In order to meet the constitutional objections raised by the Supreme Court to the act of 1906, Congress in 1908 enacted a measure similar to the earlier law except that its provisions are expressly confined to actions growing out of injuries or deaths to persons while actually engaged in the carrying on of interstate commerce.
The constitutionality of this measure has not been passed upon by the Supreme Court. It would appear, however, that its validity is not vet a matter beyond doubt. In the Howard case the court held, as already quoted, that the relation between an interstate carrier and its servants is not necessarily a matter distinct from the interstate commerce which is carried on, and, therefore, beyond the regulative control of Congress; but the court did not hold, and has not yet specifically held that the matter of the liability of such a carrier for accidents accruing to its employees due to the negligence or ill conduct of employers is so directly related to interstate commerce as to bring this liability within the determining power of Congress. Unless this be so the act of 1908, though limited in terms to interstate commerce, must fail.13
12 The law in a later case was held valid as to the District of Columbia, and inferentially as to the Territories. El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S. 87; 30 Sup. Ct. Rep. 21.
13 It is to be remarked, however, that in Adair v. United States (208 U. S. 161; 28 Sup. Ct. Rep. 277; 52 L. ed. 436) the decision in the Howard case is referred to as sustaining the power of Congress "to prescribe the rule of liability, as between interstate carriers and its employees in such interstate commerce, in cases of personal injuries received by employees while actually engaged in such commerce."It would seem to the author, however, that the language of the Howard case was not quite so specific as this.