changed. Missouri does not dispute the fact that when Nebraska was admitted into the Union the body of land described in the present record as Island Precinct was in Nebraska. It is equally clear that those lands did not cease to be within the limits of Nebraska by reason of the avulsion of July 5th, 1867.

ever, that the doctrine of accretion has no | by what is called avulsion, the course of application to the Missouri river, on ac- a river is materially and permanently count of the rapid and great changes constantly going on in respect to its banks; but the contrary has already been decided by this court in Jeffries v. East Omaha Land Co. 134 U. S. 178, 189, 33 L. ed. 872, 876, 10 Sup. Ct. Rep. 518." In Nebraska v. Iowa, it appeared that the Missouri river near the land there in dispute had pursued a course in the nature of an ox-bow, For the reasons stated we adjudge, in but it suddenly cut through the neck of respect of the matters involved in this the bow and made for itself a new channel. suit, that the middle of the channel of the The court said: "This does not come with- Missouri river, according to its course as in the law of accretion, but that of avul- it was prior to the avulsion of July 5th, sion. By this selection of a new channel 1867, is the true boundary line between the boundary was not changed, and it re- Missouri and Nebraska. Accordingly, the mained as it was prior to the avulsion,- original bill must be dismissed, and a dethe center line of the old channel; and cree entered in favor of the state of Nethat, unless the waters of the river re-braska on its cross bill. turned to their former bed, became a fixed It appears from the record that about and unvarying boundary, no matter what might be the changes of the river in its new channel."

Manifestly, these observations cover the present case and make it clear that the boundary line between Missouri and Nebraska in the vicinity of Island Precinct cannot be taken to be the middle of the channel of the Missouri river, as it has been since the avulsion of 1867 and now is, but must be taken to be the middle of the channel of the river as it was prior to such avulsion. We cannot see that there are any facts or circumstances that withdraw the present case from the rule established in former adjudications.

the year 1895 the county surveyors of Nemaha county, Nebraska, and Atchison county, Missouri, made surveys of the abandoned bed of the Missouri river, in the locality here in question, ascertained the location of the original banks of the river on either side, and, to some extent, marked the middle of the old channel. If the two states agree upon these surveys and locations as correctly marking the original banks of the river and the middle of the old channel, the court will, by decree, give effect to that agreement; or, if either state desires a new survey the court will order one to be made, and cause monuments to be placed so as to permanently mark the boundary line between the two states. The disposition of the case by final decree is postponed for forty days, in order that the court may be advised as to the wishes of the parties in respect of these details.

(196 U. S. 1) W. O. JOHNSON, Petitioner,

v.

32.)

Counsel for Missouri contend that the act admitting Missouri into the Union, the memorial sent by the legislature of that state to Congress in 1831, and the act of June 7, 1836, with the proclamaon of the President as to the extinguishment of Indian titles to lands between Missouri, as originally bounded, and the Missouri river, show that Congress intended that, so far as the boundary of the state of Missouri was concerned, the mid- SOUTHERN PACIFIC COMPANY. (No. dle of the channel of the Missouri river, wherever it may be at any particular time, -and regardless of any changes, however caused or however extended, or permanent, suddenly occurring in its course or channel, was to be taken as a perpetual, natural monument, fixing the boundary line. We cannot accept this view. We perceive no reason to believe that Congress intended, either by the acts of 1820 and 1836 relating to Missouri, or the act admitting Nebraska into the Union, to al· ter the recognized rules of law which fix the rights of parties where a river changes its course by gradual, insensible accretions, or the rules that obtain in cases where,

W. O. JOHNSON, Piff. in Err.,

v.

SOUTHERN PACIFIC COMPANY.
87.)

Railroads

1.

(No.

con

automatic couplers struction of statute in derogation of common law construction of penal

statute.

Locomotives are embraced by the words

"any car" in the act of March 2, 1893 (27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), § 2, prohibiting common car

riers from using any car in moving interstate commerce not equipped with automatic couplers, although locomotives were, elsewhere in the statute, in terms required to be equipped with power driving-wheel brakes. Statement by Mr. Chief Justice Fuller: 2. The doctrine that statutes in derogation of Johnson brought this action in the disthe common law are to be construed strictly trict court of the first judicial district of does not demand that the act of March 2, Utah against the Southern Pacific Com1893 (27 Stat. at L. 531, chap. 196, U. S.pany to recover damages for injuries reComp. Stat. 1901, p. 3174), compelling in-ceived while employed by that company as

in which there is an undoubted intention to a brakeman. The case was removed to the make some change in the existing law, circuit court of the United States for the should be so construed as to defeat the ob-district of Utah by defendant on the vious object of Congress. ground of diversity of citizenship.

3. The rule that penal statutes are to be construed strictly does not permit such a construction as defeats the obvious intention of the legislature.

Argued October 31, 1904. Decided Decem- circuit, and the judgment was affirmed. 54

the one writ and the other. Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 145, 43 L. ed. 108, 111, 18 Sup. Ct. Rep. 808.

uing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge."

The circuit court of appeals held, in substance, Sanborn, J., delivering the opinion and Lochren, J., concurring, that the locomotive and car were both equipped as required by the act, as the one had a power driving-wheel brake and the other a coupler; that § 2 did not apply to locomotives; that at the time of the accident the dining car was not "used in moving inter

The plaintiff claimed that he was relieved of assumption of risk under common-law rules by the act of Congress of March 2, 1893 (27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), en titled "An Act to Promote the Safety of Employees and Travelers upon Railroads by Compelling Common Carriers Engaged in Interstate Commerce to Equip their Cars with Automatic Couplers and Con-state traffic;" and, moreover, that the lotinuous Brakes and their Locomotives with Driving-Wheel Brakes, and for Other Purposes."

The issues involved questions deemed of such general importance that the government was permitted to file brief and be heard at the bar.

comotive, as well as the dining car, was furnished with an automatic coupler, so that each was equipped as the statute required if § 2 applied to both. Thayer, J., concurred in the judgment on the latter ground, but was of opinion that locomotives were included by the words "any car" in the 2d section, and that the din"That from and after the first day of ing car was being "used in moving interJanuary, eighteen hundred and ninety-state traffic."

The act of 1893 provided:

eight, it shall be unlawful for any com We are unable to accept these conclumon carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traf fic not equipped with a power drivingwheel brake and appliances for operating the train-brake system.

"Sec. 2. That on and after the first day of January, eighteen hundred and ninetyeight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

"Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States District Attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed, and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred."

sions, notwithstanding the able opinion of the majority, as they appear to us to be inconsistent with the plain intention of Congress, to defeat the object of the legislation, and to be arrived at by an inadmissible narrowness of construction.

The intention of Congress, declared in the preamble and in §§ 1 and 2 of the act, was "to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes," those brakes to be accompanied with "appliances for operating the trainbrake system;" and every car to be "equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars," whereby the danger and risk consequent on the existing system was averted as far as possible.

The present case is that of an injured employee, and involves the application of the act in respect of automatic couplers, the preliminary question being whether locomotives are required to be equipped with such couplers. And it is not to be successfully denied that they are so required if the words "any car" of the 2d section were intended to embrace, and do embrace, "Sec. 8. That any employee of any such locomotives. But it is said that this cancommon carrier who may be injured by not be so because locomotives were elseany locomotive, car, or train in use con- where, in terms, required to be equipped trary to the provision of this act shall not with power driving-wheel brakes, and that be deemed thereby to have assumed the the rule that the expression of one thing risk thereby occasioned, although contin- 'excludes another applies. That, however,

If the language used were open to cou. struction, we are constrained to say that the construction put upon the act by the circuit court of appeals was altogether too narrow.

is a question of intention, and as there was to protect the lives and limbs of railwas special reason for requiring locomo- road employees by rendering it unnecestives to be equipped with power driving- sary for a man operating the couplers to wheel brakes, if it were also necessary go between the ends of the cars; and that that locomotives should be equipped with object would be defeated, not necessarily automatic couplers, and the word "car" by the use of automatic couplers of differwould cover locomotives, then the inten- ent kinds, but if those different kinds tion to limit the equipment of locomotives would not automatically couple with each to power driving-wheel brakes, because other. The point was that the railroad they were separately mentioned, could not companies should be compelled, respectivebe imputed. Now it was as necessary for ly, to adopt devices, whatever they were, the safety of employees in coupling and which would act so far uniformly as to uncoupling that locomotives should be eliminate the danger consequent on men equipped with automatic couplers as it going between the cars. was that freight and passenger and dining cars should be; perhaps more so, as Judge Thayer suggests, "since engines have occasion to make couplings more frequently." And manifestly the word "car" was used in its generic sense. There is nothing to indicate that any particular kind of car was meant. Tested by context, subjectmatter, and object, "any car" meant all kinds of cars running on the rails, including locomotives. And this view is supported by the dictionary definitions and by many judicial decisions, some of them having been rendered in construction of this act. Winkler v. Philadelphia & R. R. Co. 4 Penn. (Del.) 387, 53 Atl. 90; Fleming v. Southern R. Co. 131 N. C. 476, 42 S. E. 905; East St. Louis Connecting R. Co. v. O'Hara, 150 Ill. 580, 37 N. E. 917; Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262; Thomas v. Geor gia R. & Bkg. Co. 38 Ga. 222; New York v. Third Ave. R. Co. 117 N. Y. 404, 22 N. E. 755; Benson v. Chicago, St. P. M. & O. R. Co. 75 Minn. 163, 74 Am. St. Rep. 444, 77 N. W. 798.

This strictness was thought to be required because the common-law rule as to the assumption of risk was changed by the act, and because the act was penal.

The dogma as to the strict construction of statutes in derogation of the common law only amounts to the recognition of a presumption against an intention to change existing law; and as there is no doubt of that intention here, the extent of the application of the change demands at least no more rigorous construction than would be applied to penal laws. And, as Chief Justice Parker remarked, conceding that statutes in derogation of the common law are to be construed strictly, "They are also to be construed sensibly, and with a view to the object aimed at by the legislature." Gibson v. Jenney, 15 Mass. 205.

The primary object of the act was to promote the public welfare by securing the The result is that if the locomotive in safety of employees and travelers; and it question was not equipped with automatic was in that aspect remedial; while for couplers, the company failed to comply violations a penalty of $100, recoverable in with the provisions of the act. It appears, a civil action, was provided for, and in however, that this locomotive was in fact that aspect it was penal. But the design equipped with automatic couplers, as well to give relief was more dominant than to as the dining car; but that the couplers inflict punishment, and the act might well on each, which were of different types, be held to fall within the rule applicable would not couple with each other automat- to statutes to prevent fraud upon the revically, by impact, so as to render it unnec-enue, and for the collection of customs,essary for men to go between the cars to that rule not requiring absolute strictness couple and uncouple. of construction. Taylor v. United States, 3 How. 197, 11 L. ed. 559; United States v. Stowell, 133 U. S. 1, 12, 33 L. ed. 555, 558, 10 Sup. Ct. Rep. 244, and cases cited. And see Farmers' & M. Nat. Bank v. Dearing, 91 U. S. 29, 35, 23 L. ed. 196, 199; Gray v. Bennett, 3 Met. 529.

Nevertheless, the circuit court of appeals was of opinion that it would be an unwarrantable extension of the terms of the law to hold that where the couplers would couple automatically with couplers of their own kind, the couplers must so couple with couplers of different kinds, But we think that what the act plainly forbade was the use of cars which could not be coupled together automatically by impact, by means of the couplers actually used on the cars to be coupled. The object 25 S. C.-11.

Moreover, it is settled that "though penal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal as well as other statutes; and they are not to be construed so strictly as to defeat the ob

vious intention of the legislature." United | And its intention is found "in the lanStates v. Lacher, 134 U. S. 624, 33 L. ed. guage actually used, interpreted accord1080, 10 Sup. Ct. Rep. 625. In that case ing to its fair and obvious meaning." we cited and quoted from United States v. United States v. Harris, 177 U. S. 309, 44 Winn, 3 Sumn. 209, Fed. Cas. No. 16,740, L. ed. 782, 20 Sup. Ct. Rep. 609. in which Mr. Justice Story, referring to the rule that penal statutes are to be construed strictly, said:

The Senate report of the first session of the Fifty-second Congress (No. 1049) and the House report of the same session (No. 1678) set out the numerous and increasing casualties due to coupling, the demand for protection, and the necessity of automatic couplers, coupling interchangeably. The difficulties in the case were fully expounded and the result reached to require an automatic coupling by impact so as to renThe risk in coupling and uncoupling was der it unnecessary for men to go between the evil sought to be remedied, and that the cars; while no particular device or risk was to be obviated by the use of cou-type was adopted, the railroad companies plers actually coupling automatically. being left free to work out the details for True, no particular design was required, themselves, ample time being given for but, whatever the devices used, they were that purpose. The law gave five years, and to be effectively interchangeable. Con- that was enlarged, by the Interstate Comgress was not paltering in a double sense.' merce Commission, as authorized by law,