The opinion
VAUGHT, District Judge
(dissenting).
The majority opinion fairly and fully states the issues in this case. It also reviews the authorities, both state and federal, passing upon kindred issues to those herein involved. But, as stated in the majority opinion, only two courts have passed upon the identical question here presented.
A three-judge court in the District of Arizona (Atchison, T. & S. F. Ry. Co. v. La Prade, 2 F.Supp. 855 ) held a similar statute, passed by the Legislature of Arizona, unconstitutional; and four years later, a three-judge court in the District of Nevada (Southern Pacific Co. v. Mashburn, 18 F.Supp. 393 ) held a similar statute, passed by the Legislature of Nevada, unconstitutional, following and approving the doctrine announced in Atchison, T. & S. F. Ry. Co. v. La Prade, supra.
These two important decisions of the three-judge courts are mentioned but are neither followed nor distinguished by the majority opinion. In the Arizona case the court carefully reviewed the authorities relied upon in the majority opinion but reached an entirely different conclusion.
The majority opinion' states that by a preponderance of the evidence presented in this case a train of more than seventy cars is more unsafe than trains of seventy cars or less.
I cannot agree with the conclusion of my learned associates. In my judgment, the preponderance of the evidence in this case supports the contention that long trains tend to add to the safety of operation and to the prevention of accidents, and that the conclusion reached in the majority opinion, that the Act in question is a safety measure, is not supported by the evidence.
Whether this is a safety measure, the majority opinion contends, is a matter for the Legislature to decide. If the Legislature decides that this is a safety measure, and the safety measure is in direct con.flict with the Constitution and laws of the United States, then the measure must fall notwithstanding it was determined to be a safety. measure by the state legislative body.
In Atchison, T. & S. F. Ry. Co. v. La Prade, supra [ 2 F.Supp. 859 ], the court said:
“Clearly, the Constitution has conferred upon Congress full and exclusive power to regulate commerce between the states, and any attempted enforcement of the statute of a state, passed under the guise of the police power which directly affects interstate commerce to such an extent as to amount to a regulation thereof, is void and will be enjoined. Hall v. De Cuir, 95 U.S. 485, 489 , 24 L.Ed. 547 , and other cases. * * *
“In the case of Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 , 47 S.Ct. 207, 210 , 71 L.Ed. 432 , a case involving a statute of Wisconsin, prescribing a cab curtain for locomotives, Mr. Justice Brandéis said:
“ ‘The federal and the state statutes are directed to the same subject — the equipment of locomotives. They operate upon the same object. It is suggested that the power delegated to the Commission has been exerted only in respect to minor changes or additions. But this, if true, is not of legal significance. It is also urged that, even if the Commission has power to prescribe an automatic firebox door and a cab curtain, it has not done so, and that it has made no other requirement inconsist *617 ent with the state legislation. This, also, if true, is without legal significance. The fact that the Commission has not seen fit to exercise its authority to the full extent conferred, has no bearing upon the construction of the act delegating the power. We hold that state legislation is precluded, because the Boiler Inspection Act [ 45 U.S.C.A. § 22 et seq.], as we construe it, was intended to occupy the field. The broad scope of the authority conferred upon the Commission leads to that conclusion. * * *
“ Tf the protection now afforded by the Commission’s rules is deemed inadequate, application for relief must be made to it. The Commission’s power is ample.’"
The majority opinion assumes that Congress has passed no act dealing with the subject of train lengths; that the Boiler Inspection Act, the Safety Appliance Act, and Section 26 of the Interstate Commerce Act do not cover the dangers and hazards of train operation; and that until Congress deals with this subject specifically, the states are free to adopt such regulations in the exercise of police power.
In Atchison, T. & S. F. Ry. Co. v. La Prade, supra, the court analyzed this proposition and said:
“We cannot agree to this proposition. The Interstate Commerce Act, section 1, subdivision 10, title 49 U.S.C.A., which deals with the subject of car service, provides as follows: ‘The term “car service’’ in this chapter shall include the use, control, supply, movement, distribution, exchange, interchange, and return of locomotives, cars, and other vehicles used in the transportation of property, including special types of equipment, and the supply of trains, by any carrier by railroad subject to this chapter.’
“Subdivision 14 of said section 1, provides: ‘The commission may, after hearing, on a complaint or upon its own initiative without complaint, establish reasonable rules, regulations, and practices with respect to car service by carriers by railroad subject to this chapter, including the compensation to be paid for the use of any locomotive, car, or other vehicle not owned by the carrier using it, and the penalties or other sanctions for nonobservance of such rules, regulations or practices.’
“The power conferred by Congress upon the Interstate Commerce Commission to regulate the supply of trains must necessarily include authority to prescribe the number of interstate trains to be operated by the carrier. The Arizona law limiting the number of cars contained in a freight or passenger train in effect prescribes the number of trains to be operated by the interstate carrier, by increasing the number of trains after interstate commerce enters within the state. It is therefore in conflict with and attempts to occupy the same field of regulation delegated to the Interstate Commerce Commission by the car service act.”
In Savage v. Jones, 225 U.S. 501 , 32 S.Ct. 715, 722 , 56 L.Ed. 1182 ; the case of Hennington v. Georgia, 163 U.S. 299 , 16 S.Ct. 1086 , 41 L.Ed. 166 , was cited and considered, and the court said: “The state cannot, under cover of exerting its police powers, undertake what amounts essentially to a regulation of interstate commerce, or impose a direct burden upon that commerce.”
I am so convinced that the reasoning and conclusions in the Arizona and Nevada cases are sound and that they should be followed by this court, that it is my judgment the Oklahoma Act should be held unconstitutional and a temporary injunction should issue.
I most respectfully dissent.