(concurring):
I concur in the affirmance of this judgment. By the Interstate Commerce Law, as amended in 1906, 1908 and 1910 (24 U. S. Stat. at Large, 379, chap. 104, as amd. by 34 id. 584, chap. 3591; Id. 838, Res. No. 47; 35 id. 60, chap. 143; 36 id. 539, chap. 309), Congress has, it seems to me, taken control of the subject of interstate commerce, and the action of Congress is, therefore, conclusive. By section 1 of that act it is provided that “ The provisions of this Act 'shall apply to * "x" * any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad * * * from one State or Territory of the United States or the District of Columbia, to any other State or Territory of the United States or the District of Columbia * * *; and .it shall be *114the duty of every carrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto; and to provide reasonable facilities for operating such' through routes and to make reasonable rules and regulations with respect to the exchange, interchange and return of cars used therein, and for the operation of such through routes, and providing for reasonable compensation to those entitled thereto.” (24 U. S. Stat. at Large, 379, § 1, as amd. by 36 id. 544, 545, § 7.) And further: “No common carrier subject to the provisions of this Act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except * * * to necessary care takers of live stock, poultry, milk and fruit "x" "x" *.” (Id. § 1, as amd. by 36 id. 546, § 7.) By this enactment Congress has undertaken to regulate the transportation of passengers and property from one State to another, the charges for such transportation, and prohibited free transportation except in certain specified instances. By expressly allowing the free transportation of ‘ ‘ necessary care takers of five stock,” the agreements or contracts under which such caretakers were to be transported came within the supervision of the Federal government and its regulations and genera] policy and control, and it is expressly provided that “ All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone or cable, as aforesaid,, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful.” (24 U. S. at Large, 379, § 1, as amd. by 36 id. 545, § 7.)
The defendant, as a common carrier, was bound to transport for the plaintiff his live stock from .the State of Illinois to the State of New York. For such service, which included the transportation of the live stock and the transportation of -the plaintiff as the caretaker, it was entitled to recover the reasonable compensation as had been established under the provisions of the act of Congress. If the charges for this service were unjust and unreasonable, Congress has declared such a *115charge to be unlawful. Thus Congress had taken within its control the whole subject of the transportation of passengers and merchandise, including the transportation of a caretaker for live stock, and it imposed upon the carrier certain duties in relation to the rendition of such services and regulated the compensation which it was to receive therefor. It seems to me, according to the principles established in Southern Railway Company v. Reid (222 U. S. 435), this brought the whole subject within the control of the Federal government so that it comes within the third class mentioned in that case, i.e., “ Those in which the action of Congress is exclusive and the State cannot act at all.” In Southern Pacific Co. v. Schuyler (227 U. S. 601) it was held that whether the anti-pass provision of the Hepburn Act prohibits carriers from giving free interstate transportation to employees of the railway mail service when they are not on duty but traveling for their own benefit or pleasure, is a Federal question, but the question whether the relation of carrier and passenger arises in the case of a gratuitous passage is, in the absence of an act of Congress regulating the matter, a question not of Federal but of State law. As it was said, “Neither the letter nor the spirit of the act makes an outlaw of him who violates its prohibition by either giving or accepting gratuitous interstate carriage.” These two cases, I think, illustrate the' extent to which by this act now under consideration Congress has taken control of interstate commerce. It has determined who shall and who shall not be carried by carriers engaged in interstate commerce without payment of the fare or charges for the service rendered. It regulates and determines the rates that shall be charged for transportation of persons or merchandise and the contracts under which such service is to be performed; but it has not attempted to relieve the carrier from liability to a person traveling in violation of the act for negligence in the performance of the duty which it has assumed. The agreements or contracts under which interstate commerce is carried on, the rates paid or charges made for such service are, it seems to me, brought within the jurisdiction of the Federal authority, and as to such agreements or contracts the Federal jurisdiction must necessarily control, and the local regulations of the several States *116or the public policy of the several States are superseded by the law as established and enforced by the general government. The whole matter, so far as the regulation of interstate commerce is concerned, has passed from the control of the States to the control of the Federal government. The validity of any contract for services rendered or to be rendered in the transportation of passengers or property is thus regulated by the law of the general government. By the act every unjust or unreasonable charge for such service is declared to be unlawful. Therefore, the question as to whether a charge is reasonable or unreasonable, is just or unjust, or a contract for transportation is valid or invalid, is a Federal question to be determined by the laws of the United States.
In this case the question is whether the contract signed by the parties is valid or enforcible. Under the act of Congress plaintiff was entitled to have his goods transported. Where a contract was made in the performance of that duty imposed by Congress, such contract was, I think, to be governed and construed by the Federal law under which it was executed.
Assuming, therefore, that the contract under which this shipment was made was under the control of the laws of the United States, the question whether or not such a contract as was made by the plaintiff in this case relieving the carrier from liability for its own negligence was void must, as I [view it, depend upon the laws of the United States and not upon the laws of the State in which the contract was made or the States through which it was to operate. There can be no question but what the Supreme Court of the United States has consistently held such a contract to be void as against its public policy. Since the case of Railroad Co. v. Lockwood (17 Wall. 357) such contracts have been absolutely void and unenforcible in the courts of the United States. In that case the conclusion was based upon the proposition that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law; that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants; that a drover traveling on a pass, such as was given in
*117this case, for the purpose of taking care of his stock on the train, is a passenger for hire. This was reaffirmed in Chicago, Milwaukee, etc., Railway v. Solan (169 U. S. 133), where it was held that by the law of this country, in the absence of any statute controlling the subject, any contract by which a common carrier of goods or passengers undertakes to exempt himself from all responsibility for loss or damage arising from the negligence of himself or his servants is void as against public policy. In Adams Express Company v. Croninger (226 U. S. 491) it was said: “That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary.” In Santa Fe Railway v. Grant Bros. (228 U. S. 177) the court again announced the general rule, saying: “It is the established doctrine of this court that common carriers cannot secure immunity from liability for them negligence by any sort of stipulation.” Therefore, if the common law as determined by the Supreme Court of the United States is to control interstate shipments, this contract, under which the defendant claims immunity, was absolutely void, and it would be the foundation for no defense against plaintiff’s claim for damages for negligence unless such a contract has been validated by act of Congress.
By section 6 of the Interstate Commerce Act, as amended, it is provided: “That every common carrier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. * * *
No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless.the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection *118therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time * * (24 U. S. Stat. at Large, 380, § 6, as amd. by 34 id. 586, 587, § 2.) This section relates solely to the rates, fares and charges for transportation. It does not attempt to validate contracts which were void as against the public policy of the United States at the time that the act was passed. As I read the act, it did not change the public policy of the United States which refuses to enforce such contracts. The common carrier by filing a tariff with the commission created by the act could not, as I view it, change the whole public policy of the United States and validate contracts which-that public policy had declared void and unenforcible. The charge to be collected by the carrier was fixed and from that charge the carrier could not deviate. For that charge the passenger or shipper was entitled to the services rendered, but before the tariff was fixed a contract exempting the carrier from liability for its own or its employee’s negligence was unlawful and it remained unlawful until Congress should by some express provision change the law of the United States and render such a contract enforcible.
/ My conclusion, therefore, is that Congress has taken within its exclusive control all interstate commerce and that thereby the general law of the United States becomes applicable to interstate shipments; that by the law of the United States any contract exempting the carrier from liability for its own negligence or the negligence of its servants is unlawful and void, and that Congress has not by any provision validated such a contract. Therefore, it was no -defense to the action that the shipper had signed a contract relieving the carrier from liability for its own negligence//
It follows that the judgment was right and should be affirmed.
McLaughlin, J., concurred.
Judgment affirmed, with costs.