Opinion of the court. able to judge for himself he had a right to rely on the judgment of Collett, and, doubtless, entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy of his age and inexperience to do a thing which, in its very nature, was perilous, and which any man of ordinary sagacity would know to be so. Indeed, it is very difficult to reconcile the conduct of Collett with that of a prudent man, having proper regard to the responsibilities of his own position and the rights of others. It is charitable to suppose that he did not appreciate the danger and acted without due deliberation and caution. For the consequences of this hasty action the company are liable, either upon the maxim of respondeat superior, or upon the obligations arising out of the contract of service. The order of Collett was their order. They cannot escape responsibility on the plea that he should not have given it. Having intrusted to him the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. If they are not insurers of the lives and limbs of their employés, they do impliedly engage that they will not expose them to the hazard of losing their lives, or suffering great bodily harm, when it is neither reasonable nor necessary to do so. The very able judge who tried the case instructed the jury on the point at issue in conformity with these views, and we see no error in the record. JUDGMENT AFFIRMED. Dissenting, Mr. Justice BRADLEY. [See Packet Company v. McCue, supra, p. 508.] Statement of the case. RAILROAD COMPANY v. FULLER. A State legislature passed in 1862 an act "in relation to the duties of railroad companies," enacting 1st. That each railroad company should annually, in a month named by the act, fix its rates for the transportation of passengers and of freights of different kinds; 2d. That it should, on the first day of the next month, cause a printed copy of such rates to be put up at all its stations and depots, and cause a copy to remain posted during the year; 3d. That a failure to fulfil these requirements, or the charging of a higher rate than was posted, should subject the offending company to the payment of certain penalties prescribed. Congress, afterwards (in 1866), by an act whose title was "An act to facilitate commercial, postal, and military communication. between the several States," and which recited that "the Constitution of the United States confers upon Congress, in express terms, the power to regulate commerce among the several States;" and goes on "Therefore, be it enacted," &c., enacted "That every railroad company in the United States, whose road is operated by steam. . . be, and hereby is authorized to carry upon and over its road, boats, bridges, ferries, all passengers, troops, gov ernment supplies, mails, freights, and other property on their way from any State to another State, and to receive compensation therefor." And enacted further, "That Congress may at any time, alter, amend, or repeal this act." Held, in the case of a railroad running through several States, including that where the State enactment above mentioned had been made, that the State enactment was but a police law, and therefore constitutional. ERROR to the Circuit Court for the District of Iowa; the case being thus: A statute of Iowa "in relation to the duties of railroad companies," passed in 1862,* thus enacts: "In the month of September, annually, each railroad company shall fix its rates of fare for passengers, and freights for transportation of timber, wood, and coal, per ton, cord, or thousand feet, per mile, also, its fare and freight per mile, for transporting merchandise and articles of the first, second, third, and fourth grades of freight. "And on the 1st day of October following, shall put up at * Laws of the Ninth General Assembly of the State of Iowa, second section, chapter 169. Statement of the case. all the stations and depots on its road, a printed copy of such fare and freight, and cause a copy to remain posted during the year. "For wilfully neglecting so to do, or for receiving higher rates of fares or freight than those posted, the company shalt forfeit not less than $100, nor more than $200, to any person injured thereby and suing therefor." On the 15th of June, 1866,* Congress passed an act thus: "An Act to facilitate Commercial, Postal, and Military Communication among the several States. "Whereas, the Constitution of the United States confers upon Congress, in express terms, the power to regulate commerce among the several States, to establish post-roads and to raise and support armies; therefore— "SECTION 1. Be it enacted, That every railroad company in the United States, hose road is operated by steam, its successors and assigns, be and is hereby authorized to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, government supplies, mails, freight, and property on their way from any State to another State, and to receive compensation therefor. . . . Provided, &c. "SECTION 2. Be it further enacted, That Congress may at any time, alter, amend, or repeal this act." These two enactments, of the State and of the United States, being on the statute-books, the Chicago and Northwestern Railroad Company-a corporation chartered by Illinois and having its principal place of business at Chicago in that State, and working a continuous line of railway from the said Chicago, through Illinois, Iowa, and other States (by the legislatures of which, of course, the different parts of its road were authorized),-having posted their rates of freight and put up a schedule of them in their office, in the station, was transporting, in pursuance of the request of one Fuller, certain goods of his from the said Chicago in Illinois to a place called Marshalltown, in Iowa. IIaving charged and received from Fuller, as he alleged, a higher * 14 Stat. at Large, 66. Argument for the railroad company. rate of freight than that posted, Fuller sued them in one of the District Courts of Iowa to recover the penalty which the Iowa enactment purported to give in such a case. The company set up, among other defences, that the said enactment was in violation of that clause of the Constitution* which ordains that- "Congress shall have power to regulate commerce with foreign nations and among the several States." The court in which the suit was brought and the Supreme Court of the State on appeal from it, held that the enactment of Iowa was but a "police regulation," and accordingly that it was valid. Judgment going accordingly the case was now brought here. Messrs. H. C. Henderson and B. C. Cook, for the plaintiff in error: Whether, if the United States had not legislated upon the matter of "compensation" to railroad companies carrying "freight and property on their way from any State to another State," the enactment of Iowa would be good as falling within the language of cases like Ex parte McNiel,† Willson v. The Blackbird Creek Marsh Company,‡ Gilman v. The City of Philadelphia,§ and others-in which it is said that the States may legislate but only until Congress sees fit to do so-it is wholly irrelative to the present case to inquire. For here Congress by its act of June 15th, 1866, has legislated. And there was great reason (it may be said incidentally) why at that time Congress should legislate. Then for the first time our railways were about to cross the Rocky Mountains, to span the continent, and unite oceans. The subject had now become one of National importance. Congress, aroused by the vastness of this enterprise, saw the subject in its true relations, commercial, postal, and military; and accordingly it meant to take and did take the whole subject under its care, for the protection and benefit of all the people * Article 1, 28. 2 Peters, 250. † 13 Wallace, 240. 3 Wallace, 728. Argument for the railroad company. of the United States. The act itself shows all this. Its title is to "facilitate commercial intercourse . . . among the several States." Its preamble recites that the Constitution of the United States confers upon it (Congress), in express terms, the power to regulate commerce between them, and, "therefore," it enacts. Therefore it makes one unconditional provision about compensation to railroads carrying freight or property on its way, by steam and rail, "from any State to another State;" and there too it stops. Has not Congress then "regulated" the subject? If so, the right of the States by any view to do the same thing has ceased. It is unimportant that Congress while acting has not seen fit in its regulations to go into a great variety of details. Regulation does not necessarily consist in prescribing details, though when they are prescribed that too is "regulation;" perhaps not wise regulation. What, however, is wise regulation and what unwise, Congress must when acting on the subject alone decide, and it has decided. The right of the State to regulate at all has, therefore, ceased. Yet here the State does attempt to regulate, and not only so but to regulate in opposition to Congress. Congress gives to the railroad company the right "to carry," and to receive compensation "therefor;" that is to say, it gives to the company the right to receive compensation for carrying, simply. The company is not bound, "in the month of September," to fix "rates" or "freights," or "on the 1st day of October following," to "put up at all the stations and depots on its road a printed copy of such fare and freights;" and by the legislation of Congress no one can sue the company and recover any $100 or any $200 penalty for its "wilfully neglecting so to do." Congress leaves all this matter of fixing rates, and of announcing them, &c., to the agreement of the parties, and the laws of trade; and would refer any party aggrieved by a breach of contract to the ordinary remedies of justice. But the State comes in, and that very part of the subject which Congress has regulated, and regulated in one way, it attempts to regulate, and to regulate in a different way; a way which does not "facilitate commercial in |