, 25 Sup. Ct. Rep. 158, 17 Am. Neg. Rep. 412; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 159, 160, 57 L. ed. 1129, 1133, 1134, 33 Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156: North Carolina R. Co. v. Zachary, 232 U. S. 248, 260, 58 L. ed. 591, 596, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159, 9 N. C. C. A. 109; Baltimore & O. R. Co. v. Whitacre, 124 Md. 427, 92 Atl. 1060, affirmed in 242 U. S. 169, 61 L. ed. 228, 37 Sup. Ct. Rep. 33; New York C. & H. R. R. Co. v. Carr, 238 U. S. 260, 261, 263, 59 L. ed. 1298-1300, 35 Sup. Ct. Rep. 780, 9 N. C. C. A. 1; Louisville & N. R. Co. v. Parker, 242 U. S. 13-15, 61 L. ed. 119-121, 37 Sup. Ct. Rep. 4; Southern R. Co. v. Puckett, 244 U. S. 571, 573, 574, 61 L. ed. 1321, 1324, 1325, 37 Sup. Ct. Rep. 703, Ann. Cas. 1918B, 69; New York C. R. Co. v. White, 243 U. S. 188, 61 L. ed. 667, L.R.A.1917D, 1, 37 Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629, 13 N. C. C. A. 943; Erie R. Co. v. Winfield, 244 U. S. 170, 173, 61 L. ed. 1057, 1065, 37 Sup. Ct. Rep. 556, Ann. Cas. 1918B, 662, 14 N. C. C. A. 957.

The authorities usually relied on to take a case out of the Federal act are: Minneapolis & St. L. R. Co. v. Winters, 242 Ū. S. 353, 61 L. ed. 358, 37 Sup. Ct. Rep. 170, Ann. Cas. 1918B, 54, 13 N. C. C. A. 1127; Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 60 L. ed. 941, 36 Sup. Ct. Rep. 517, 11 N. C. C. A. 992; Shanks v. Delaware, L. & W. R. Co. 239 U. S. 556, 60 L. ed. 436, L.R.A. 1916C, 797, 36 Sup. Ct. Rep. 188; Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 59 L. ed. 1397, 35 Sup. Ct. Rep. 902; Illinois C. R. Co. v. Behrens, 233 U. S. 473, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163, 10 N. C. C. A. 153.

Cases holding the servant within the act, decided by Federal courts other than the Supreme Court of the United States, and by state courts, have been cited with approval by the Supreme Court; none have been reversed or disapproved of by the Supreme Court.

V.

Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 1, 116 C. C. A. 156, 196 Fed. 336; Horton v. Oregon-Washington R. & Nav. Co. 72 Wash. 503, 47 L.R.A. (N.S.) 8, 132 Pac. 897; Barker v. Kansas City, M. & O. R. Co. 88 Kan. 767, 43 L.R.A. (N.S.) 1121, 129 Pac. 1151; Montgomery V. Southern P. Co. 64 Or. 597, 47 L.R.A.(N.S.) 13, 131 Pac. 507; Law Illinois C. R. Co. L.R.A.1915C, 17, 126 C. C. A. 27, 208 Fed. 869; Thornton, Federal & Safety Appliance Acts, p. 94; Saunders v. Southern R. Co. 167 N. C. 375, 83 S. E. 573; England v. Southern P. Co. 210 Fed. 92; Illinois C. R. Co. v. Porter, 125 C. C. A. 55, 207 Fed. 311; Cincinnati, N. O. & T. R. Co. v. Clarke, 169 Ky. 662, 185 S. W. 94; Grybowski v. Erie R. Co. 88 N. J. L. 1, 95 Atl. 764; Cincinnati, N. O. & T. P. R. Co. v. Bonham, 130 Tenn. 435, 171 S. W. 79; Armbruster v. Chicago, R. I. & P. R. Co. 166 Iowa, 155, 147 N. W. 337; Philadelphia, B. & W. R. Co. v. McConnell, 142 C. C. A. 555, 228 Fed. 263; Lombardo v. Boston & M. R. Co. 223 Fed. 432; San Pedro, L. A. & S. L. R. Co. v Davide, 127 C. C. A. 454, 210 Fed. 870; Hardwick v. Wabash R. Co. 181 Mo. App. 156, 168 S. W. 328; Wesseler v. Great Northern R. Co. 90 Wash. 234, 155 Pac. 1063, 157 Pac. 461; Sanders v. Charleston & W. C. R. Co. 97 S. C. 50, 81 S. E. 283.

Mr. Justice Pitney delivered the opinion of the court:

Respondent brought his action in a state court of Maryland under the provisions of the Federal Employers' Liabil

ity Act of April 22, 1908, as amended, and camp cleaner or attendant for a April 5, 1910 (chap. 149, 35 Stat. at L. 65, chap. 143, 36 Stat. at L. 291, Comp. Stat. 1916, § 8662, 8 Fed. Stat. Anno. 2d ed. p. 1369), to recover damages for personal injuries sustained by him upon one of petitioner's lines of railroad in the state of Maryland over which petitioner was engaged in transporting interstate as well as intrastate commerce.

[102] Plaintiff was employed by defendant in connection with a gang of bridge carpenters, who were employed by defendant in the repair of the bridges and bridge abutments upon said line of railway. The gang, including plaintiff, worked over the entire line, and were moved from point to point as the repair work required, in what was called a "camp car," furnished and moved by defendant, in which they ate, slept, and lived. Plaintiff's principal duties were to take care of this car, keep it clean, attend to the beds, and prepare and cook the meals for himself and the other members of the gang. On December 23, 1915, the bridge carpenters were engaged in repairing a bridge abutment on defendant's line near Easton, Maryland, and the camp car was on defendant's sidetrack at Easton; and while plaintiff was in the car, engaged in cooking a meal for the bridge carpenters and himself, the engineer of one of defendant's trains, without warning, ran the engine upon the sidetrack and against a car to which the camp car was coupled, with such force that plaintiff received injuries to recover for which his action was brought.

gang of bridge carpenters who were quartered "for their own convenience" [103] in a camp car belonging to petitioner, which was not being moved in interstate commerce, but was located and standing on a switch track in the neighborhood of the bridge upon which the carpenters then were, and for some weeks prior thereto had been, and for some time afterwards were working; and since plaintiff, at the moment of the injury, was engaged in cooking food which was the property of himself and the carpenters, he was not at the time engaged in interstate commerce.

As thus stated, the relation of plaintiff's work to the interstate commerce of his employer would seem to be rather remote. But upon a closer examination of the facts the contrary will appear. Taking it to be settled by the decision of this court in Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 152, 57 L. ed. 1125, 1128, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779, that the repair of bridges in use as instrumentalities of interstate commerce is so closely related to such commerce as to be, in practice and in legal contemplation, a part of it, it of course is evident that the work of the bridge carpenters in the present case was so closely related to defendant's interstate commerce as to be in effect a part of it. The next question is, What was plaintiff's relation to the work of the bridge carpenters? It may be freely conceded that if he had been acting as cook and camp cleaner or attendant merely for A judgment in plaintiff's favor was the personal convenience of the bridge affirmed by the Maryland court of ap- carpenters, and without regard to the peals (103 Md. 345, — A.L.R., 103 Atl. conduct of their work, he could not prop945), and the case comes here on a writerly have been deemed to be in any sense of certiorari.

The only question we have to consider is whether plaintiff, at the time he was injured, was engaged in interstate commerce within the meaning of the statute. Petitioner, citing Illinois C. R. Co. v. Behrens, 233 U. S. 473, 478, 58 L. ed. 1051, 1055, 34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163, 10 N. C. C. A. 153, and Erie R. Co. v. Welsh, 242 U. S. 303, 306, 61 L. ed. 319, 324, 37 Sup. Ct. Rep. 116, as conclusive to the effect that the true test is the nature of the work being done by the employee at the time of the injury, and that what he had been doing before and expected to do afterwards is of no consequence, argues that since plaintiff, at the time of the injury and for some weeks prior thereto, was and had been working as mess cook

a participant in their work. But the fact was otherwise. He was employed in a camp car which belonged to the railroad company, and was moved about from place to place along its line according to the exigencies of the work of the bridge carpenters, no doubt with the object, and certainly with the necessary effect, of forwarding their work by permitting them to conduct it conveniently at points remote from their homes and remote from towns where proper board and lodging were to be had. [104] The circumstance that the risks of personal injury to which plaintiff was subjected were similar to those that attended the work of train employees generally and of the bridge workers themselves when off duty, while not without significance, is of little moment. The significant