curred, the employee's contract of employment was entered into, or the usual place of the employee's employment; and the provisions of the Act approved April 22, 1908, shall not apply.

"The liabilities of the parties, the right to recover, and the procedure by which the claim shall be enforced for such injuries or death shall be governed solely by the terms of such Workmen's Compensation Act, and recovery thereunder shall be had only in the tribunal designated for that purpose by such Act. A recovery under the provisions of the Workmen's Compensation Act of any state, territory or the District of Columbia, shall be a complete bar to any proceedings under the Workmen's Compensation Act of any other state, territory or the District of Columbia.

"The provisions of this Act shall furnish the exclusive remedy in all causes of action arising under any Federal statute enacted for the promotion of the safety of employees of common carriers by railroad.

"The provisions of this Act shall be effective as to injuries and deaths occurring on and after the ---- day of

1950, but shall not apply to claims arising prior to said date for such injuries or deaths."

FURTHER RESOLVED, That the Committee on Jurisprudence and Law Reform, jointly with the Committee on Commerce, be and hereby is directed to advocate the introduction and passage of such an act in the Congress of the United States by all appropriate means.

As yet, no bill has been introduced in Congress to this effect. What position the railroad industry will take in the event such a bill is introduced in Congress has not, so far as I know, been decided.

V

State Workmen's Compensation Laws

Each of the forty-eight states now has a workmen's compensation law. The extent to which railroads and their employees are subject to these laws is not susceptible of exact determination. The legislatures of forty-four states met during the year 1949 and enacted measures to "improve" their workmen's compensation laws. Most of them liberalized the benefits, and, in many instances, the benefits were increased substantially. During that year the benefits under the Federal Employers' Compensation Act were also liberalized. In addition to the liberalization of benefits, the state legislation for 1949 was outstanding for the trend toward full coverage of occupational diseases instead of schedule coverage. For instance, South Carolina enacted occupational disease coverage for the first time and adopted the all-inclusive type of law. Now, more than half of the forty states with occupational disease provisions have full coverage. Other amendments in 1949 included extension of coverage, reduction of waiting period, more liberal benefits, increased allowances for burial expenses, second-injury fund and vocational rehabilitation pro

visions, not to mention procedural changes.55 These facts are recited to indicate the impossibility of forecasting the future costs of any workmen's compensation law, State or Federal. It is conceivable that within a few years it would require a 6% payroll tax to support any Federal workmen's compensation law that might possibly be enacted by the Congress.

Some of the states have "elective" laws, under which employers may refuse to operate under the compensation act if they prefer to risk an injured worker's suit for damages. So far as can be ascertained, twenty-six states have elective laws and twenty-two have compulsory statutes which require every employer within the scope of the compensation act to accept that act and pay the compensation specified.

In eleven states (Illinois, Kansas, Louisiana, Maryland, Montana, New Mexico, New York, Oklahoma, Oregon, Washington and Wyoming) the compensation laws apply mainly to listed "hazardous” or “extrahazardous" employments. Illustrative of the complications which arise in endeavoring to interpret or apply compensation laws is the provision of the Maryland law which lists "extra hazardous" employments that are covered and then, in addition, provides that the act shall apply "to all extra-hazardous employments not specifically enumerated and to all work of an extra-hazardous nature. This is cited to show that State workmen's compensation laws are no more "certain" than is the Federal Employers' Liability Act.

The power of a State to enact workmen's compensation laws, including the power to do away with the fellow servant rule and the assumption of risk doctrine as to employees engaged at the time of the accident in a service not coming within the provisions of the Federal Employers' Liability Act, was sustained in Boston & Maine R. Co. v. Armburg,56 based upon many previous decisions of the Supreme Court of the United States.

On the West Virginia Northern Railroad an employee, after repairing a switch, was killed in a collision with a locomotive while returning on a track car from the place of his labor to his home. Compensation was awarded by the State Compensation Commission. Later, suit was brought under the Federal Employers' Liability Act. The trial court refused the railroad's request to instruct the jury that, in determining the amount of verdict, they should take into consideration amounts theretofore received by the plaintiff from the State Workmen's Compensation fund. Judgment for the plaintiff was affirmed by the Supreme Court of West Virginia.57

The Supreme Court of West Virginia held that since the employee was, at the time of the accident, engaged in work which was in furtherance of interstate commerce, the award of compensation by the State Compensation Commission, under the State Workmen's Compensation Law, was void, and that an action under the Federal Employers' Liability Act was not barred. The Court further held that the trial court properly refused the railroad's request to instruct the jury in deter

55 BLS Monthly Labor Review, November 1949.

56 285 U. S. 234.

57 West Virginia Northern R. Co. v. Riley, 51 S. E. (2d) 119.

mining the amount of verdict, they should take into consideration amounts theretofore received by the plaintiff from the State Workmen's Compensation Fund. The Supreme Court of the United States denied a petition for writ of certiorari.5

58

VI

The Real Issues

It would seem to be possible, constitutionally, to repeal the Federal Employers' Liability Act and to substitute therefor a Federal workmen's compensation act, or alternatively, to make the provisions of the State workmen's compensation laws applicable to railroad employee injuries, if either would be desirable. This was considered constitutionally possible even before the Alton case was decided.59 It would also seem to be possible, constitutionally, to broaden the provisions of the Longshoremen's and Harbor Workers Compensation Act, so as to make that law applicable to railroad employees.60

The Supreme Court of the United States is now much more “liberal” than when the Alton case was decided, so that constitutional impediments have very largely become evanescent. The constitutional problems having vanished, the real issues are whether or not such legislation is desirable. Upon this point no opinion is expressed.

MR. CARL MCFARLAND NAMED PRESIDENT OF MONTANA UNIVERSITY Mr. Carl McFarland, 46, a District of Columbia lawyer, and former Assistant United States Attorney General, has been named President of Montana University.

Mr. McFarland will succeed Dr. James A. McCain, who resigned to become President of the Kansas State College.

Mr. McFarland is a member of the firm of McFarland and Sellers, and is a member of the Association of I. C. C. Practitioners.

58 West Virginia Northern R. R. Co. v. Riley, 336 U. S. 96. Another case similar to the Riley case is West Virginia Northern R. R. Co. v. Pritt, 51 S. E. (2d) 105; certiorari denied 333 U. S. 961.

59 Albertsworth and Cilella, Interstate Railway Industrial Harms, 28 Illinois Law Review 587 and 774, 785-786.

60 See, Andrews, "Complete the Circle of Compensation," 15 American Labor Legislation Review, 285-288.

Military Traffic Service Policies *

The Secretary of Defense, by directive on 23 August 1950, established the Military Traffic Service "to provide under one authority efficient and economical traffic management for the movement within the Continental United States of persons and things for . . . the Department of Defense The policies herein stated shall govern the applicable activities of all departments and agencies (hereinafter referred to as military departments) of the Department of Defense with respect to: (1) negotiation for commercial transportation of persons and things; (2) routing; (3) equipment use; and (4) highway utilization.

Within sixty days from the effective date of this statement of policy, (a) all regulations, regardless of nomenclature used to describe such matters, issued by the military departments and in effect, insofar as they conflict with the policies stated herein, shall be modified, cancelled, or vacated; (b) regulations shall be issued by the military departments to cover any areas of policy stated herein and not presently the subject of regulations.

The national transportation policy, as enacted by Congress in the Transportation Act of 1940, effective September 18, 1940, is the preamble to the Interstate Commerce Act. It is quoted below for guidance in connection with any references thereto in the policies of the Military Traffic Service:

National Transportation Policy

"It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discrimination, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions;-all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act. shall be administered and enforced with a view to carrying out the above declaration of policy."

The Civil Aeronautics Act of 1938 (P. L. 706, 75th Congress-3d Session) states that, among other things, it is the policy of Congress with respect to air transportation, to promote "x x x adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices x x x"

* Effective Nov. 15, 1950.

—315—

Section I-Negotiation Policies

A. Each military department shall request of the Military Traffic Service authority to proceed in all proposed rate negotiations (tariffs, schedules, or Section 22 agreements) affecting movements of 1,000 tons or more, and shall report the results of such negotiation as authorized by MTS, for review and decision as to publicity outside of the Department of Defense. Rates involving lesser movements may be negotiated without prior clearance, but shall be then reported as above. Voluntary quotations shall be reported in the same manner as provided for rates involving lesser movements.

B. No promise of tonnage by any military department may be made to carriers or owners of commercial transportation equipment as an inducement to acquire additional equipment or new cr additional operational authority.

C. Attendance at and participation in rate meetings:

1. Representatives of the military departments are authorized by MTS to attend rate meetings for the following purposes:

a. Meetings for presentation of facts and requests or recommendations when held with a carrier, or with a group of carriers when such group is authorized by law (under the Interstate Commerce Act, as amended by Section 5a, June 17, 1948Reed-Bulwinkle Agreements as approved by the Commission; or under Sections 412 and 414 of the Civil Aeronautics Act of 1938, as amended) jointly to consider, initiate and establish rates, fares, classifications, etc., and such group so notifies the military department in advance that it possesses such authority; and,

b. Meetings for opening of bids with a carrier, or carriers, for the transportation of persons or things where authorized by regulations of the military departments to do so.

2. No representative of any military department shall serve as presiding officer of or actively participate in any capacity other than that of a user of the service in a meeting including more than one carrier, when such meeting is called to negotiate rates, or to solicit modification of bids.

D. No representative of any military department shall initiate, defend, intervene, or participate in, or supply information in proceedings before transportation regulatory bodies without prior approval from the Military Traffic Service, except to the extent authorized in Munitions Board Policy, 30 October 1950, captioned, "Participation before governmental bodies on applications for new or increased operational authority or franchise." Copy attached.