Statement Opposing Jurisdiction — Terminal Railroad Assn. of St. Louis v. Trainmen

°

FILE Copy

SUPREME COURT OF THE UN

nt OCTOBER TERM, 1942

No. 218

TERMINAL RAILROAD ASSOCLATION OF

ST. LOUIS,

Appellant,

rs.

BROTHERHOOD OF RAILROAD TRAINMEN, RICH.

ARD ABRAM, Cwarmmaw axe Srare Leomtative Rreone.

sentative, axp ILLINOIS COMMERCE COMMISSION.

,

APPEAL FROM THE SUPREME COUKT OF THE STATE OF LLLANON,

Ginonae F. Banner,

Attorney General of Lllinois;

A. A. Scuwanzracn,

J J Ave E. Sve,

Counsel for Appellees,

Avaerr E. Havuete, ;

Assistant Attorney Gen-

eral of Illinois,

Of Counsel

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INDEX.

Supsect INDEX.

Statement opposing jurisdiction................ cis

Corrections in and additions to appellant's state- ~

EE ay ere er ee eee

Preliminary statement................. Pear

‘Cortections in appellant’s statement......_..

Additions to appellant’s statement..........

Statement of the grounds — which it is con-

tended by appellees that federal questions

involved are not substantial in character.......

‘The order of the Illinois Commerce Commis-

sion was a-reasonable police regulation for

the protection of the health, lives and safety

of persons within the confines of the State

of Illinois, and its effect upon interstate —

commerce was only incidental............

“The order of the Iinois Cominerce Commis-*’

sion is not repugnant.to or in conflict with

any action taken by the Federal Congress. .

‘The expense to which appellant will be put in

order to comply with the Commission’s

order is not so exorbitant, when compared

with the obvious benefits to accrue there-

from, as to deprive appellant of its property

without due process of law...............

Conclusion and motion to dismiss or affirm... ....

TasLe or Cases Crrep.

Atlantic Coaal Line R. Co. v. Georgia, 234 U. 8. 230. .

. Atlantic Coast Line R. Co. v. Wharton, 207 U.S. 328...

California v. Thompson, 313 U. 8. 109, 85'L. Ed. 793.

Carter y. Carter Coal Co,, 298 U. 8. 80 L. Ed. 1161.

Chicago, R. 1. & P. Ry. v. Arkansas, 86 Ark. 412, 111

. 17,28

31

20

ca

Sg Ey ae nie 15, 28, 33

icholz v. Public Service Commission of Missouri, 306

8S Sewer ee ge an: Dt > aa bork ae ECHR be

ii . | IN DEX

lage

Duekworth v. Arkansas, 314 U.S. 390, 62 4 Ct. 311. 22

Kelly v. Washington, 302 U. S.. i haiti lie aati Ca we dines os 42

Missouri Pacific Railway ' v. Kansas, 216 U. Ss. 262, 54

SEES EY TE rine Wet, 47 Y Senn a 20

Missouri Pacific Railroad v. Mertued, 283 U. S. 249, 70

a oT Oe ens ph ak eae beg 33

M issouri-Kansas-Tezas Railroad v. Williamson, 36 Fed.

oO PEARS eee Ae ELT SP PEL EON RRL EE 37

New York, N. Ht. & H. RCo . New Yor, 165 U.S. 628. 29

Northwestern Bell Telephone Co. v. Nebraska Railroad ,

Commnitoton, BOT TB. GIL... 5. oc ccc ccicccvccesse 41

Panhandle Eastern Pipe Line Co. v. ‘State H ee Com-

mission, 294.1% S.613....... 46

Penn. R. R. Co. v. Public Service Comm., 250 U.S 38

People ez rel. Cantrell v. St. Louis, A. & TH. R. Co.

P|, ART ae a tn ay Se rane ee 30

Railroad Commissioner v. Southern Pacific Co., 264 U.S ;

- 331, 68 L. Ed. re ig es sigh sae 8 ore .. 39:

South ‘Covington & Cincinnati Ry. Co. v. ie gies 235 .

BR 8 Rae en 58 gh OE ee Ne CD Cer _

St. Louis, I. M: & S. Ry. Co. v. Astentes, 30 U.S

, 518, affirming 114 Ark. 486, 170 8S. W. 580......... 32

Terminal Railroad Association of St. Louis v. Brother- 2

hood of Railroad Trainmen, et al., 379 Ill. 412....... 12

Welch. v. New Hampshire, 306 U.S. 79.......-....... 41, 44

Whitney v. Johnson, 37 F. Supp. 65, 314 U. S. 574... : 20 ~

, STATUTES Crrep. 4

Boiler Inspection Act........... fe ge ae pti AP Oe 38

Constitution of the United States, 14th Pixdae nae .33, 37, 45

Interstate Commerce Act...................... . -B3, 34, 41

Rules of the Supreme Court of the United States:

gaat Be SORE ne tek ukiv al Pheweeuer vce ot ; 2

Railway Labor Act.:............... auwehe at Sseoy Bay 33, 34

Safety Appliance Act (Power Brake Prov ision) pee San - 38

Es hia Ho ce abs iv ikeiseneciveccees - 4

»

IN THE

SUPREME GOURT OF THE UN ITED STATES

OCTOBER TERM, 1942

No. 218

TERMINAL RAILROAD ASSOCIATION OF

‘ ST. LOUIS,

/ mos - Appellant,

j an

BROTHERHOOD OF RAILROAD TRAINMEN, RICH-

ARD ABRAM, Cuairnman anv State Leaistative Repre-

SENTATIVE, AND ILLINOIS COMMERCE COMMISSION,

bss caemcas

APPEAL FROM THE SUPREME COURT OF THE STATE OF ILLINOIS.

APPELLEES’ STATEMENT AS T) JURISDICTION

_ AND MOTION TO DISMISS OR AFFIRM.

While the above entitled: cause is admittedly one of

which this Court, under the Stafutes, has technical- juris-

diction on a direct appeal from the Supreme Court of the

State of Illinois, these appellees assert that the unsub-

stantial character of the grounds upon which appellant ©

_ relies is so apparent as to warrant the Court in summarily

ae 53 |

of the appeal at this stage of the proceedings

upon|a motion to dismiss, or affirm under the provisions of

Ruled 7 7 and 12 of this Court as recently amended.

In view of the appellees’ said position, this statement is

respedtfully submitted, and a-motion-to dismiss | or affirin ;

déd herein. :

is inel

Corrections in and Additions to Appellant’ s Statement of

the Facts. ~~

PRELIMINARY STATEMENT.

The appellant’s preliminary statements respecting the |

various procedural steps taken before the Illinois Com- 7

merece Commission and in the various Ilinois courts are

correct and adequate, as are also its statements respecting

the technical jurisdiction of this Court, the variows Hlinois

statutes involved, the date of the various orders and the

taking of this appeal, and the timely and adequate presenta- .

tion of the various Federal questions. involv ed in’ the

Ilinois courts and their rulings thereupon.

With respect to the appellant’s statement as to the

facts, however, many of appellant’s statements are. in-

accurate and w holly without support in the record, and ap-

_ fellant has ofnitted many facts which are-not only favorable

to these #ppellees but, we contend, are such as to sustain

- the ordef from which this appeal is prosecuted.

CORRECTIONS IN Arraizant’s STATEMENT.

"Beginning at the top “of page 6 of. appellant’ s juris-

dictional statement, appellant has considerable to say

to the effect that it is impossible to: cut off or couple a

caboose on the bridges i in the iniddle of the riv er, thatas a

practical proposition the necessary effect of the Illinois’

(Commerce Commission’s order is to require the appellant .

to carry its cabooses across the Mississippi River into

Missouri on West-bound cuts and to’ put cabooses on its

trains in Missouri’ on the’ Kast-bound cuts in-order to

comply with said order, and that the Supreme Court of

Illinois has found the facts .to be as so stated. by the

appellant. From this counset concludes that the order in

question not only directly impedes, hinders and delays inter-

state commerce, but requires compliance in the State of

Missouri where the Illinois Commission admittedly has no

power, jurisdiction or authority.

As stated by appellant, this.is inaccurate, insufficient,

inadequate and rather misleading.

Counsel fails, for example, to point out that the evidence -

shows that on the’ approach to the Eads Bridge on the

Illinois side there are two cross ov ers (Tr. 2-141), that on

the ‘approach to the Merchants Bridge on the Illinois side

there is one éross-over (Tr. 2-28), that it would be quite

possible to add other cross overs on these ‘bridges in the

State of Illinois (Tr. 2-29), and that before the tracks enter

‘the tunnel on the Missouri side there is an interval of some:

500 feet (Tr. 2-108).

While it may well be that the cheape: st and therefore

most practical way to comply with the order in question

would be to leave the caboose attached to-# train after

it had left Illinois going West, and to attach a caboose

on an East bound train before leaving Missouri, it does -

not follow’ that the necessary effect of said order is to re-

"quite compliance in the State of Missouri. :

At pages 6-7. of appellant’s statement, ‘counsel states

that a

Sey y furnishing of cabooses has always beet con-

sidered a working condition and has been dealt. with

“as such by appellants and its switchmen, and cabooses .

have always been and. are being furnished by reason

‘.of written contracts between the Brotherhoods and ap-

pellant (=e. 2- 114, scars it sig

4

‘This.is inaccurate.. The record in no wise sustains coun-

sel’s. statement ‘that the furnishing of cabooses has been

considered. a ‘‘working condition’’ and the balance of his.

“statement is misleading in that it fails to make it clear that

cabooses were furnished only on teas runs and at certain

times. of the season.

( ‘ounsel’s statements, at pages 7-8 of the stateenent,

respecting appellant’s evideuce as to the delays and costs

to result from the order requiring cabooses fails to point

out that the testimony in quéstion -was the purest kind of

hearsay,.and- was, in a large measure, based on information.

acquired by the witness second hand from various railroad

officials. For example, appellant’s witness testified. (Tr. —

2-198) :

_ ** When I say there is a delay of one hour in the Penn-

sylvania yard, I do not know that of my own mae?

-edge. I am.taking their word for it.”’

His estimate of a 40 minute delay and $10.00 cost per run

~ was likewise without factual basis in the record, and his

éstimate of a $400,000 outlay for the sec year was of the

_ same incompetent character. ;

At page 8 of the statement, counsel briefly summarizes

the testimony of the Commission’s expert witness and says

that his testimony was that

‘‘the initial cost of new sakiiah would be $44,000 p per:

year and the extra annual expense in wages about — -

$62,000, but this estimate did not t inciade anything ex-

cept wages (Tr. 2-123).?7 ~~~ |

This i is neither fair nor accurate. In the first place,. his

estimate for the cost of cabooses wag not $44,000 per year.

It was a total investment of $44,000 in new cabooses, In

the second place, this estimate was based on 36 new cabooses

at a cost of $1,233.69 each (Tr. 2-266) whichis the cost esti-

-

mated not by the appellee but by the appellant itself (Tr,

2-241). In the third place, the annual extra expense in

wages for those handling the added cabooses was estimated

at $27,777.22, not $62,000.

Counsel also fails vo point out that ines estimates giv en

by the Commission's expert were not hearsay, but were the

. result of ten er fifteen days spent by the witness in appel-

lant’s yards riding the various cuts in company with rail-

- road officials. (Tr. 2- 122-125).

Furthermore, counsel’s statement that the «delay woald |

average 1d minutes per run’’ is not correct. The testimony

was that the ‘handling time’? would be 11 minutes per run,

which would actually result in perhaps only 3 minutes ‘‘de-

‘lay’? per run (Tr. 2-126).

Counsel’s next statement that.

“The Supreme Court of Illinois found that the delay

on each run would be from eleven to forty minutes (Tr.

13). ”

- is likewise not correct. The nearest approach to such a

statement in the opinion is to be found at page 412 of 379

Illinois, where the cqurt says: »

* «The evidence before the commission: as to the

‘amount of time consumed was in conflict, ranging from

. eleven minutes to forty minutes per movement, although

appellant {now appellee) concedes that some time is _

required to add a caboose to these cuts of cars.’’

_ Appellant’s next statement to the effect that the rear

. switchman ‘would be able’ to use the caboose only from one-

sixth to one-eighth of his working period, that during the

balance of his time he would be exposed to the same or addi-

tional hazards, and that-the Supreme Court in its opinion

so found is not correct and is not supported by- the record.

_ With respect to the facts sustaining the Commission's

order as a reasonable and proper ‘*police power’? measure

6 ‘

to protect the lives and limbs of the trainmen and ‘passen-

gers, the statement is completely. silent. In our opinion this

is unfair and requires us to add such facts so as to have the |

true record before this Court.

Apprtions To AppgELLant’s: STATEMENT.

The Brotherhood of Railroad Trainmen is an organiza-

' tion representing trainmen and switchmen who are em-

~ ployed by the’Terminal Railroad Association of St. Louis,

_ Respondent (Tr. 2-25, 84). The said Respondent is an asso-

ciation which performs terminal services in the switching

district of East St. Louis, Illinois, for and on behalf of its

proprietary lines and other railroad companies desiring tse

of its facilities (Tr. 2-211). The corporate control. of the

said-Terminal Railroad Association is vested equally in

each of the following railroad companies: The Alton Rail- .

road Company; Baltimore & Ohio Southwestern Railroad

Co.; Chicago & Eastern Illinois Railway ; Chicago, Burling-

ton & Quincey Railroad Ca, Chicago, Rock Island & Pacific

Railroad Co.; Cleveland, Cincinnati, Chicago & St. Louis -

Railway Co.; Illinois Central Railroad Co.; Louisville &

reas Ne Railroad Co.; Misseuri, Kansas, Texas Railroad

.; Missouri, Pacific Railroad Co.; Missouri Pacific Acct. -

ney ‘Raul Iron Mountain & Southern Railroad Co.; Pitts-

. burgh, Cincinnati; Chicago & St. Louis Railroad-Co.; St.

‘Louis-San Francisco Railway Co.;. St. Louis Southwestern

-Railway Co.; Southern Railway Co.; Wabash Railway Co.

Sw itchmen are assigned to particular crews. The switch-

men make and break up trains in yards, switch industriés,

make deliveries from connections to the Terminal Railroad

Association from through lines and make transfer runs from

and to various yards-of the Terminal Railroad Association

and perforin that work in the yards or industries, required |

to make 7° trains and couple cars together. They see Gat

the air brakes are coupled, and in order on the train,. and

when a train leaves the yard for a destination, the switch-

men take their proper positions on the train with the rear.

man taking his position on the rear car of the train (Tr.

2-27). The rear man is required to ride the rear coupler

of the. car in the event of overhead and side structures riot

clearing the man on the top or side of the-car (Tr. 2-27).

He lines all switches back in a proper position when they -

have been used by his train and, in case of reverse move-

ment, when a train is shoved, is required to protect street

‘and highway crossings to keep the- public from being killed

or injured. When shoving a trai near-by or on private ;

crossings, he is required to be on top of ihe reat car, unless

' prevented by overhead or side structures that do not clear .

the switchman (Tr. 2-27, 40). :

The length of the trains in operation handled by train-

men on one trip vary from one toa hundred cars (Tr. 2-120,

139, 140,; 141, 144).

A caboose is a railroad cat furnished for “the housing.

of train crews and equipped for their safety. They are

needed to avoid side and overhead structures which en-

. danger the life and limb of the switchmen and to provide

* for them a safer place in case of derailment of the train

- or sudden jerking or sudden stops which would be liable

to throw switchmen from the top, side or end of the car

(Tr. 2-29). In case a train breaks in.two, it is very danger- |

ous for a man to. be on the rear end of the-train; as it

is easy to be knocked off the top or end by a sudden jerk

or stop (Tr. 2-29). It also protects the switchmen from

the inclement weather in both winter and summer. Dur-

ing the winter months the hand-holds, drawbars and sill |

steps of cars are often covered with ice, making it diffi-

cult for the switchmen to get on top of a car and making *

it very easy for said switchmen to be jerked- or bumped

° 8 .

off (Tr. 2-29, 30, 56, 84). He could discharge his duties

from the interior of the caboose or from the steps outside

- the caboose (Tr. 2-84).

A caboose also* provides a ‘place for the awitchenesi to

keep and carry their necessavy flagging equipment, cloth-

ing such as rain clothes, coats, ete., and to carry their neces-

_ Sry first aid equipment and lunches and permit the lighting

of red lanterns -during inclement weather. It is also used

to do such clerical work, as is necessary when thie train is

en route (Tr. 2.29, 57). Switchmen can observe their train

better while it is en routé and watch the side of their train

_ from.a caboose. It is hazardous for a switchman on ‘top

of a car or on the end of a car to observe the side of

his train (Tr. 2-29). A caboose is properly equipped

with a whistle and a conductor’ s valve which permits the

switchman on the rear “end of the train to have practically

the same control of the train that the engineer has with

reference to stopping or sounding a warning signal on

approaching a highway crossing, etc. (Tr. 2-30, 40), He can

‘perform all the necessary work better from the caboose

(Tr. 2-30). .Where no caboose is pfovided, switchmen are

required to carry their lunch in their ag or tie it, on

if some suitable place can be found (Tr. 2-40). :

A -switchman can perform the necessary duties better

from a caboose in observing the running condition of his

train, and in flagging and in getting off and on the réar

end of his train, in moving motion, also in shoving or

back-up movements of trains (Tr. 399).

It is admitted that no cabooses or “shelter cabs are pro-

vided for any of the crews working out of certain yards

herein involved (Tr. 2-227). Cabooses are furnished part

of the year on others and furnished -in some instances ail

the year round (Tr. 2-242).

There are various transfer runs within. the confines of

the Stgte of Illinois which go onto the Eads and Mer-

chants Bridges which span the Mississippi River (Tr. 2-251),

Most of- the overhead and side clearances: on thesé two

bridges are insufficient to clear a switchman (Tr. 2-28, 253,

- 263). .

Cabooses are not furnished on meet of the tran fer runs

out of Madison Yard or CD Yard in Illinois movidg onto”

‘these two bridges. Cabooses are furnished upon certain

transfer runs originating in-the Wiggins No. 2 Yard, Mli-

nois, and moving onto the Merchants Bridge but only be

tween October 15th and May 1 (Tr. 2-251).

At many points there exist numerous insufficient clear-

‘ances for a switchman to ride the fop of the rear car (Tr.

2-43, 46, 47, 49, 53, 72); and the rules of the Terminal

. Railroad Axsociation expressly provide .that -the switel-

men must ride the top of: the rear car (Tr. 2-43); although

another rule provides that ‘‘riding on the inside of loaded:

open top,cars is prohibited” (Tr. 2-196, 197). Some of

_ these clearances are such that a switchman cannot ride the

side of the ‘car without being knocked off (Tr. 2-44, 47, 48,

49, 50, 52, 59, 72). ,

' The testimony of one R. B. Thomas, Chief Railroad

Inspector for the Illinois Commerce Commission, discloses

numerous insufficient vertical and horizontal clearances

on various runs, including the runs’ onto the Eads and

Merchants bridges. His reports contain photegraphs

showing the switchmen riding on the rear drawbar of the

iast car of the train and also showing the various insuf-

- ficient clearances (Tr. 2-141, 210, 266, inclusive). His testi.

mony clearly shows that the dangers and hazards in ques-

tion could be eliminated by providing a caboose for the

man to-ridé in (Tr. 2-141).

‘Often the rear switchman rides the Siher 3 at ‘the trail-

ing end of the rear car. If the end of the car on which

\

. *

10.

he was riding happened to be the end that was provided

with a break staff, the switchman is required to grasp it

. 8 & means to secure himself in place. If no break staff

is provided he is required to reach further out towards the

side of the car in order to reach the end ladder or other

handholds.. He is also required to brace himself against

the end of the car to avoid being shaken off due to sudden

stops and starts. Photographs showing a switchman in

riding position and details of footing, ete, will be @oted

" (Tr. 2-227). The appellant admits a very serious accident

on the Eads Bridge to a switchman, Mueller, who was

riding on the rear drawbar,.when he was jerked off the

ear and injured (Tr. 2-196, 197).

. In many .instarces ‘the trains move up steep inclines

fraught with danger. If cars break off, it is very difficult

to stop such cats and to avoid loss of life of the public

* (Tr. 2-45, 50, 52). The evidence shows many unprotected

crossings (Tr. 2-45, 50, 51). ;

In many ‘lestanese without © caboose, the culichman te

required to stand on the top of the last car in the train

while shoving, and facing sleet and snow and rain storms

and wind. In sech cases’ the switchmen are unable to see

where they are going and are required in many instances

to turn their backs for shelter. If this is done such switch-

men cannot observe highway crossings or other dangerou-

. points (Tr, 2.90). \

In many instances the rear ewitchman or foreswitchman

cannot see the head switchman (45 car lengths away) until

the train gets onto a straight road (Tr. 2-34). In some

i it is necessary to shove a train without being

able to see. Sometimes the cars break off and roll down

and it is impossible to stop them by hand brake, in which -

case it is necessary for the switehman to run ahead of the

tars to protect the public (Tr. 2-34). With the use of

a caboose with air brakes properly working, the rear man

son Yerd to East St. Louis, Illinois; the Chicago, Burling-

ton & Quincy at Madison Yard and the C. T. Junction;

the Tihnois Central; the Big Four from East St. Louis,

Minois fo Granite City, Illinois; the Alton Railroad out

of Venice to various yards (Tr. 2-39).

‘The evidence also shows that various other railroads —

. Operating over the appellant's tracks in East St. Louis,

- Tinois District and under substantially the same condi.

‘tions, have the use of cabooses (Tr. 2-75, 76, 81, 83, 118).

As a ewitchman employed by the Illinois Central testified,

“‘we take a caboose on any run we want a caboose on”’

(Tr. 2-83).

At the conclusion of the befare the Commis-

sion, it found that aabooses were necessary on the runs in

question because of the operating hazards and dangers to

the life, health and safety of the trainmen, employees and

the general public and ordered the appellant to furnish such.

- cabooses (Tr. 2-1).

. The Cireuit Court's Order did not challenge the Commis-

sion 's findings as to the necessity for cabooses but reversed

>

> nee 12 0 &

"the Commission’s Orde lély on the ground that to order |

the use of cabooses on such runs as went onto the Fads

and Merchants bridgés constifnted an ’ interference with

interstate commerce beyond the power.of the Illinois Com-

merce Commission (Tr. 2-27 0). hea,

In passing upon the above evidence the Supreme, Court

/ot Iilinois, at 379 Ill. 408, at pages 405, 106, 411, 420° arid

421, said:

** Appellee ite appellant) i is a railroad doiseration’

: which performs terminal services in the railroad switch-

ing district of Kast St. Louis, Illinois, and’ St. Louis,

Missouri, Switchmen in its employ are assigned to

’ particilar switching crews. These crews make. and’

break up trains in the yards, make deliveries from con-

necting, roads to appellee ; make transfer runs from the

various yards of appellee to and from industries ; make

. up trains and couple cars together, see -that the air

brakes are éoupled and in order on the’train, and when

the train leaves the yard for a destination the switch.

men'take their proper positions on the train, the rear

man taking his position on the rear car of the train,

a re he is requiréd to ride; His duties are to line all

ty é ‘switches back into proper position after their. use by

oa the train, and in case of a reverse movement, to watch

f street and highway crossings to protect the public. “On

-/ some of the transfer runs, side or overhead clearancé

is insufficient to permit riding on the side or top of the’

rear car, in which case the rear awitchman is required

to ride the rear coupler of the car, The length of the .

trains handled by a crew on a trip varies from-one to

a hundred cars. ‘A caboose is a railroad ear furnished, ,

for the housing of train crews and equipped for their,

' ‘wafety; provides a place for the crew to carry neces:

\ °°, ary * flagging equipment, raincoats, extra or exces<

“| elothing, necessary first aid equipment and lunches:

also to dovany necessary clerical work. During the

winter months, the handholds, draw-bars and sill steps

of cars are often covered with ice, making it difficult:

> for switchmen to get to the top of a car or to prevent

/

J /y

FORD oe

4 .

‘

. ¢

13

being jerked or jarred off. No caboose or shelter cars” .

are furnished to crews ‘working out of certain of the -

involved yards, though they are furnished from Oc-

“ tober to May each year on other runs by appellee, and

on still other rung are furnished the year round.”’ |

' “The evidence shows that without cabooses or

_ shelter cars, switchmen are required to ride on the

outside of the rear car of the cut of cars being moved,

and that in many places in the yards and on the bridges,

side or overhead clearances, are insufficient to permit

riding on the side or top of the cars, with the result .

that the switchman is required to ride upon the coupler,

which is dangerous and beeomes specially so during

storm or winter periods. It is shown that the jarring

or sudden stopping or starting of'a cut of cars may

cause the switchmian to lose his hold and be thrown and

to suffer injury.’’

‘*That there i is substantial danger to switchmen that

ean be avoided by these enbooses or shelter cars, seems

cheay.

- Rs . * . . .

>

“We are a the opinion that the order of the com-

mission asa whole was a valid exercise of the police

power and that the circuit court erred in setting that

order aside. ia

_- » e ee ee el

‘14

Statement of the.Grounds Upon Which It Is Contended by

Appellees That the Federal Questions Involved Are Not

Substantial in Character. >

The order of the Illinois Commerce Commission was a

reasonable .police regulation for the protection of the

health, lives and safety of persons within the confines

of the State of Mlinois, and its effect upon interstat?

commerce was only incidental.

Under Points A and B, counsel for appellant contends

that the effect of the order of the Illinois Commerce Com-

mission was tq lay a direct and substantial burden upon

interstate commerce, from which he concludes that such

an order is unconstitutional even though it may not con.

flict with or be repugnant to any action taken by’ the Fed.

eral Congress. |

Under this point we contend that itis clear, under the

facts of this case, that the said order requiring cabooses

within the confines of the State of Illinois was a proper

police regulation for the promotion. of the health, lives and.

safety of persons within the confines*of said State, and

that its effect upon interstate commerc? (if any it had) ix

only incidental in character. Brom this we conclude that it

would only be invalid if in conflict with or repugnant to some

action taken by the Federal Congress, and under Point

Il- hereof, we assert that there is no such conflict or re-

pugnancy.

Of course it is the law, as appellant contends at pages 43

aml 44 of its suggestions, that if the order purport«

to Jay a direct*burden on interstate commerce it is invalid

even though not in conflict with or repugmant to any action.

of the Congress, but, on the other hand, it is equally well

settled that where a police regulation of a State affects in-

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terstate commerce only indirectly it is not invalid merely.

because of that incidental effect, and only falls where in

conflict with some action 6f the Congress. .

This Court, in the case of Carter v. Carter Coal c O., 298 ON

“U.S. 238, 80 L. Ed. 1161; in ‘discussing the distinction be-

tween a direct and indirect effect on interstate commerce,

‘at page 307, said : :

“The distinction is not formal, but substantial in ©

the highest degreg; as we pointed out in the Schechter

Case, supra, p. 546 et seq. ‘If the commerce clause

were construed,’ we there said, ‘to reach all enterprises

and transactions which could be said-to have an in-—

direct effect upon interstate commerce, the federal au-

thority would embrace practically all the activities of

the people and the authority of the State over its

domestic concerns would exist only by sufferance of

the federal government. Indeed, on such a theory,

even the development of the State’s commercial: facili-

ties would be subject to federal control.’ It was also

pointed out, p. 548, that ‘the distinction between direct

and ipdirect etfects of intrastate transactions upon

interstate commerce must be recognized as a funda-—

‘mental one, essential .to the maintenance of our con-

stitutional ‘system.”’

In the case of Chicago, Rock Island and Pacific Railroad

Co. ¥. Arkansas, 219 U.S. 453, this Court brushed aside the

contention that the Arkansas Full Crew Law conflicted with

the Commerce Clause. After reviewing its prior decisions

to the effect that the power to regulate commerce did not of

its own force and without legislation of Congress, impair

the authority of the states to establish reasonable regu-

lations for the protection of the health, the lives or the °

safety of their pam the Court; at pages 465 and 466,

said: .

“The principles announced in the above cases re-

quire an affirmance of the judgment of the Supreme

16 at ;

Court of Arkansas. It is not too much to say that the

State was under an obligation to estabfish such regula-

tions as were necessary or reasonable for the safety of

all engaged in business or domiciled within its limits.

Beyond doubt; passengers on interstate carriers while

within Arkansas are as fully entitled to the benefits of

valid local laws enacted for the public safety as are

citizens of the State.” Local statutes directed to such

‘an end have their source in the power of the State,

never surréndered, of caring for the public safety of all —

within its jurisdiction; and the validity under the Con-

stitution of the United States of such statutes is not

to be questioned in a Federal Court fhless they are.

‘clearly inconsistent with some power granted to the .

— general government, or with some right secured by that

instrument,.or unless they are purely arbitrary in their .

nature. The statute here involved is not in any proper

sense a regulation of Interstate.Commerce, nor does it

deny the equal protection of the laws. Upon its face,

it must be taken as not directed against Interstate Com-

merce, but as having’ been enacted in atid, not‘in ob-

struction, of such commerce, and for the protection of.

those engaged in such commerce. * * ° —

“eo ¢ —* Undoubtedly, Congress, in its: discretion,

may ‘take entire charge of the whole subject of the

equipment of interstate cars, and establish such regu- —

- lations as are necessary and proper for the protection

_of those engaged in Eataret ity concent But it has not

done so in respect to the number of employes to whom

mey be committed the actual management of interstate

trains of any kind. It has not established arty ‘regula-

tions on that subject, and until it does, the statutes of —

the state, not in their nature arbitrary, and which really -

relate to the rights and duties of all within the jurisdic-

tion must control. This principle has been firmly estab-

lished, and is a most wholesome one under dur systems

of government, Federal and State * ° *°’

- **Np. long as Congress does not occupy the fiel@ of

regulation under consideration, each state is empowered

to regulate in this field with respect to the safety of —

—

17

persons in interstate commerce that passes through the

State; therefore, it follows that it is immaterial that'the ©

various states may or may not enact full crew require-

ments in so far as the Commerce Clause is concerned.

Any inconvenience that may occur as a result of the

various state laws on this subje ct is timmate rial. i

_(Italies ours.)

In the dveciianit ‘ease of Atlantic Coast Line R. Co. v. -

State of Georgia, 234 U.S. 280, the validity of a Georgia *

statute requiring all railroad companies to equip their loco- |

“motives with electric headlights was assailed as being an

unwarrantable interference with interstate ¢ommerce.

This Court, speaking through Mr. Justice Hughes, in sus-

taining the Act in question, at pages 290, 291 and "292, said:

s Finally, it is urged that the statute constitutes an

_ unwarrantable interference with interstate commerce.

~ The locomotive with respect to which the accusation

was made was at the time being regularly used in the

hauling of interstate freight trains over the company’s

main line of failroad, and was equipped with an oil

headlight: The statute, as the supreme court of the _

state said, was not directed against interstate com-

“merce, but-it was held that it incidentally applied to

locomotives used in hauling interstate trains while these -

were moving on the main line in the state of Georgia. |

This being so, the act is said ,to be repugnant to the

exclusive power of Congress. It is argued that if

Georgia may prescribe an electric headlight, other states

through which the road runs may require’ headlights

of a different sort; that, for example, some may demand

the use of acetylene, and that others may require oil;

and that, if state requirements conflict, it will be neces-

sary tacarry additional apparatus and to make various

adjustments at state lines, which would delay and incon-* *

venience interstate traffic.

“The argument is substantially the same as. that

which was strongly presénted to the court in New York,

N.H. d H. R. Co. v. New York, 165 U. S.’628, 41 L. Ed.

: 18 ee / et i

853, 17 Sup. C't. Rep. 418, where/the plaintiff in error

was held subject to, penalt ' foy’”he violation of a New

York statute which in Substance made ‘it unlawful for

any steam railroad doing business in that state to heat -

its passenger cars, on any other than mixed trains, by

' any stove or furnace kept inside of the car.or sus-

pended therefrom. The railroad company was a Con-

necticut corporation having but a few miles of-read —

within the State of New York, and operating through —

trains from New York through Connecticut ‘to Mas- —

sachusetts. As this court said in its opinion, the argu-

-ment was made that ‘a conflict between state regula- —

tions in respect .of the heating of passenger cars used

_in interstate commerce would make ‘safe and. rapid

transportation impossible; that to stop an express —

train on its trip from New York to Boston at the Con-

necticut line in-order that. passengers may leave the

cars heated as required by New York, and get into other

cars heated in a different mode, in conformity with the

laws of Connecticut, and then at the Massachusetts line |

_ to get into cars heated by still another mode, as re-

quired by the laws of that commonwealth, would be a

‘ hardship: on travel that could not be endured.’ But

the court ruled that these ‘possible inconveniences’ —

could not affect ‘the quesfion of power in eaeb state |

_ to make such reasonable regulations for the safety of

passengers on interstate trains as, in its judgment, ali

things considered, is appropriate and effectiv.’ 2

_ * {n thus deciding, the court applied the settled prin-

ciple thet, in the absence of legislation bv Congress, the

states are not denied the exercise’ of their power to se-

cure safety in the physical operation cf railroad trains —

within thir territory, even | though, such’ trains are used .

’-in interstate commerce. That has-been the law since

the beginning of railroad transportation. It was not

intended that, pending Federal action, the use of such

agencies, which, unless carefully guarded, was fraught -

with danger to the community, should go unregulated,

and that the states should be without authority. to se-

cure néeded local protection. -The requirements of a

state, of course, must ‘not be arbitrary, or pass beyond

ae

the limits of a fair judgment as to what.the exigency

demands, but they are not invalid because another state,

in the exercise of a similar power, may not impose the

same regtilation. We may repeat what was said ‘in

Smith v. Alabama, 124 U. 8. 465, 481, 482, 31 L, Ed.

— 513, 514, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep.

ii4: ‘It isto be‘remembered that railroads are not

A aaa highways ef trade and commerce. * -°

The places where they may be located, and the plans ac-

cording to which they must be constructed, are pre-

scribed by the. legislation of the state. Their operation

requires the use of instruments and agencies attended

with special risks and dangers, the proper management

- f which ‘involves _peguliar knowledge, training, skill,

’ and eare.- The safety of the public in person and prop-

érty demands the use of specific guards, and -precau-

tions. * *.** The rules prescribed for their con-

struction and for.their management‘and operation,

designed to protect persons and property, otherwise

endangered by their use, are. strictly within the limits

of the local law. They are not per se regulations of

commerce ; it is only when they operate as such in the

.cireumstances of their application, and conflict with the

‘expressed or presumed will of Congress exerted on the

same subject, that they can ‘be required to give way to

the supreme authority of the Constitution. (Citing

cases.) ~

“If there is a conflict in such local regulations, by

‘which interstate commerce may be. inconvenienced,—if

there appears to be need of standardization of safety

appliances, and of previding rules of operation which

will govern the entire,interstate road, irrespective of

‘state boundaries,—there is a simple remedy ; and ‘it can-

hot. be assumed that it will not be readily applied if

thete be real occasion for it. That remedy does not

' * rest in a denial to the state, in the absence of conflict-

ing Federal action, of its power to protect life and

property within its borders, but it does lie in the exer-

cise-of ‘the paramount authority of Congress, -in its

control of interstate commerce, to establish such regu-

‘Jations as, in its judgment, may be deemed appropriate.

oi

20 .

and sufficient. Congress, when it pleases, may give the

rule and make the standard to be observed on ‘the: inter-

state highway.’

A rather similar. situation arose in the case.of Whitney

v. Johnson, 37 F. Supp. 65 (statutory three-judge court,

1941), affirmed by this court per curiam in 314 U. 8. 574,

where a Kentucky statute limiting truck weights. to 18,000 _—

pounds was attacked on the ground that : 7

‘*because of this limitation Kentucky is seriously in-

terfering with interstate commerce. That it is so far.

out of line with other states from which and to which:

tonnage must pass, in gross weight ‘permitted to be:

carried, that there is produced a ‘bottleneck’ which .

seriously interferes with te national ‘defense.’

The trial court ref used to enjoin the ‘enforcement of the

Kentucky statute on the ground that it was within the power

of the state to regulate such matters, and this Court affirmed. —

There, as here, the regulation unquestionably had some

effect. on commerce outside the state, but such effect was

merely incidentak. . |

In the pore case of California v. Thompson, decided

April 28, 1941, 313 U.-S. 109, 85 L. Ed. 793, this Court

reviewed tXe law and, at page 113, said: 3

s this Court-has often had occasion to point out,

the ommerce Clause, in conferring on Congress power

to regulate commerce, did not wholly withdraw from

the states the power to regulate matters of local con-

cern with respect to which Congress has not exercised .

its power, even though the regulation affects interstate .

commerce. Ever since Wilson v. Black Bird Creek

Marsh Co., 2 Pet. (U. S.) 245, 7 L. Ed. 412, and Cooley

v. Port Wardens, 12 How. (U. 8.) 299, 13 L. Ed. 996,

it has been recognized that there are matters of local

concern, the regulation of which unavoidably involves

some regulation of interstate commerce, but which be-

" |

| cause of their local character and their number and |

21 .

diversity'may never be adequately dealt with by Con-

‘ gress. Because of their local character, also, there

. °is wide scope for local regulation without impairing

‘the uniformity of control of the national commerce

in matters of national concern and without materially

obstructing the free flow of commerce which-were the

principal objects sought to be secured by the Com-

: .. merce Clause. Notwithstanding the Commerce Clause,

_ such regulation in the absence of Congressional action

_ has for the most part,.been left to the states by the

decisions of this Court, subject only to other applicable

constitutional ‘restraints. See cases collected in Di

Santo v. Pennsylvania, oupre, (273 U.S. 40, 71 1. Ed.

528, 47 S. Ct. 267).

‘*A state may license tisinmen engaged in interstate

commerce in order to insure their skill and fitness.

_ Smith v. Alabama, 124 U. 8. 465, 31-L. Ed. 508, 8S. Ct.

564, 1 Inters. Com. Rep. 804; Nashville, C. dé St. L.

R. Co. v. Alabama, 128 U.S. 96, 32 L. Ed. 352, 9.8. Ct.

28, 2 Inters. Com. Rep. 238. Tt may define the size

of crews manning interstate trains. Chicago, R. 1. &

P. R. Co. v. Arkansas, 219 U. 8. 453, 55 L. Ed. 290, 31

S. Ct. 275; Missouri P. R. Co. v. Norwood, 283 U. S.:

249, 75 L. Ed. 1010, 51 S. Ct. 458, 30 N.C. C. A. 639,

antl prescribe regulations for payment of their. wages.

Erie R. Co. v. Williams, 233 U. S. 685, 58 L. Ed. 1155,

34 S. Ct. 761, 51.L..R. A. (N. S.) 1097.‘ It may require’

interstate passenger cars to be heated and guard posts

to be placed on bridges of an interstate railroad. New

York, N. H. and H. R. Co. v. New York, 165 U. S. 628,

41 L. Ed. 853, 16S. t. 418. It may limit the speed of |

interstate trains within. city limits. Erb v. Morasch,

_ 177 U.S. 584, 4 Ld. 897, 20S. Ct. 819. It may re-

‘ings. Erie R. Co.-v

quire an interstate railroad to eliminate grade cross-

ublic Utility Comrs., 254 U.S.

394, 409, 412, 65 .L. Ed. 322, 333, 334, 41 8 Ct. .169,

P. U. R. 1921C 143. It may pass local quarantine laws

‘applicable to merchandise mov ing in interstate com-

' merce as a means of protecting local health. Morgans,

y P

L. @ T. R. R. & 8.8. Co. v, Louisiana, 118 U. S. 455,

: do ;

22

. $0 L, Ed. 237, 6 S. Ct. 1114; Compagnie Francaise de

_ Navigation a Y epeur v. Siute Bd. of Health, 186 U. S.

380, 460 L. Ed. 1209, 22 S. Ct. ll. It may regulate

and protect the safe and convenient use of its harbors

and navigable waterways unless there is conflict with

some act of Congress. : Wilson v. Black Bird Creek

Marsh*Co., 2 Pet. (U. S.) 245, 7 L. Ed. 412, supra;

see Clyde Mallory Lines v. Alabama: 296 U.S. 261, aay

80 L.Ed. 215,219, 56 S.Ct. 194."

. The most recent thease. 1941) expression of this

Court on this. point'is that to be found in the case of Duck-_

worth v. Arkansas, 314 U. S. 390, 62 S. Ct. 311, where this

Court, at page 394, said:

“While the commerce clause has been interpreted as .

reserving to Congress the power to regulate inter-.

state commerce in matters of national importance, that

has never beén deemed to exclude the states from regu-

lating matters /rimarily of local concern with respect

to which Congress has not exercised its power, even

though. the regulation has some effect on interstate

commerce, /As we had occasion to point out at the last

tera of Court, there are many matters which are ap- |

propriate subjects of regulation i in the interest of the - .

safety, /health and well-being: of local communities

which, because of their local character and their num- .

ber and diversity, and because of the practical diffi-

‘= culties involved; may never be adequately dealt with

+... by Congress. Because of their local character, also,

there is wide scope for local regulation without impair-

ing the uniformity of control over the commerce in

matters of national concern and without materially

obstructing the free flow of commerce, which were the

principal objects sought to be secured by the commerce

clause. Such regulations, in the absence of superven- —

ing Congressional action, have for the most part been

sustained by this Court, notwithstanding the commerce

clause. See California v. Thompson, 313 U. S. 109, 113,

et seq., and cases cited. See also cases collected in

Di Santo v. Pennsylvania, 273 U. S. 34, 39, 40, and in

South Carolina Highway Dept. v. Barnwell Bros., 308

U. 8. 177, 188, Nete 5, and 191.

@ é 7 . . a ae

‘ : Las A :

‘*Of recent years, the Court has sustained state regu-

lation of the size and weight of moter. cars moving

interstate, designed to insure the safe and economical

use of the states’ highways. South Carolina Highway

Dept. v. Barnwell Bros., supra, and cases cited. A

state may police ‘caravans’ of motor vehicles, moving

over its highways in interstate commerce : ‘and charge

a compensatory license fee for doing it. Morf. v.

Bingaman, 298 U. S. 407; Clark v. Paul. Gray, Ine,

306-U. 8.583. It may, in ‘the interest of public safety

and convenience, restrict particular types of —

vehicles moving in interstate. commerce, to parti

areas. Sproles v. Binford, 286-U. S. 374, 393-5; of.

Clark v. “Paul Gray, Inc., supra, 598. And a state may

undertake to insure the fitness of those negotiating con-

tracts for interstate transportation, by licensing them

_ and requiring a bond to insure | their good behavior.

.California-v. Thompson, supra.”’

7

‘The principo! case upon which appellant relies is that

Of South Covington & Cincinnati Ry. Co. -v. Covington, 235

U. 8. 587. Lhe fact is thai the Covington case, relied upon

by appellant as being conclusive of the issues, in fact actw-

ally supports arpellees’ position herein and confirms the

_ Principles announced in the cases relied upon by us with-

out in any wise changing or modifying or reversing any

of them. &

An examination of the case discloses that it originated

3 in a petition filed by the. South Covington and Cincinnati

St. Railway Co. in the state courts to enjoin the City of

Covington from enforcing a city ordinance regulating the

operation of street cars of the company. The ordinance

in question provided (1) that.no street car company shall

a4

permit more than one-third greater number of passengers

to be transported over and above the number for which

seats are provided-in the cars; (2) thal the street car com-

pany shall not permit any passenger to ride upon the rear

sleifere of any car unless same be provided with a suit-

able rail or barrier 20 arranged as to provide an open space

reasonably sufficient for egress and ingress of passengers

to and from such car (3) that-the street car company shall

not suffer or permil any person or passenger to vide wpon

the front platforni of any car waless a rail ar barrier be

provided, separating the motorman from the balance of

“the front platform (4) that the company shall at all times

herp its cars thoroughly cleaned and ventilated and shall

at least once a week fumigaté the inside of said cars with

disinfectant subject to the control of the Board of Health

of the City of Covingtom (5) that the temperature of the

ears shall never be permitted’ to be below 50° Fahrewheit,

and (6) that the street car company run and operate cars

in the City of Covington in sufficient numbers at all times

*. to reasonably accommodate the public. ~

The state courts refused the injunction and amlesed

the petition. The testimony showed that ‘the plaintiff was

carrying passengers from Covington, Kentucky, to Cin-

cinnati, Ohio, and that the traffic was conducted by means

of continuous trips for single fare without change of motor. 4

men or conductors. This Court said, page 545:.

‘*Reaching the conclusion that the traffic here regu-

lated is of an interstate character, and therefore within

the contro) of the Federal Congress, thafurther ques-

tion ix presented: Does the case come within that clas«

wherein the state may regulate the matter legislated

upon until Congress has acted by virtue of the supreme

authority given it by virtue of the commerce clause

of the Constitution. Jn sumecrous instances this court

~ has sustained local enactments, passed in the ‘on.

"of the police power ol@p> state, in the interest of the

ic health and safety, notwithstanding the requla-

tion may incidentally or indirectly affect imterstate

rommerce. The subject was gi most consideration

in the Misinesota Rate Cases (Simpson v. Shepard) 230

U. S. 352, 57 L. Ed. 1511,48 L. R. A. (N. 8.) 1151, 33

S.Ct. Rep. 729, and previous cases dealing with

to poet | for local improvements or facilities, or to

adopt reasonable measures m the intcrest of the health,

safety, and welfare of the people, notwithstanding such

regulations might incidentally and indirectly mrolre

interstate commerce.”’ (Ttalics cua.)

This Court thereafter proceeded to hold that the sec-

tions of the ordinance embodied in paragraphs 1 and 6,

making it unlawful for the company to permit more than

one-third greater number of passengers to ride or be trans. |

ported in its cars over and above the number for which

seats wefe provided therein, directly affected interstate

commerce. , The testimony showed that in order to comply

with these regulations the plaintiff would require about

one-half more than the present number of cars which the

company then operated and more cars than it could operate —

in Cincinnati within the franchise rights and privilecay

ee en oe

This Court said, page 547:

“These facts, together with the other details of ppera-

tion of the cars of this company are to be taken into

view in determi the nature of the regulation herein

and wi it 20 y burdens interstate

commerce as to be beyond the of the State."’

It was by reason of these peculiar conditions that this

Court concluded ‘that such portion of the ordinance regu-

lating the number of passengers and the number of cars

f

os . ae

. to paiebiandasé the public w was 4 direct bandon upon inter-—

hag state commerce..

The significant fait secant is that this Cou rt proceeded ,

to hold that ‘other portions of the ordinance were valid

-and only incidentally affected interstate\\commerce and

. reversing the State courts in that respect, ‘and — (page

548) :

‘*There are other parts of the ordinance which we

are of opinion are ‘within the authority of the state,

and proper subject matter fdr its regulation; at least,

until the Federal authority is exerted. These are the

provisions with reference to passengers ing on the

rear platform unless the same be provided with a suit.

able rail or barner, ete., and as to persons riding upon

the front platform unless a rail or barrier be. provided,

‘separating the motorman from the balance of the frorit

platform, as well_as those provisions with reference

(y the requirement to keep the cars clean and ventilated

- and fumigated. We think thege regulations come within

that class.in- which this.court has sustained the right of

= loco! authorities to safeguard the traveling public,

to promote their comfort and convenience, only in-

cntaily affecting the interstate business, and not siub-° :

jecting the same to unreasonable demands. New York,

V.H. & H.R. Co:v. New York; 165 U. 8, 628, 41 L. Ed.

_ 853, 17 Sup. Ct. Rep. 418; Lake Shore & M.S. R. Co.v.

* Ohio, 173 U. 8. 285, 43 L. Ed. 702, 19 Sup. Ct. Rep. 465;

Atlantic Cogst Line R. Co. v. Georgia, 234 U.. 8. 280,

° 201,/292,°58 L.Ed. 1312, 1317, 1318, 34 Sup. Ct. Rep.

i Sema ours.)

Wer bmit that thers § is a cloxe analogy between the re-

quirement in the Covington ordinance requiring the street

' ear company to provide the rear platforms with a suitable

rail-or barrier and as to persons riding upon the front

'. platform with a rail and barrier separating the motorman —

from the balance of the front ‘platform: and to keep. the

_ ears » clean, Sentilated and fumigated, and the requirement . i

27

of the Commission in this case to provide a cabdose. for

the life, health and safety of the switchmen riding thereon.

The very purpose of the caboose is to saféguard the em-

ployee just as the suitable rail or barrier on the-front and

rear platforms provided for in the Covington ordinance

was to safeguard the traveling public. The mere fact that

_a caboose might be taken over the Eads Bridge and Mer-

chants Bridge into the State of Missouri is purely incidental,

just as the rail or barrier on the front and rear platforms

on the streét car would necessarily be taken ftom Covington,

Kentucky, into Cincinnati, Ohio.

Counsel for appellant erroneously assumes that the dis-

tinction between the portion which this Court held valid and

enforceable and that which it held to be beyond the power

of the city, was due to the fact that the valid portions of the

ordinance could be enforced wholly in Covington without -

necessarily being enforced in Cincinnati, whereas, in the.

invalid portion, as to the number and amount of cars and .

number of passengers to be carried, could not be enforced

in Covington without also being enforced in Cincinnati.

*. This was not the basis of the court’s decision. The valid

‘portions of the ordinance were sustained on‘ the ground

that the local authorities had the right to safeguard the

_ traveling public and promote their comfort and convenience

even though it incidentally affected the interstate business,

s0 long as it did not subject the same to nnrgasonable bur-

dens, whereas, the other portions of the ordinance which

were held to be invalid were so held beeguse other factors

above discussed existed.

It will be noted that if the City of Covington could_re-

quire suitable rail or barfier with respect to the rear or front

platform of the car, there was nothing to prevent. the

City of Cincinnati from requiring other safeguards to be

erected or installed upon the street cars for the protection

of’the passengers. This Court undoubtedly had this pos-

6

' sibility in mind sinee it adverted to this fact in connection

with the invalid portions of the o,dinance. However, in

spite of this possibility, the court, nevertheless, held the

provisions pertaining to the comfort, convenience

safety of the traveling public as affecting the inters

commerce only incidentally and not subjecting the sa

to unreasonable burdens.

We submit that the requirement of furaichion a caboose

for the protection of the switchmen has.no more direct

effect upon interstate commerce than the requirement of

the Arkansas Full Crew Law, enacted for the public kafety,

which the Supreme Court of the United States upheld as

having been enacted ‘‘in aid not in obstruction”’ of inter-

state commerce, ‘‘and for the protection of those engaged in’.

such commerce,”’ and that ‘‘any inconvenience’’ that may

occur as a result of \the various State laws on this subject *

is immaterial. Chicago Rock Island & Pacific Railroad Co.

v. Arkansas, 219° U. §. 453, 466.

There is no materihll distinction between the requirement

of furnishing a caboore i in our case and the requirement of —

‘the Georgia Statute involved in Atlantic Coast Line v.

Georgia, 234 U. &. 280, wherein railroad companies were

ordered ww, equip their locomotives hauling interstate

freight trains with electric headlights. This Court held

that although the locomotive was at the time being regularly

used in the hauling of interstate freight trains, the Statute

was not direeted against interstate commerce but merely .

indirectly’ affected interstate commerce.

There, as here, it was contended that if Georgia may pre-

scribe an electric headlight other States through which the

road run« ma¢ require lights of a different sort and that

if the State requirements conflict it would be nécessary to -

carry additional apparatus and to make various adjust-

‘ments at State lines which woald delay and inconvenience

inferstate traffic. |

? 29°

Rut the court held that the effect upon interstate com- _

merce was merely. incidental and the State was .not to be

‘denied its power to Seis life and. property within its

borders. . :

A sitnilar contention was made i in New Ye orks N.H.d& H.R.

Co. ¥. New York,165 U. S. 628, as to electric headlights which

were required by New York law to be installed on. inter-

state trains running from New York City to Boston, Massa-

chusetts, and the court held that these ‘‘possible incon-

veniences’’ could not affect the questian of power in each

State to make reasonable regulations for the safety of

passengers on interstate trains | Aastha appro-

priate and effective.

Another case supporting our position, but cited by appel- —

lant at page 46 of its statement, is that of Missouri Pacific

Railway ’v. Kansas, 216 U.S. 262, 54 L: Ed. 472. ;

In that case.‘‘ the order of the State Commission directed —

the putting in operation of a passenger train service be-

- tween, Madison, Kansas,_and -the Missouri-Kansas State

line, on what is known es the Madison branch of the Mis- ;

souti Pacific Railway Company. The branch road in ques-—

tion lies between Madison, Kansas, and Monteith Junction,

- Missouri. From Madison to the State line is 89 miles, and’

from the State line to Monteith Junction is 19 miles, the

total distanee between the two terminal points being 108 |

miles. At Monteith Junction the Madison branch intersects

with the Joplin line. of the. Missouri. Pacific, by means of

- which connection is made with Kansas City and other points.

There being no terminal facilities at Monteith Junction,

the trains operated on the Madison branch do not remain

over at ‘the junction, but run as far- as Butler station,

3 miles distant on | the: coe line, where terminal facilities

exist.’’ :

This Court there said: .

‘* And this brings us to a the several reasons

relied, upon ‘to establish, first that the order made by

the railroad commission was so arbitrary and unreason-

able as to cause it to be void for want of power; or

second that the order was void because its necessary

‘operation was to place a direct burden upon Interstate:

Commerce.’’

‘As.to the first proposition, the contentién was made that ee

the order was arbitrary because the service could not. be

rendéred without a pecuniary loss and: the court held that

the mere incurring of a loss from the performance of a

- duty does ‘not, in and of itself, necessarily give rights to

; the conclusion of unreasonableness, and the court cited and

~ quoted at length from the case of People ex rel. Cantrell

-.v, St. Louis, A.d T. H. R.Co., 176 Mil. 512. |

a“ The contention was, also, made that the order was un-

~ reasonable because it directed-the movement of passenger

’ train directed to be run to the state line, where. itis said

there were no terminal facilities and that it would: have to

run the-train to @ point outside of the state. :

. The contentfoii' was also made that the order was a direct

burden upon: Interstate Commerce. Answering that con-

tention the court said:

‘*The contention that s bites was imposed upon

interstate commerce by causing the train to stop at the

state line, where there were no terminal facilities, but

in a disguised form reiterates the complaint which |

‘we. have already disposed of, that the order, because

- of the direction to stop at the state line, was so arbi-

trary and unreasonable as to be void. .The order can-

not be said to be an unreasonable exertion of authority,

because the power manifested was made operative to

_ the limit of the right to do. so. Besides, the proposi-

. tion erroneously assumes that the effect of the order ©

is to direct the stoppage at the state line of an inter-

| : ; J

\ ; F ?

31

state train, when, in fact, the order does not deal -with an. .

interstate train, or put any burden upon such train, but

simply requires the operating within the state of a

local train, the duty to operate which arises from a

charter obligatiofi. It is said that, as the state line

may be but a mere cornfield, the great expense must

result to the railway from establishing necessary ter-

minal facilities in such a place, it- must follow that the .

road, in order to avoid the useless expense, must oper-

ate the passenger service directed by the order, not |

only to the state line, but 20 miles beyond, to Butler,

on the Joplin line, where terminal facilities exist. .

From these assumptions, it is insisted, that the order .

must be constried according to its-necessary effect, and —

‘therefore must be treated as imposing a direct burden

upon interstate commerce by compelling the operation

of the passenger train, not only within the state of

Kansas}. -but beyond its borders. But/under the hy-

' pothesis upon which the contention rests, the. operation

of the train to Butler would be at the mere election of

the corporation, and, besides, even if the performance

of the duty of furnishing adequate .local. facilities in

some respects | affected interstate commerce, it does

not necessarily result that thereby a direct burden on’

interstate commerce would be imposed. Atlantic Coast

Line R, Co. v. Wharton, 207.0. S. 328, 52 L. Ed. 230,

26 Sup. Ct. Rep. 121.’’ (Italics ours.) aig A

The conrt aiso referred to the Atlantic Coast Line R. Cd

_ v. North Carolina Corp. Commission case; and. said:

‘‘The elementary proposition that halineble, irom:

the public nature of the business by them carried on,

and the interest which the:public-have in their opera-

tion, are subject, as to their state business, to ‘state

regulation, which may be exerted either directly, by the ~

-legislative authority, or by administrative bodies en- -

_ dowed with power to. that end, i is not aiid could not be

/. successfully questioned, in view of the long line of

_ authorities sustaining that ew oe

32

This court.then affirmed the decision of the lower court.

‘ This case fully supports the contention of the appellees

because of the contention made by the appellant. that

_ cabooses as a practical matter will have to be run into the

‘State of Missouri. In eur present’ case the- taking . of

cahooses into Missouri. (although our contention is that

cataoses on the bridge rune could be changed at the cross

overs on the bridges which are in Illinois), would be at

the election of the appellant, and as the court said: ‘‘Even

if the performance of duty. of. furnishing local facilities in

some respects. affected Interstate Commerce it does not.

necessarily follow that thereby- a/direct burden. on Inter-

state Commerce would be imposed.”

In view of these authorities it is reupectfally submitted .

that the order of the Illinois Commerce Commission was a

reasonable police regulation fo ‘the protection of the health,

_ lives and safety of persons ithin the confines of the State

of Illinois and that its effect, if any, upon interstate com-_

merce was-indirect and i incidental;

. II. =

The order of the Illinois Commerce Commission is not repug-.

want to or in conflict with oye action taken by the Federal:

Congress.

—

_. Under Point C, ‘appellant euehintin t that the State of IIli-

nois is without power to require cabooses to be furnished

on its trains within its. confines because the Congress has

taken charge of the: entire field of cabooses, although —

appellant impliedly admits that Congress has mot spe-

cifically angen respecting the ——- of such

cabooses.

Of course, it is well established, as ubpellont contends,

that if Congress has purported to take ebarge of the entire’

field to the exclusion of the States, they are thereafter. with-

e out power to legislate within that field.

ras 33

® He -

It is our contention, however, that Congress has not at-

tempted or even purported to také charge of this field, al-

. though it has legislated as to certain isolated subject mat-

ters within the field. It is our further.contention that the

‘order of the Illinois Commerce Commission is not in con-

~ flict with any action thus far taken by the Congress, —

is therefore entirely valid.

Appellant’s principal contention is that the hiniihion :

of cabooses is a ‘‘working condition”’ and that this field

_ was taken over by Congress in its enactment of the Railway

‘Labor Act, and the Interstate Commerce Act. . :

Botir of these contentions are dealt with at length and ons

disposed ‘of adversely to appellant’s position in the éase of bs

Missouri Pacific Railroad Co. v. Norw ood, 283 U. S. 249;.

70 L. Ed. 1010.

In that case two Arkansas statutes, both requiating the

number of men to be used in the crews of trains operated

within the State of Arkansas (commonly known as Full

- Crew sLaws) were involved. In earlier cases, these two -

State acts had been assailed as violating the. commerce

clause of the Federal Constifution and the due. process-

and equal protection clauses of the Fourteenth Amendment

to the Federal Constitution. This Court, in the cases of

Chicago, R. I. and Pac. Ry. v. Arkansas, 219 U. 8, 453, 459,

465, affirming 86 Ark. 412, 111 S. W. 456, and of St. Louis,

IM. @ 8. Ry. Co. v. Arkansas, 240 U. 8. 518, affirming }14

Ark. 486, 170 S. W. 580, has sustained the validity of the

Acts i in question as regarded these provisions of: ‘the Federal

“Constitution as amended. .

--\ In speaking of its previous holdings in these two canes, the —

‘Court,.i in the later Missouri Pacific case, said, at page 252:

‘*The court held that the Act of 1907 is not a ‘regula- —

‘tion of interstate commerce and that upon its face it

must be taken as having been enacted in ‘aid of, and

for the protection of those engaged in, such commerce.

34

It said that Congress might. have taken entire charge

of the subject, but that it had‘not done so and had not

enacted regulations in respect of thé number of em-

-.-ployees to whom might be committed the management

of interstate trains and that until it does the statutes

of the State, not in their nature arbitrary, must: con-

trol. The court found that, while under the evidence

there was admittedly room for controversy as to

whether the statute was necessary, it could not be said

that it was so unreasonable as to justify the court in _

adjudging it an arbitrcry exercise of power.. And it-

held that, being applicable alike to all belonging to the

same class, there was no basis for the contention that

it denied the company equal protection of the ‘laws.

The principles governing that decision were followed

in the later case, decided in 1916, which upheld the Act

‘of 1913. Both Acts were sustained ‘as valid exertions

of police power for the promotion of safety of em-

ployees arid others. ‘es ; :

This Court, in the cited Siesseit Patific « case, sets forth

‘the railroad’s contentions to the effect that these two Ar-

kansas statutes had been rendered in conflict with and re-

pugnant to Federal law by. virtue of -the subsequent enact-

ment by Congress of the Interstate Commerce. Act and the

Railway Labor Act in the following language set forth at

“pages 252 And 253 of 283 U.S: -

<The plaintiff says that, since hein rare ay, Con-

gress has occupied ‘the field and has delegated to the

Commission and Labor Board full authority over thc

subject and that the state laws under consideration are

- repugnant to the comprehensive scheme of federal reg-

» wilation prescribed by the Interstate Commerce Act as

amended and conflict with sections 1°(10) and (21),-13,

- 15 and 15a thereof and with the spirit of; the Rail-

way Labor Act of 1926.’’ .

=

The Court, at page 256, states the pee tala before

it in the ere language :_

oe

. o

.

- at t pages 256 to

35

.**Has Congress prescribed, or authorized the Inter-

state Commerce Commission to regulate, the number of

brakemen to be employed for the operation of freight

trains or the number of —: to be included in

switching crews?’’: | °

This Court in| overruling the railroad’s contentions and

‘in sustaining the validity of the Acts in question, aonerenee,

ag as follows ::

‘In the absence of a ‘clearly expressed purpose 80

to do Congress will not be held to have intended to pre-

vent the exertion of the police power of the-States for

the regulation of the number ‘of men. to be employed

. in such crews. Reid v. Colorado, 187 U. S. 137, 148.

- Savage v. Jones, 225 U.S. 501, 533. Napier v. Atlantic

‘Coast Line, 272 U. S. 605, 611. Plaintiif, while not

claiming the Interstate Commerce Act in terms pur-

ports to cover that subject, insists that the Act does

give the Commission jurisdiction over freight train

. and switching crews and so.excludes the States from

that field. It calls attention to a number of-provisions

of the Act and maintains that under them the Com-

mission is empowered to regulate the ‘practice’ of car-

riers in respect to. the ‘supply of trains’ fo be

‘provided by any. carrier. But, assuming that the

Act does so. authorize regulation in respect of such

practice and supply, it is clear that the delegation

of power would not include the regulation of the num- .

| ber of brakemen or helpers. -The act uses the word

‘practice’ in connection with the fixing of rates to be

charged and prescribing of service to be rendered by

| the carriers, but these matters differ widely in kind

from the subject covered by the Arkansas laws. That

word is‘deemed to apply only to acts or things belong-

ing to the same class as those meant by the Words of

_ the law. that are associated with it: Baltimore ¢ O. R.

Co. v. United States, 277 U. 8. 291, 300. -The Act -does

not use that word in respect of any subject that rea-

sonably may be thought similar to or classified with

the regulation of the number of men to be employed in

cach crews. And tt to alto clear that these to usthing

in the phrase ‘supply of trains’ or in the purpose of

the Act to suggest that by it Congress intended to

rates and to ascertain rate levels that will yield the

fair return provided for. But manifestly there is no

_ similarity between determining what items of expense

properly are to be taken into account in calculations

Sn Oe eee

number of employees or the compensation to be paid

them. We think it very clear that Congress has not

prescribed or empowered the Commission to fix the

number of men to be employed in train or switching

these laws were in Sea tees tected tw oe

We submit that the cited case completely disposes of all

of the appellant's vontentioné here to the effect that the .

~

‘

order in question is such as to be in conflict with or re-

pugnant to any action taken by the Congress. .

A very recent (January 11, 1941) case dealing with the

general subject of conflict between State action and the ac-

tion of the Federal government respecting interstate com-

merce is the case of Miksouri-Kansas-Texras Railroad Co. v.

- Wilkamsen, 36 Fed. Supp. 607.

There an action was brought by a railroad company

against the Attorney General of the State of Oklahoma to

enjoin an Oklaboma statute limiting the length of trains.

within that State. It was contended that this statuf® bur-

dened iyterstate commerce, violated the Fourteenth Amend-

nent aad conflicted with Federal action in this field.

In holding that regulation of the length of trains was in

the interests of. public safety, and that the Act did not vio-

late any Constitutional provision nor conflict with any ac-

tion taken by the Congress, the Court, at page 615, said:

**But the intent of Congress to exert its superior au-

thority and thus exclude or supersede state legislation

concerning the same matter is not to be lightly inferred.

It must be fairly manifested. Reid v. Colorado, 187

Ed. 108; Sevage v.

- O©t, 488) 42 L. “Ed. 878 And it is within the power of

Congress to limit its regulation to only part of a given

—

,

‘field, ‘thus leavi ing the remainder bp to action by the

<tate. \ Southern. gt yd Co. v. Railroad Commission

of Indiana, supra; Gilvary v. Cuyahoga Valley Rail-

: road ('9., supra; «/f Napier v. Aflantic C oast Line Rail-

_. road Co., supra. Vgntale

“The acts of Congress relied upon fail to make speci-

’- fie reference to the length of trains as an element of

safety, and it is not contended that the Interstate

Commerce Commission has acted or asserted its au-

thority to act in‘respect of the matter under the powers

which Congress has delegated to it. True, some if hot

all of the statutes concern themselves with various

aspects of safety in the operation of trains. But; fairly

construed, they do not contain any provision ‘from .

which ‘it can be reasonably implied that Congress in-

tended to exert the paramount character of its author-: —

ity in relation to the length of trains in such manner

', ‘as’ to exclude or supersede state action. . And, until

_ an intent to exercise such superior authority has been

' indicated, ‘the state is free to legislate in the exertion

. of its police power. Compare, Atlantic Coast Line

Railroad Co, v. Georgia, supra; Vandalia Railroad Co.

v. Public Service Commission, 242 U. 8.255, 87-8. Ct.

93, 61 L. Ed..276; Gilvary v. Cuyahoga Valley Railway

Co., supra.”’” rs ;

J ‘

y : 38

/ ‘

‘ 2 é t

Although appellant’s counsel also mentions the car service

provision, the Boiler Inspection Act, the Power Brake provi-

sion of the Safety Appliance Act,.ete., he does not contend

thatthe order in question actually conflicts with any of

these specific provisions. ne :

Counsel's statement to the effect that this Court, in Penn.

-R. R..Co, y. Public Service Com., 250 U. 8. 566, held that

Congress has taken charge,.not only of the details of the

construction of cabooses, but alsé of the question: ‘of whether

they shall be carried on trains at all, is absolutely withou!

support in that or any other case to our knowledge. a reo

Counsel’s next statement that the furnishing of cabooses

. has always been treated as a ‘working condition’ is with-

39

out, support in the revord, as we have already pointed out

in yur ‘*Corfections in Appellant’s Statement of Facts.”

Appellant also contends that the order conflicts with the

poMgs granted the Interstate Commerce Commission be-

tandbliNe railroad may have to issue-securities to finance

the purchase of the cabooses in question. There is no evi-

dence in the record to show that the appellant would have

ti’ borrow any sums of mongy to comply with the order, or

issuoAines evidence of indebtedness which would have to be

_- submitted to the Interstate Commerce Commission for ap-

proval. Furthermore, as hereinafter shown, the actual cost.

of furnishing the caboose is comparatively nominal.

But irrespective of this fact, the Transportation Act has

“no application to a situation of this kind, as evidenced by

. the very-¢éases relied upon by’ appellant.

In Railroad Commissioner v. Southern Pacific Company,

264 U.S. 331, 68 L. Ed. 713, relied upon by counsel, the

Railroad Commission of California had required certain

railroads to build an interstate union depot for the City

of Los Angeles. Int order to’ comply the railroads ‘would

have been required to extend their lines and remove-certain _

other tracks in order to properly connect with the ‘Union

depot. The Supreme Court called attention to the fact that

the order there involved required the abandonment of

available sites, the extension of main lines and terminals

and alterations costing from $25,000,000 to $45,000,000.

The Supreme Court held that the Transportation Act.

did not prevent the state commission from making reason-

able regulations which did not involve abandonment of sites, .

extensions of main lines arid material changes in the lines

of the carriers.

The court said, page 345:

“lt may well be that a mere relocation of a main

. track of an interstate carrier which does not involve

_. a real addition to, or abandonment of, main tracks and

40°

terminals, or a substantial change in destination, does

not come within Pars. 18 to 21. One might, too, ‘read-

_ily conceive of ‘railroad crossings or connections of

interstate carriers in which the exercise by a state com,

” mission of the power t6 direct the construction of:

‘ merely local union stations or terminals -without ex-

tensions of main tracks’ and substantial capital outlay

shouldbe regarded an ordinary: exercise of the police

‘power of the state ‘for’ the publie. convenience, and -

would not trench’ upon the power and supervision of

the Interstate Commerce Commission in securing

_. proper regulation of an interchange of interstate traffic

-* or passengers. Only a lawful order of the Interstate

Commerce Commission would raise a.question of the

‘power of a state commission in such -cases, as the

proviso of p. 17, ct 402, of the Transportation Act,

shows :

“That nothing in | this act shall impair or affect thie

right of a staté in the exercise of its police power, to

- require justand reasonable freight and passenger serv-

ice fot intrastate business, eycept tm so far as such re-

“: quireme nt is inconsistent with any lawful order of the

Commission made under the provisions of this act.’

< (Italies ours.)

7. It was further ieniended | in that case that the order of .>”

_ the state commission ‘involved such a heavy burden in the

erection of a new union station and the main track changes

and extensions and other accessories which would require

the three railways involved to issue new ‘capital securities,

and this could not be done without the approv al of the Inter-

state Commerce Commission. 7 ap

The court, however, said at page 347:

‘ : * -

‘*To be. sure, this ‘provision only becomes operative

when securities have to be issued,and would not, of

itself, prevent action by a state commission until such

securities are seen to be necessary * °° *,”’

41

We submit that there is no evidence in the record in any

wise. showing that appellanft will be required to issue any -

securities by reason of the provigipns of the order of the

lilinois Commerce Commission, hence the action of the state

commission was not in any wise. prevented by the prov i-

sions of the Transportation’ Act.

' We respectfully submit that Congress has not invaded

the field and has in no Wise divested the’states of their in-

‘»herent power to protect and safeguard their inhabitants.

Even had Congress enacted a statute conferring regu-

- _ latory powers upon a federal agency this would not, in itself, .

nullify the authority of the states to protect and safeguard

their inhabitants under the police power. Eichole v. Publiony

Service Commission of Missouri, 306 U! S. 268; Welch vw

New Hampshire, 306 U. S. 79; Kelly v. Washington, 302

U.S. 1; Northwestern Bell Telephone Company-v. Nebraska

Railroad Commission, 297 U. 8. 471.

The Northwestern Bell Telephone Company v. Nebraska

Railroad Commission, 297 U.S. 471, case involves an appeal

_~ Arvom a judgment of the Supreme Court of Nebraska affirm-

es ing an order of the Railroad Commission of that State —

directing the telephone company to use for purposes of

accounting a depreciation rate fixed by the state commis-.

sion. “The company contended the commission’s order was’

-.void as in conflict with the Interstate Commerce Act, as

amentled by the Transportation Aet, which conferred upon

the-Interstate Commerce Commission authority to fix depre-

ciation rates.

- It should be noted specfic padidlitory authority was con-

‘ferred upon a federal agency to do the identical thing. which

the state agency Was empowered to do. In sustaining the

power of the. state commission the court said:

‘* Both the language of the statute already quoted,

and the nature of its subject matter indicate that it

contemplated no restriction of state control over de-

42.

preciation rates until the Interstate Commerce Com-

mission had prescribed its own rates. State commis-

sions were not deprived of power to fix rates for

intrastate. telephone service, in determining which

rates of depreciation chargeable to operating expenses _

_ play an.important part. See Lindheimer v. Illinois

°Bell Telephone Co., 292 U. 8. 151, 78 L. Ed. 1182,

54 S. Ct. 658. The ‘statute did not envisage an im-

mediate adoption of depreciation rates by the Inter-

state Commerce Commission. A long period might

elapse, as the event has shown, before the Commis-

sion would be prepared toact. It cannot be supposed

that Congress intended by the amendment to Chap.

20: (5). to preclude all regulation, state and national,

‘of depreciation rates for telephoné. companies, for an ~

indefinite time, until the Interstate Commerce: Com:

mission could act administratively to ‘prescribe rates.

* * © The Commission has thus prescribed no de-

‘ preciation rates as required by Chap. 20 (5). No

. exertion of federal authority, through the Interstate

-Commerce Act, Chap. 20 (5), (6), (7), the order of

the Commission or otherwise, forbids the making of

entries in. appellant’s. accounts or the doing of any-

thing that is by the state commission’s order directed

to be done. Pending ‘action by the Communications ~

Cominission establishing depreciation rates for tele-

‘phone companies, state control over such rates re:

niains unimpaired.’’ ( Italics supplied. ¥-

In Kelly v. WW ‘ashington, 302 U. S. 1, the Supreme Court

of the United States sustained thé statutes of the State

of Washington providing for the regulation of tug boats

over navigable waters of the United States, notwithstand-

ing numerous federal statutes alsd providing for the in-

spection of various, kinds of boats. and vessels. In its

opinici the Court stated at pages 9 and 10: |

“Under our constitutional system, there necessarily

%,

remains to the States, until Congress acts, a wide-range

_ for the permissible exercise of power appropriate to

pe

~

43

.° their territorial jurisdiction although interstate com-

merce may be affected. Minnesota Rate Cases (Simp-

son.v. Shepard) 230 U.S. 352, 402, 57 L. Ed. 1511, 1542,

33 S. Ct. 729, 48 L. R. A. (N.S.) 1151, Ann Cas. 1916A,

18. States are thus enabled to deal with local exigencies

and to exert in the absence of canflict with federal legis-

shall go. There is no constitutional rule which com-

_ pels Congress to occupy the whole field. Congress may

- ¢ireumscribe its regulation and occupy. only. a limited

field. When it does sv, state regulation outside that

limited field and etherwise admissible is not forbidden

_or displaced. The principle is thoroughly established

‘that the exercise by the State of its police power, which -

would be valid if not superseded by Federal action,

is superseded only where the repugnance-or conflict

és so ‘direct and positive’ that the two acts cannat ‘be. |

2 3?

reconciled or consistently stand together’.”’ (Cases

cited.) (Italics supplied.) :

In the case of Eichholz v. Public Service Commission of

~ Missouri, 306 U. S. 268, the Missouri Publie Service Com-

mission canceled a certificate of an interstate operator for —

failure to comply with ‘certein regulations of the State.

At the very moment the interstate certificate was canceled

the trucking company had applied to the Interstate Com-

. merce Commission for an interstate permit under the Fed-

eral Motor Carrier Act. The Supreme Court sustaiied -

the action of the State commission and said (p. 273):

‘*When the commission revoked the permit, the Inter- °

state Commerce Commission had not. acted upon ap-

pellant’s application. under the Federal Motor Carrier

Act and meanwhile the authority of the state body toc

- take appropriate action under the state law to enforce

_ reasonable regulations of traffic upon the state high-

ways had not been superseded.’” * ‘cas ng

——

“ ——_—_———

eet

-And at page 274 the Court said:

**We may assume that Congress could regulate inter.

state transportation of the sort here in question, what.

ever the motive of those engaging in it. But in the

absence of the exercise of federal authority, and in

the light of local exigencies, the state is free to act

in order to protect its legitimate interests even though

interstate commerce { is directly affected.’’ -

In. the case of Welch v. New Hampshire, 306 U. S. 79,

the Supreme Court of the United States passed upon the

validity of a.statute ef the State of New Hampshire which

provided for the control of the hours of se of drivers

“of motor carriers. It was contended that the provisions

of the New Hampshire Act were superseded by the Federal

Motor Carrier Act, 1935, and regulations prescribed under

jit_ by the Interstate Commerce Commission. Under the

ptovisions of the Act the New Hampshire Commission had

suspended a certificate of the appellant for failure to com-

ply with¢its orders gov erning the hours -of service of its

-- drivers. a :

In sustaining the order of the New Hampshire Commis-

sion (entered after the enactment of the Federal Act, but

before the Interstate Conumerce Commission had adopted

rules-and regulations under it), the Court stated at pages

84 and 85: ;

“The sole question is whether Congress intended

that from thc time of the federal enactment until ef.

fective action by the commission, there should be no

reguation of periods of continuous operation by. driv-

ers of motor vehicles -hauling in interstaté commerce. .

Our decisions provide no formula for discovering im-

plied effect of federal statutes upon state measures as

that under consideration. * * * The rule applica-

ble is clearly stated in Hlinois C. R. Co. v. State Pub.

Utilities Commission, 245 U. S. 403, 510, 62 L. Ed.

425, 58 S. Ct. 170, P. U. R. 1918C, 279: ‘In construing

Be Age

ow ° >

federal statutes enacted under the power conferred by

. the commerce clause of the Constitution * * *° it should.

never be held that Congress'intends to supersede or

suspend the exervise of the reserved powers of a state,

even where that may be done, unless, and so far

as its purpose to do is clearly manifested." We have

frequently applied that principle."* (Cases cited.)

"In view of the facts in this case and the legal principles |

applicable thereto, we respectfully submit that Congress

has not taken over the regulation of furnishing cabooses

and that the order of the -Iinois Commerce Commission

is not repugnant to or in conflict with any action taken by

the Federal Congress.

: Il.

The axpense to which appellant will be put in order to

comply with the Commission's order is not so exorbitant,

when compared with the obvious benefits to accrue there-

From, as to deprive appellant of its propertu without duc

‘process of law.

| " Under Point D, appellant intents that the order of the

Minis Commerce Commission is invalid in that the ex-

pense of compliance therewith will be so exorbitant, when

compared with the benefits.to accrue therefrom, ax to

deprive appellant of its property without due process of

law in violation of the 14th Amendment, to the Federal

Constitution.

Of course we have no quarrel with the general principles,

_ sustained by the cases cited b} appellant, that a State can-

not, under the gyise of the police power, pass any arbitrary

or unreasonable law in violation of the constitutional limi- .

- tations; or that

_ “a strong public desire to improve the public condi-

tions is not enough to warrant achieving the desire by a

46

shorter cut than the constitutional way of weyes

for the change."’

or thai - -

‘‘whether this is done with or without due process

of law depends upon the special circumsta

—

This, however, does not in any wise minimize the power

’ and duty of the State to acf under its police powers subject

to such limitations for the protection of life, health and

safety of its inhabitants. oe

-As the Supreme Court of the United States aptly said,

in Panhandle Eastern Pipe Line Co. v. State Highway Com. -

‘mission, 294 U. S. 613, cited by appellant, referring to the

police power of a State:

‘‘It is the governmental power of self-protection and

permits reasonable regulations of rights.and property

in particulars essential to the préservation of the com-

munity from injury."’ - \

We submit that the order in ‘question i is reasonable atl

_ necessary to the-preservation of the life, health and safety

of the trainmen and the public and does not violate any of

the constitutional limitations. +e

A careful examination of the numerous cases cited by

counsel for appellant fails to disclose anything to the con-

trary. Many of them -involved different facts and there-.

fore are not applicable to this case. In cases. where fhe

facts were. analegens, we submit they fully sustain’ our .

position.

in. determining whether the order entered by the Illinois

Commerce Com omyission is reasonable or arbitrary or in

violation of the due process clause, ‘it becomes necessary

to examine the facts and circumstances i in this case at some

length.

47

hi tp et phon, fotos seforio the evidence cf the Inala

Commerce Commission's expert. = =~

Mr. R. B, Thomas testified that he was employed as

Chief Railroad Inspector by the Tijnois Commerce Com-

mission for six years; that he was a high school graduate,

graduated from the Michigaa College of Mines, with the

degree of Bachelor of Mines ; that he had about eight years

experience with railroads, that is railroad construction,

and three years in highway construction; that in his present

capacity he has had occasion to make investigations and take _ .

photographs, make reports and present evidence before the

Commission ; and had occasion to observe and make studies

with reference to switching operations and transfer runs:

That, he was familiar with the preparation and interpreta-

‘tion of blue prints and plans; that he prepared approxi-

mately 1,000 plans and many thousands of blue prints. That

he took thousands of photographs and interpreted them.

That he took photographs in connectign with his investiga-

. tion in the present case. That he has had occasion to pre-

‘. pare estimates of cost of railroad facilities. It is interest-

ing to note how thoroughly Mr. ‘Thomas prepared his re-

ports, as shown under the Commission's Exhibits 1, 2 and 3.

It should be noted that counsel for appellant never ques-

tioned the qualifications of ae expert at the trial of this

cause (Tr. 2-120).

Mr. Thomas testified that he apent beieeen ten and fifteen

days in the yards i in making the investigation with reference

to his first report, Commission's Exhibit 1. It must also’

be borne in mind that this expert used ‘‘caboose handling

time’’in computing the figures in the reports and in esti-

mating the crew’s- wages, and testified that the actual delay

time would be considerably less. Caboose handling time is

. all of the time consumed in the handling of the caboose.

That is to say, an engine picks up a caboose, runs around

- a train, couples the caboose on‘@ train, returns and couples

48

to the head end of the train. If it took 11 minutes to make_

that move, that would be handling time. The caboose .

delay time “‘might be less because while the engine was |

picking up the caboose and coapting the same and return- .

tng, other delays might have occurred during that-11 min-

utes, and consequently the eaboose handling time would not

alway: s be a complete delay."* In other words,.if no caboose

were used, there might be a delay of 8 minutes because of

the coupling of the air or other things that had to be done

Y that the actual caboose delay time therefore: would only

3 minutes, though the expert charged the entire 11 minutes

to caboose time (Tr. 2-126).

Actual cabouses were used in the test runs (Tr. 2-126).

The reports dealt with clearances, description’ of shelter

cab 4¥ caboose, flagging equipmment and the position. of

the rear brakeman or switchman, with.questions of: safety

and comfort (Tr. 2-122). On cross-examination by counsel

for appellant, Mr. Thomas further testified that if they had

had the use of many cabooses instead of the one. used, one-

third of the actual time. could be saved, namely, time shown

on page 22 of the report as T $4,828.32, would be re-

duced approximately one-third (Tr. 2-129). -

‘Mr. Thomas furthet testified that the maximum time

shown in the report was based upon allowing extra time

for ohe contingency or another, such as a yard or track

being blocked (not caused by the caboose), and that it was

not based on actual clock time. It was Saety a guess .

(Tr. 2-129).

Mr. Thomas’ initial investigation covered the €. D. Yard

(Tr. 2-121}. Mr. Thomas then continued the original inves-

tigation to-cover Madison Yard and Wiggins No, 2 Yard,

and the runs originating in those yards and moving to points

within Illinois, introduced as Exhibit 2-(Tr. 2-131). Mr. |

Thomas then continued his investigation to cover the third

section’ of his report, which was the ads bridge and Mer.

’ chants bridge within the confines of the State of Ulineis

(Tr. 2-136). The report covers various photographs show.

ing physical structures, clearances, surroundings, transfer

moves, location and manner in which the ewitchmen ride

those rans on the Eads and Merchants bridges. He also

gives a summary of the number of cabooses covered by the

report, also the amount of crew wages for acteal erew

handling time (Tr. 2-138). .

_. In discussing the operating ex he said wouk!

- apply to 2% times the crew wage, it hot necessarily

’ mean that all of the operating expense Was an added em:

pense, because it was reasonable to assume another

‘dent would not be required, nor another yard master, or an

additional interlocking man, as the serviees of those men

were already included in other operating expense; that the

added expense would be the coal, water and ofl that ix

required for the movement of the caboose and the main.

_ tenance of the cabogse, and that the approximate amount

.@ 2 times the crew wages &s operating expense simply

* meant that\there would be a paper shift or a record shift of

. the allocation of various costs that were used in making wp

the operating expense (Tr. 2-135).

Mr. Thomas testified that there were two choss overs on

’ the approach to the Eads bridge in Mlinols (Tr. .-141), and

Mr. Charles: Jenkins testified (Tr. 2.28) that there was an

approach to the Merchants bridge im Tiinois, whieh was

never rebutted.

Mr. Thomas testified that in photograph #2 (Tr. 2.055),

the man is standing on top of a drawbar and has a hold of

the ladder or brake staff of the car, There is a hazard in

standing there, and he then referred te « detail of ‘the

drawbar, the footing and the hand-holds, and the position

in which the man has to stand whgn riding in suck « position.

+

»

The method in which be has to secure bimeelf is not very

good, and the footing that he has is not safe, and thes

hazards or dangers could be eliminated by providing a

caboose for the man to ride in (Tr. 2-141).

Mr. Thomas goes into detail concerning the numeronu:—

vertical and horisental insufficient clearances and equi)

ment used on the bridges and testified to the hazards and

unsafe c..ditions under which the men were compelled |»

operate. Asan illustration he selected the last car which wa-

15 feet in height and from the diagram of the situation

shown on the Mads bridge be found the vertical clearance-

te be 10° 2", so that the distance between the top of the

running beard and the fixed obstruction is 1° 2". The dix

tance of I’ 2° is hardly eufficient room for a «witchman to

stand on the top of this car. Hence the aced of a caboose to

safegeard the cory life of the swurvtchman. :

He further mentions that taking imto consideration th:

Smallest car that was observed at that point, which was 12

10” in beurht, the clear distance between the running board

and the fixed obstruction was 3 4". The distance of

4” is hardly sufficient room for a «witehman to stand on

the top of ewen the emmallest car. Hence the need of «

caboose.

He further testified that taking the narrowest car that

was observed, which was 10 in width, one-half of the width

of the car is 5 feet and Rt will extend 5 feet each way

from the center line of the track. Deducting 5 feet or one

half of the width of the car from the distance to the north

of the north track, which is @ 544", we have I’ 544” clearance

between the side of the car and the fixed obstruction. The

distance of 1° 5%” clearance between the side of the car and

the fixed obstruction is hardly enough room for the switch-

man to stand on the side of the car. Hence the need for a

caboose.

_ He further testified that taking the widest car observed,

which was 10” 10°, the distance will be reduced by 5 inches

and the clear distance will then only be 1 4". . The distance

of 1 \” is hardly sufficient room for the switchman to stand

on the side of that ¢ar, Hence the need of @ caboorr (Tr.

2-145).

He testified in detail about the insufficient clearances and

also nientioned that the clearances did not take into account

any sway or rocking of the cars that occurs during the time

the cars are in motion, which appeared to be approximately

2 inches of sway or rocking of the cars at the rate of «peed

those trains were being operated (Tr. 2-146). It should

be borne in mind that Mr. Thomas’ testimony was never

rebutted except for a general denial.

He further testified that the clearances were inadequate

and insufficient to guard the safety of the ewitchmen (Tr.

2-147). The switchmen were then compelled to ride on the

rear drawbar of the car, as wil] be noted from examination

of the photographs showing the hazards and dangers (Tr.

* 2255, 257, 258, ete). The inenfficient clearances can be

observed from the examination of the photographs (Tr.

2-256, 258, 260, 261, ete).

The record discloses without contradiction that at every

test made there were four men checking: a member of the

Brotherhood, Mr. Butler (assistant to Mr. Thomas), Mr.

Thomas, end a official of the Railroad (Tr. 1-201).

The evidence clearly shows that an runs other than the

bridge runs the rear switchman was compelled to ride the —

drawbar at the trailing end of the rear car. If the end of

the car on which he was riding happened to be the end that

was provided with a brake staff, the switchman would

crasp it A® a means to secure himself in place, and if not,

he would reach farther toward the side of the cat in order

to reach the end ladder or hand-holds (Tr. 2-227).

52

With the use of a caboose the flagman can take his posi-

—tion in such caboose during the course of interchange or

transfer operations, which would preclude’ the necessity of

his riding on the drawbar, top or-sidg of the rear ear (Tr.

2-227).

The accommodations provided by caboose or shelter car

include heat, shelter from. the elements, a place to store

flagging and other equipment, lunches, wearing: apparel,

and the like (Tr. 2-227).

In the summary of Mr. Thomas’ report it appears that

the annual crew wages for handling eabooses would amount —

to $27,777.22 (Tr. 2-266) ; that the number of cabooses re-

quired would be 36 (Tr. 2-266) at a cost of $1,233.69 each

(Tr. 2-210), or a total of approximately $44,000.00.

It should be noted that the cost per caboose at $1,233.69

is not the figure estimated py the Commission’s Expert,

but is the cost as estimated by the appellant itself. (Tr.

9 -241).° -

As to caboose delay time for round trips, the record

shows conclusively, from actual tests made by the Com-

- mission’s Expert, in conjunction with an official of the

railroad, that the said delay time was nothing in one in-

stance, two minutes in two other cases, eight minutes in

one case, tpn minutes in another, and seventeen minutes in

‘a further one (Tr. 2-294), ard that as to the other runs, the.

- time’ was practically the same (Tr. 2-246, 247, 264).

The adtual cost of the caboose was given by the railroad

itself, ard caboose time delay was checked by an official of the

railroad. on all tests, and the crew wages are known to the

officials of appellant. The testimony of Mr. Thomas was

not refuted and Mr. Thomas was not even cross-examined

on these points.

_ Now let us see where and how Mr. ‘Davis, superinitendént

of thé appellant, got his figures of $400,000.00; divided into

$150,000.00 for new cabooses and $250,000.00 on. account

53

of added expense due to delays, ete. Mr. Davis ina general

way testified to a 40-minute round trip delay as against the

(‘ommission’s Expert’s actual test made in conjunction

-with an official of the appellant, showing the delay io be

from nothing in one instance and then from two minntes to

seventeen minutes in other instances. He stated that this

delay would cost $10.00 each round trip and that if cabooses

were granted the cost for the first year would be the great-

est, $400,000.00. That is all the testimony in this connection

and was made after objection by counsel as follows :

“Mr. Schwartbach: I object to that as being a con- .

clusion. There is no foundation laid for it” (Tr.

2-114). «-

" ‘There was absolutely no basis for the 40-minute delay

or cost of $10.00 per run.

Counsel for appellant would have us believe this kind of

cvidence as against the testimony of the Commission's Ex-

' pert whose tests wére at all times made in conjunction with

— an official of appellee. Mr. Davis admitted (Tr. 2-197) that

there was an official of the Terminal with Mr. Thomas at all

times when the tests were made and stated that Mr. J. A.

Matheson, Jr., was the official who made all the tests’ with

Mr. Thomas and that a report of the test runs was made

to appellee's office.

_ Mr. Davis’ testimony is based upon hearsay as illust rated

, when he said (Tr. 2-198) :

“When I say there is a delay of one hour in the Penn-

sylvania yard, I do not know that of my own know ledge.

} am taking their word for it.”’ ©

Mr. Davis admitted that the appellant furnishes about 31

cabooses now, showing the necessity of cabooses to properly

protect the safety of the switehmen (Tr. 2-113).

‘Mr. L. E. Knight, witness for appellant, who according

‘to counse for appellant, corroborated Mr. Davis, admitted

that he kept a record of every caboose put on and'‘that he °

|

54

timed everything-from the time the engineer was riding

until the work was completed (Tr. 2-194). Mr. L. Be Knight

was very’ indefinite on the caboose delay, stating it, would

take 12, 15, maybe 20 minutes, then stated six to 12 minutes

(Tr. 2-183, 184).

-Mr..Walter H. Rolen, another witness for appellant, wha

ix supposed to have corroborated Mr. Davis, on cross-exami-

nation changed his testimony by admitting that the only

caboose delay would be the time the engine would require to

xet the caboose, take it and place it, and that coupling up _

the air-brakes would not be charged to caboose delay (Tr. —

2-175), ard that it would take the engine. three or- four

minutes to run both wavs of a 45-car length (Tr. 2-176).

Mr- Leslie Ws Cheatham, a switchman since May, 1920,

testified to the various hazards from Madison yard to

Granite City (all within Illinois); shoving down the rail:

road, which is very hazardous, as follows:

**We shoye down and cannot see. The head man can- ©

not see the rear man or flagman. I have had cars break

off and roll down and it was impossible to stop them. - 1

* have been on that run and Wad to run ahead of the cars:

ty protect the publie. We do not have air brakes and _

ceuplings on these runs all the time” (Tr. 2 “OA, 35).

He Surther testified that if they had a caboose on this

run, with air brakes properly working, the rear man would

he able to stop in-case of emergency (Tr, 2-35). This is just

one instance of’ ihe dangers not only to the switehman but :

to the public. : ane

He further testified to other runs, showing various haz-

ards including the insufficient vertical and berizontal clear-

ances other than the bridge runs within thé confines of the-

estate of Mlinois, ‘tlie dangers of which could be eliminated

by the use of a cabopse (Tr. 2-35, 36). ae ;

The record is replete with. testimony showing the vari-

- ous hazards and dangers incurred by the switchmen in the

oo

x . : .

performance of their duties and the necessity of cabooses

to-eliminate said hazards -and dangers, including therein

the insufficient vertical and horizontal clearances on all runs

within yards in the State of Illinois and over the Eads and

Merchants bridges Within the confines of the State of

Tilinois. aor oe ;

Testimony aiken these lines was furnished hy Ww iHiam

-O. Satterfield, a switchman for over 16"years and assigned

to the C; D. yard (Tr, 2-45 to 59, inclusive). He testified

that the clearances and other hazards, even those other

‘than the bridge runs, could be eliminated by a c: aboose’

which would eliminate the hazards’ incurred by close clear-

ances, of signals, bridge signals, ete.; and ‘would afford

better protection in observing the train, in eutting off and °

‘throwing switches; that it would prevent the switchmen

from being knocked off the top of the cars from insufficient

clearances or when the train is making sudden stops or

sudden. starts; that it would afford protection in the event

the. trains break off on stiff inclines, for with a properly

equipped ‘caboose you would have the .protection of air

brakes; that it would afford the protection of being better

abie to do the work on account of inclement weather, such:

as sleet, snow and ice, which sometimes are on the grab

irons of the ¢ars or on the tops of the cars, when they have

to get down to throw switches; that it would not be neces-

‘sary to ride the drawbar, or on the sill where the drawbar

_is fastened onto the car, that being a dangerous position

under any conditions of weather. It would allow the switch-

‘man to prevent anyone from running -into the hind end

of the train when you had to stop on curves where you

would not. be observed for long distances: Property equip-

ment such as. first xid, could be carried_in the caboose in

‘ease of emergenes ‘Tr. 2-56, 57). re

The evidence a.so shows that other railroads operating

runs paral: el with the teaponeent « and railroads using ;

ff.

56

‘some of the same ee of the appellant operate with

cabooses.

To the same effect as these other witnesses was the

testimony of Fritz Rousch, a switchman for eighteen years

(Tr. 2-71), John Cox, a switchman since 1925 (Tr. 2-72),

George H. Cox, a switchman for sixteen years (Tr. 2-75),.

Thomas Strike, a switchman for twenty-one years (Tr. 2-81),

William A. Bruce, a switchman for 49 -years (Tr. 2-84),

R. F. Blackman, roadman for 29"years (Tr, 2-85). It is’

interesting to note that the testimony of the appellant’s

witnesses was all general, whereas the testimony of expert

witness and. witnesses for the appellee was very specific

_ and definite.

We respectfully submit that it is not only the accidents

that have actually occurred that prove our contention, but

the potential hazards and the dangers and hazards to which

the men are and will continue to be subjected.

It has never been contended that appellant was insolv ent

or that the outlay of any sum for the purchase of additional

cabooses: would render it insolvent.

oar appellant elects to operate freight trains and employs

switchmen in connection therewith it cannot evade its duty

imposed by law to furnish all reasonable means and methods

to protect its crews against hazards, accidents ard injuries.

-The cost involved we submit is igsignificant compared

to the good: achieved and to be achieted by thé order’ en-

tered by the IHinois Commerce Commission in providing |

for cabooses so as to’ avoid not only the actidents that

occur but also to avoid the dangers and hazards to which

the switchmen are subjected.

In view ofthe facts and circumstances of this case, it

is respectfully submitted that the expense to which the .

- appellant will be put in order to comply with the order

of the Commission is not so exorbitant .when compared

bof ¢

>

ie 57 en

‘ with the great. benefits to accrue therefrom, as to deprive

appellant of its property without due process of law.

4 Conclusion and Motion. _

In view of the foregoing it is respectfully submitted that

the onl¥ Federal questions raised by the appellant are not

* only without substance but have, been repeatedly passed

upon by this Court contrary to the appellant’s position.

The appellees therefore pray that this Court either dis-.

miss the said-appeal for want of.a substantial Federal

question, cr, in the alternative, that the judgment of the

Supreme. Court of the State of Illinois be affirmed by this

Honorable Court at this stage of the proceedings.

Respectfully submitted, ae

Gronce F. Barrett,

Attorney General of the State of

| } Illinois,

Attorney for Titinois Commerce

Commission, one of the Appellecs.

- A. A. Scuwarzsacu,

Atvin: FE, Sterx, ©

Attor neys for the other Appellees.

‘Ausert E. Hawerr, ;

Assistant, Attorney General,

| _ ; Of Counsel.

(1225)

50