We quote the Pennsylvania statute of April 4, 1868, upon which the case turns: 'Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania, in General Assembly met: It is hereby enacted by the authority of the same that when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee, provided that this section shall not apply to passengers.'
As the application of the statute, if valid, presents no Federal question, we are unconcerned with that matter, although it may be observed in passing that it is conceded in the argument at bar that under the settled construction given to the statute by the supreme court of Pennsylvania the plaintiff, as a railway postal clerk, was not a passenger, and had no greater rights in the event of being injured in the course of his employment than would have had an employee of the railroad company.
Was the application of the statute thus construed to a railway postal clerk of the United States in conflict with the power of Congress to establish postoffices and post roads?
In Price v. Pennsylvania R. Co. 113 U.S. 221, 28 L. ed. 981, 5 Sup. Ct. Rep. 427, this question was in effect foreclosed against the plaintiff in error. That case was brought to this court from a judgment of the supreme court of Pennsylvania (96 Pa. 258), holding that a railway postal clerk was not a passenger within the meaning of the Pennsylvania act, and hence had no right to recover for injuries suffered by him in consequence of the negligence of an employee of the company. The Federal ground there relied upon was substantially the one here asserted; that is, the power of the government of the United States to establish postoffices and post roads, and the effect of the legislation of Congress and the act of the Postmaster General in appointing mail clerks thereunder. After fully considering the subject the case was dismissed because no substantial Federal ground was involved, the court saying (113 U.S. 221, 28 L. ed. 981, 5 Sup. Ct. Rep. 428):
'The person thus to be carried with the mail matter, without extra charge, is no more a passenger because he is in charge of the mail, nor because no other compensation is made for his transportation, than if he had no such charge; nor does the fact that he is in the employment of the United States, and that defendant is bound, by contract with the government, to carry him, affect the question. It would be just the same if the company had contracted with any other person who had charge of freight on the train to carry him without additional compensation. The statutes of the United States which authorize this employment and direct this service do not, therefore, make the person so engaged a passenger, or deprive him of that character, in construing the Pennsylvania statute. Nor does it give to persons so employed and right, as against the railroad company, which would not belong to any other person in a similar employment, by others than the United States.'
This brings us to the second contention,-the the repugnancy of the Pennsylvania statute to the commerce clause of the Constitution. It is apparent from the decision in the Price Case, just previously referred to, that in deciding that question we must determine the application of the statute to the plaintiff in error, wholly irrespective of the fact that at the time he was injured he was a railway postal clerk. In other words, the validity or invalidity of the statute is to be adjudged precisely as if the plaintiff was, at the time of the injury, serving for hire in the employment of a private individual or corporation.