The opinion
I do not concur in the views expressed in the majority opinion prepared by the Presiding Judge, and deem it proper to state the reasons impelling my nonconcurrence.
The act of Congress approved February 17, 1911 (U.S. Comp. Stat. 1916, §§ 8630-8639), does not undertake to prescribe the type of boiler that shall be used on locomotives in moving interstate commerce, but provides that it shall be unlawful for common carriers to use "any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put," and provides for the appointment of inspectors to make inspection and determine whether or not the boiler and its appurtenances are in proper condition and safe to be used; nor does the act confer on the Interstate Commerce Commission any authority to extend the provisions of the act by rules or regulations adopted by it. The right of the carrier to determine what type of boiler shall be used, provided it is safe for use, is in no way impinged by the act.
The effect of the amendatory act approved March 4, 1915, which did not become effective until September 4, 1915, is to extend the provisions of the act of 1911 to embrace all parts of the locomotives, and confers upon the inspectors the same duties and powers as to all parts of the locomotive as was conferred by the original act with reference to the boiler and equipment. The act as amended does not undertake to grant authority to the Interstate Commerce Commission to extend the provisions of the act, so as to take away the right and duty of the carrier to select its locomotives and their equipment by the adoption of rules or otherwise. Under the provisions of the act of Congress, the carrier has the right to select and use any locomotive it may choose, provided it is safe for use and passes inspection as such.
The Act of the Alabama Legislature approved July 17, 1915 (Acts 1915, p. 257), occupies a different field, and takes away the right of the carrier to select headlights for its engines, except of a designated character and power, and in no way impinges on the right of inspection or the requirement that the equipment shall be safe for use. The act is subject to this reasonable construction, and it is the duty of the court to sustain it (Standard Oil Co. v. State, 178 Ala. 400 , 59 So. 667 ) ; and the mere fact that the act affects railroad engines in interstate traffic does not destroy it (Austin v. Tennessee, 179 U.S. 343 , 21 Sup. Ct. 132 , 45 L.Ed. 224 ; Sligh v. Kirkwood, 237 U.S. 52 , 35 Sup. Ct. 501 , 59 L.Ed. 835 ; Minn. Rate Case, 230 U.S. 352 , 35 Sup. Ct. 729 , 57 L.Ed. 1511 , 48 L.R.A. [N. S.] 1151, Ann. Cas. 1916A, 18). The legislation of the state not covering the same field as the federal legislation, its enactment by the state Legislature was a proper and legitimate exercise of the police power. Vandalia R. R. Co. v. Public Service Commission of Indiana, 242 U.S. 255 , 37 Sup. Ct. 93 , 61 L.Ed. 276 ; Sligh v. Kirkwood, supra; Price v. Illinois, 238 U.S. 451 , 35 Sup. Ct. 892 , 59 L.Ed. 1400 ; Erie R. R. Co. v. Williams, 233 U.S. 685 , 34 Sup. Ct. 761 , 58 L.Ed. 1155 , 51 L.R.A. (N.S.) 1097.
Manifestly, the act of Congress as last amended not impinging upon the right of the carrier to select its locomotives and their equipment, but merely requiring the use of safe locomotives, and even if it be conceded that the act confers upon the Interstate Commerce Commission the power to occupy that field, the act did not become effective until September 4, 1915, and the Commission did not act until December, 1916, long after the passage of the act of July 17, 1915, and the indictment and conviction of the defendant under that act. The mere granting of power to the Interstate Commerce Commission in no way affects the right of the state to legislate until that Commission occupies the field covered by the state legislation. Mo. P. Ry. Co. v. Larabee Flour Mills, 211 U.S. 612 , 29 Sup. Ct. 214 , 53 L.Ed. 352 .
At the time the act of July 17, 1915, was passed and approved, the act of Congress was not in force, and therefore there was no obstruction in the way of state legislation. The act of the Legislature was not void, and when the act of Congress became effective, conceding that the Interstate Commerce Commission had the power to prescribe headlights, the effect was merely to supersede or *Page 204
repeal the act of the Legislature as to further offenses, and in no way affected pending prosecutions for offenses committed prior to the adoption of the rules covering this field. Code 1907, § 7806.
Response to Question Certified from Court of Appeals.