The opinion
CARTER, J.
I dissent.
The majority opinion holds that employees of the state engaged in the operation of the State Belt Railroad, a state operated carrier engaged in interstate commerce, do not have the protection afforded by federal Railway Labor Act. ( 45 U.S.C.A. §§ 151-152 .) Under that act working conditions and rates of pay are fixed by a collective bargaining agreement between the employer and the union representing the employees. The majority holds that it was not intended by Congress to include the state as a carrier-employer; that the employees are subject to the state civil service laws, and that the Board of Harbor Commissioners are authorized to fix the salary of such employees with the approval of the Director of Finance. That result is reached on the following bases: (1) The rule of statutory construction that a statute does not apply to the government unless it is named; (2) The rates *423 of pay and working conditions of public employees are traditionally fixed by statute and administrative regulation and must be so established; (3) Congress has “consistently” excluded the state from labor laws; (4) The history of the act. None of those grounds is valid and the conclusion is squarely contrary to the previous determinations on the subject.
In United States v. State of California, 297 U.S. 175 [ 56 S.Ct. 421 , 80 L.Ed. 567 ], the same Belt Bailroad was involved and the court was concerned with the federal Safety Appliance Act. ( 45 U.S.C.A. § 1 , et seq.) That act has to do with standards of safety in train equipment. The particular problem presented was whether California was subject to the penal provision of the act for failing to comply with the safety standard. The court held that it was, and in so holding, stated principles which make it a binding precedent in the instant case. It found that the Belt Line is engaged in interstate commerce. A unanimous court said: “The state urges that it is not subject to the federal Safety Appliance Act ... it is said that as the state is operating the railroad without profit, for the purpose of facilitating the commerce of the port, and is using the net proceeds of operation for harbor improvement, ... it is engaged in performing a public function in its sovereign capacity and for that reason cannot constitutionally be subjected to the provisions of the federal Act. In any case it is argued that the statute is not to be construed as applying to the state acting in that capacity.
“. . . The only question we need consider is whether the exercise of that power, in whatever capacity, must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. . . .
“California, by engaging in interstate commerce by rail, has subjected itself to the commerce power, and is liable for a violation of the Safety Appliance Act, as áre other carriers, unless the statute is to be deemed inapplicable to state-owned railroads because it does not specifically mention them. The federal Safety Appliance Act is remedial, to protect employees and the public from injury because of defective railway appliances, . . . and to safeguard interstate commerce itself from obstruction and injury due to defective appliances upon locomotives and cars used on the highways of interstate com *424 merce, even though their individual use is wholly intrastate. . . .
“In Ohio v. Helvering, supra, [ 292 U.S. 360 ( 54 S.Ct. 725 , 78 L.Ed. 1307 )], it was held that a state, upon engaging in the business, became subject to a federal statute imposing a tax on those dealing in intoxicating liquors, although states were not specifically mentioned in the statute. The same conclusion was reached in South Carolina v. United States, supra [ 199 U.S. 437 ( 26 S.Ct. 110 , 50 L.Ed. 261 , 4 Ann.Cas. 739)]; and see Helvering v. Powers, supra, [ 293 U.S. 214 ( 55 S.Ct. 171 , 79 L.Ed. 291 )]. Similarly the Interstate Commerce Commission has regarded this and other state-owned interstate rail carriers as subject to its jurisdiction, although the Interstate Commerce Act does not in terms apply to state-owned rail carriers. . . .
“Respondent invokes the canon of construction that a sovereign is presumptively not intended to be bound by its own statute unless named in it, . . . The presumption is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated. ... We can perceive no reason for extending it so as to exempt a business carried on by a state from the otherwise applicable provisions of an act of Congress, all-embracing in scope and national in its purpose, which is as capable of being obstructed by state as by individual action. Language and- objectives so plain are not to be thwarted by resort to a rule of construction whose purpose is but to resolve doubts, and whose application in the circumstances would be highly artificial. It was disregarded in Ohio v. Helvering, supra, and South Carolina v. United States, supra. See Heiner v. Colonial Trust Co., 275 U.S. 232, 234, 235 [ 48 S.Ct. 65 , 72 L.Ed. 256 ].” (Italics added.)
The foregoing is precisely pertinent in the instant case. The purpose of the Railway Labor Act, like the Safety Appliance Act, is to safeguard commerce' from obstruction. (45 U.S.C.A. $ 151a; Slocum v. Delaware L. & W. R. Co., 339 U.S. 239 [ 70 S.Ct. 577 , 94 L.Ed. 795 ].) The purpose being the same the application of the acts should be the same. To achieve that purpose Congress has provided means of assuring peaceable labor relations which are clearly applicable when the state is a carrier. It has declared the policy that the purpose may be attained by collective bargaining and the *425 mediation board rather than the State Personnel Board. If by federal mandate the state must keep its inanimate equipment safe, it must also deal with its employees according to the manner set forth in the Labor Act — a federal mandate.
It has been held that the state is subject to the federal Carriers’ Taxing Act in operating the Belt Line, which act is for the purpose of raising revenue to pay for retirement of railroad employees; that the federal statutory right to receive retirement pay is binding upon the state. In State of California v. Anglim, 129 F.2d 455 , that issue was presented. There is no possible basis to distinguish that case from the one at bar and the majority opinion makes no attempt to do so. If payment of retirement to state employees of a state carrier is controlled by the federal law although the state is not named in the statute, certainly federal statutory provisions for collective bargaining which embrace wages and working conditions are binding on the state. Retirement or pension payments have always been considered as deferred compensation or wages. Moreover, under the majority holding an anomalous situation is created. The payment of wages before retirement would be controlled by state law while subsequent wages (pension payments) would not. The analogy between the cases compels the same result. Hence the majority opinion violates the fundamental rule that a state court is bound by the construction of a federal statute by a federal court. (Stoll v. Gottlieb, 305 U.S. 165 [ 59 S.Ct. 134 , 83 L.Ed. 104 ]._
_ In discussing a federal statute requiring consent of Congress for the construction of a dam on navigable streams, the court said in United States v. Arizona, 295 U.S. 174, 184 [ 55 S.Ct. 666 , 79 L.Ed. 1371 ]: “These provisions unmistakably disclose definite intention on the part of Congress effectively to safeguard rivers and other navigable waters against the unauthorized erection therein of dams or other structures for any purpose whatsoever. The plaintiff maintains that the restrictions so imposed apply only to work undertaken by private parties. But no such intention is expressed, and we are of opinion that none is implied. The measures adopted for the enforcement of the prescribed rule are in general terms and purport to be applicable to all. No valid reason has been or can be suggested why they should apply to private persons and not to federal and state officers.” (Italics added.)
In State of California v. United States, 320 U.S. 577 [ 64 *426 S.Ct. 352 , 88 L.Ed. 322 ], the court held that the United States Maritime Commission could regulate the rates of the Oakland city harbor, and in answer to the claim that the Congressional Act did not apply to the city, stated that the issue was no longer open at this late date, citing United States v. State of California, supra, 297 U.S. 175 . Certainly what the city shall charge is as much a matter peculiarly within its power as the relations with its employees.
It has been held that the Federal Employers’ Liability Act which provides for the recovery of damages by railroad employees for injuries suffered in the course of their employment, applies to the Belt Line here involved. Maurice v. State of California, 43 Cal.App.2d 270 [ 110 P.2d 706 ].) No attempt is made to distinguish that case and it cannot be done. The act in question deals with the rights and duties as between employer and employee the same as the Railway Labor Act.
Finally, the identical question here presented has been decided. In National Council, etc. Union v. Sealy, 56 F.Supp. 720 , the court dealt with whether patrolmen, hired by the city to patrol the harbor where the city operated a carrier, were subject to the Railway Labor Act. The court held they were not because they were not employees of the city as a carrier, but said, citing the cases heretofore discussed: “Most of the cases cited by Plaintiffs throw some light on the question of coverage, but are not controlling. United States v. State of California, 297 U.S. 175 , 56 S.Ct. 421 , 80 L.Ed. 567 ; State of California v. Latimer, 305 U.S. 257 , 59 S.Ct. 166 , 83 L.Ed. 159 , and State of California v. Anglim, 9 Cir., 129 F.2d 455 of course, settle it that a railroad, etc., owned by the State or as here by a City which is an agency of the State is, under certain circumstances and perhaps generally speaking, within the coverage of the [Railway Labor] Act.” (Italics added.) That case was affirmed on appeal ( 152 F.2d 500 ), the court not discussing the instant point but deciding that whether the patrolmen were under the act must be decided by the Interstate Commerce Commission. It should be noted that there had been no determination here by that commission.
As above seen, we have three unqualified instances in which federal statutes dealing with the relationship between the employer and employee in the railroad field have been held to be applicable to the state with reference to the same Belt Line Railroad. Yet, in face of this wealth of authority, *427 the majority advances nebulous and negative grounds for concluding that the Railway Labor Act, which deals with the same relationship in the same field does not apply. No effort is made to distinguish those cases.
The first ground advanced is that a statute does not apply to the government unless it so states. That proposition as presently involved was disposed of in United States v. State of California, supra, Maurice v. State of California, supra, and State of California v. Anglim, supra. The act itself (Railway Labor Act) is comprehensive and inclusive. It must be liberally construed (Nashville C. & St. L. Ry. v. Railway Employees’ Dept. of A. F. of L., 93 F.2d 340 , cert. den., 303 U.S. 649 [ 58 S.Ct. 746 , 82 L.Ed. 1110 ]), and it has been held that it applies to the receiver of a railroad (Burke v. Morphy, 109 F.2d 572 ), although the receiver is subject to the control of the appointing court.
The second argument of the majority that rates of pay and working conditions of public employees are traditionally a matter of state statutory and administrative regulation does not shed any light on the subject. That argument applies with equal force to rights arising under provisions for retirement, for injuries in the course of employment, and the safety requirements. They are no less traditionally regulated, as to public employees, by statute and administrative regulation. Nevertheless the cases hold, as above shown, that the federal railroad laws control because of their effect upon interstate commerce.
That Congress has “consistently” excluded the state from labor laws — the third ground — is equally untenable. If that is true, then it supports my position, for Congress thought it must use language excluding the state when it desired to do so, and it did. But it did not employ such language in the Railway Labor Act and in the field of employer-employee relations in the railroad industry, and the courts have consistently held that the federal legislation includes the state.
In speaking of the history of the act — the fourth ground— the majority approach is wholly negative. It is said that it gives no indication that the state as a carrier was to be included. But it gives no indication to the contrary. True, the act probably arose out of cooperation between the unions and private carriers, but no doubt the other federal railroad laws were similarly initiated.
The majority opinion sets forth the additional ground for invalidating the contract that it was not approved by the *428 Department of Finance of the State. There has been a substantial, although informal, approval by the state of the contract. It has been in force since 1942, and wages have been paid according to the rates provided for therein since that time. The Department of Finance knew of such payments and gave implicit approval of them, for it “may require from all such agencies of the State, financial and statistical reports, duly verified, covering the period of each fiscal year.” (Gov. Code, § 13291.) And “may examine all records, files, documents, accounts and all financial affairs of every agency mentioned in Section 13290.” (Gov. Code, § 13293.) And it “shall examine and expert the books of the several State agencies, at least once in each year, and as often as the director ■deems necessary.” (Gov. Code, §13294.) Hence it has examined the books and records of the Harbor Board, which would include the collective bargaining contract and the payments to employees and has found them proper.
It is apparent that the last mentioned issue should not be so lightly brushed aside. The majority holds that the Harbor Board has the right to fix the pay of the employees subject to the approval of the Department of Finance and also that such employees are under civil service. If they are under civil service it is very doubtful that the Legislature may provide that their rate of pay be fixed by the Harbor Board or be subject to the approval of the Department of Finance. The rates of' pay certainly relate to civil service for the Personnel Board is empowered by statute to fix the rate of pay. (Gov. Code, §§ 18500(1) (6), 18850 et seq.) The Constitution vests civil service matters exclusively in the State Personnel Board. “Said board shall administer and enforce, and is vested with all of the powers, duties, purposes, functions, and jurisdiction which are now or hereafter may be vested in any other State officer or agency under, Chapter 590 of the California Statutes of 1913 as amended or any and all other laws relating to the State civil service as said laws may now exist or may hereafter be enacted, amended or repealed by the Legislature.” (Cal. Const., art. XXIV, § 3(a).)
Irreconcilable conflicts in state and federal law will necessarily result from the holding of the majority in this case. Under its holding, State Belt Railroad employees are under civil service, but their salary must be fixed by the Harbor Board with the approval of the Department of Finance. This holding is in conflict with both the Constitution of California and the Government Code (see Cal. Const., art XXIV, § 3(a) *429 and Gov. Code, § 20000 et seq.) which provide that the qualifications, rates of pay, dismissals and the like are all within the jurisdiction of the State Personnel Board, and that there is a state retirement system which embraces all civil service employees. All such employees automatically become members of the retirement system (Gov. Code, § 20303), and, therefore, must contribute to it (id. 20600, et seq.). Hence, if, as is held by the majority, the instant employees are civil service employees, they must be members of the state retirement system and contribute to it, but the majority opinion concedes that they are subject to the federal Railroad Employees’ Retirement Act (see State of California v. Anglim, 129 F.2d 455 ). There is no basis for splitting the complete system of employer-employee relations between the state and its employees into parts, some of which are controlled by state law and others by federal law. The majority holding leads to absurd results. This would be avoided by a holding that all of the federal statutes relating to railroad employer-employee relations apply to State Belt Railroad employees. The trial court and the District Court of Appeal, so held in this case (State of California v. Brotherhood of Railroad Trainmen, (Cal.App.) 222 P.2d 27 ). That holding is eminently sound.
I would, therefore, affirm the judgment.
The opinion was modified to read as above printed and respondents’ petition for a rehearing was denied July 19, 1951. Carter, J., voted for a rehearing.