Jurisdictional Statement — Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad

ry © \ "SUPREME anna g

iy :

-_ Je

a COURT OF THE UNI STATES

OCTOBER TERM, 19

s BROTHERHOOD OF Locomorive Fimeyen anp Encrsemen,

BzorHerHoop or RarR0ap TERAINMEN, OxpDER or Ratt-

- RoaD Conpuctors AND BRraKEMEN, and SwircHMEN’s

Union or NortH Amenica Appellants

Cucaco, Rock Istaxp ap Pactric Raruzoap Company,

THe Kansas Crry Sournern Raiway’ Company, -

_ Missover Pactrio Rattzoan Company, Sr. Louis-San 4

. Francisco Rarzway ComPany, Sr. Louis Sournwesr- ie

ERN. RAILWAY Company, and Tuz Pexas anv Pacrric

ILWAY. COMPANY. ...........: _ , A ppellées

4

ON APPEAL FROM .

THE UNITED-STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF ARKANSAS |

JURISDICTIONAL STATEMENT

oe | \ les E. Ciememaiai,

. ee 9 711 West Third Street.

| | Little Rock, Arkansas 72201

Attorney for the Appellants

: Of Counsel: .

_ + Rosert D. Ross’

* Joun P. Sizemore

McMart#a, LEATHERMAN, Woops & YouNGDAHL —

Pore, Pratt, SHAMBURGER, Burrato & Ross.

Little Rock, Arkansas

Pie . | > oe

3

8

. o

4

Opinion Below

_ Statutes Involved _:

The Questions are Substantial ,

INDEX

Jarisdietion. aod

Statement

o

. Appendix A Se bes , ao 15

Appendix B Sees One 37

a “CASE CITATIONS

- “Akron, C. & ¥. RR. ¥: Public Utilities Commn,

13

224 N.E, 24 169 (Ohio Ct, Comm. Pl, 1967)

| Chicago, RI & Pac, RR. v. Hardin, 239 F: Supp.

1 (W.D: Ark. 1965), rev. sub nom., Brotherhood )

:. of Locomotive Engmeers v. Chicago, R. I. &

’.° Pac. R.R., 382 U.S. 423 (1966) — 3, 5, 6, 11

; Chicago, R. 1. & Pac. Ry.-v. opens 219 U.S.

453 (1911), ; 5

Day-Brite Iighting, Inc, v. Missouri, 342 U. gs, ae tk

~ 424- (1952) : ) SD

Ferguson. Skrupa, 372. 8.726 (1963) .. asta

Florida Lime Growers, Inc. v. > 362-U.8.

Ld

a

2

2

3

Question Presented , : 3 nae 3 :

5

mB (1900) é accien ae:

_ A

Joseph E. Seasons & Sons, . Inc. v. Hostetter, i's Bis

384 U.S. 35 (1966) 10

‘Lincbin Federal Lebor Union v. orthwestern or

Iron Co.; 335 U.S. 525 (1949) 10

Missouri Pac. R.R,.v. Norwood, 283 U.S. 249 (1931);

13 F. Supp. 24 (W.D.Ark. 1933), affmd., 290 . ~.

U.S. 600 (1933) ~ a | 3, 6, 7, 8

- New York Cen, R.R. v. ; Beloit, 259 NYS: 2d 76

(Sup. Ct. 1965), affmd., 282 N.Y.S. 2d 68 _

(App. Div. 1967) ' | 11, 12, 13

Olsen v. N ebraska, 313 U.S. 236 (1941) ee | 10

‘Public “Service Commn. v. New York Cen. R.R., 216

N.E. 2d 716 (Ind. 1966), cert den., 385 U.S. 943

» es. 1g, 13

'/ Southern Pac. Co. ‘v. Arizona, 325 U.S. 761 (1948) ons 5, 6

‘Spielman Motor Sales Co..v. Dodge, 295, v. - *

(1935) 2 , oe

“St. Louis, I. M. & 8, Ry. v. shone 240 U.S.

618 (1916). a Ssieedcteih 6

United States v. Carolene Penihiat Co., 304 U. Ss

° 144 (1938) ..... ee

West Coast Hotel Co. v. Parrish, 300 U.S. 379 asst). sate — a

Williamson v: Lee Optical, 348 U.S. 483 (1955) ....

——

a

Ae

on

@

oS

* phen cau OF THE we san

° # “ae . 4

~ F 5 a

- &

‘ BrornerHoop or Locomotive Firemen anp ENGINEMEN,

BrorHeRHoOp or RatiRoip TrarnMEn, OnvER or Ran

©. °° Boap Conductors anv BraxemeEN, and SwitcHMEn’s

- Unton or Nogta AMEzica ...... Appellants

| . oe : i? 7

_ Cacao, Rock Isuanp . AND Pacrtrc anaihis Company, .

. Tue Kansas Crry SourHERN. Ret.way Company,

-Massover Paciric RatuEqap Company, Sr. Lovss:San

_ FRANCISCO. RatLway Company, Sr. Louis So; “THWEST- “*

" gen Rarmway Company, and Tue Texas AnD Paciric

Ranway Company > eee ) Appellees : ©

s-

a ae

ae ON APPEAL FROM fe

THE UN ITED STATES DISTRICT COURT FOR THE

WESTERN. DISTRICT OF ARKANBAS - :

“> eran” ans

ae JURISDICTIONAL STATEMENT |

‘ge aisle appeal frome the ew of the United.

_ States District ourt for the Western Distrigydf Arkansas

~ entered Octoker: 2, 1967, enjoining enforcement of Ant.

_ Stat. Ann. §§ 73-720 through 722, 73-726 through 729 (Repl.

’ 4957), and submit this Statement to show that the Supreme

Court of the United States has jurisdiction ‘of the appeal —

and thet a substantial federal ee is ‘presented.

Pa

x

“@a . 6

~ OPINION BELOW

- The decree and memorandum opinion of the District |

Court for the Western District of Arkansas, Hot Spri

Division, are not yet — Copies are set em: as

Appendix A hereto.

| JURISDICTION

This action was bik eisthee | 28 U.S.C. §§ 1331, 1332,

2201, 2202 and 2281 ‘through 2284 (1964) to invalidate stat-

utes df the State of Arkansas regulating the composition-~

‘of certain railroad crews. Grounds alleged for such chal-

~ lenge included various provisions. of the. United States

Constitution ; a three-judge court was empanelled. On

March 5, 1965, the court granted summary judgment for

~ the plaintiffa ; ; Judgment enjoining the enforcement of the

state statutes was filed on March 8, 1965. Chicago, RI. é

Pac. R.Rwv. Hardin, 239 F. Supp. 1 (W.D. Ark. 1965).

| ‘The Distria: ‘Court ‘decision was reversed by. the

Supreme Court of the United States. Brotherhood .of Loco-

_motwe Engineers v. Chicago, R. I. é Pac. R.R., 382 U.S.

423. (1966).. The case was remanded to the lower court

' “for consideration of the. constitutional issues left unde-

cided by its previous judgment.’’ 382 US. at 438.

- After trial and argument on the remaining issues, the

District Court again enjoined the enforcement of the state

statutes on October 2, 1967. The final decree held the chal-

- Jenged legislation unconstitutional ‘as we the Due

Process Glause.of the 14th Amendment . . . and as being

an titutional buvden on interstate commerce prohib-

| ited by the Commerce Clause. . ta

N tice of appeal. was filed by the sendinite and the

State of Arkansas on October 31, 1967, in'the United States

District Court for the Western. District Arkansas,

>

3 .

Qe. es ae:

. Durisdiction of the Supreme Court to review this de- ©

cision by direct appeal is conferred by 28 U.S.C. § 1253 -

(1964). The following cases sustain such jurisdiction :

’ Flovida Lime Growers, Inc. v. Jacobsen, 362 U.S. 73 (1960) ;

' - Spielman Motor Sales Co. v. Dodgé, 295 U.S. 89 (1935).

See also Brotherhood<of Locomotive Engineers v. Chicago,

R. 1. é Pac. R.B., 382 U.S. 423 (1966) ; ; Missouri Pac. RR. v.

Norwood, -283 U.S. 249 (1931). se :

STATUTES INVOLVED

Axx. Srar. Arn. §§ 73-720 through 722, 73-726 through

_ 729 i 1957), are set forth as inicio B hereto,

¢

QUESTION PRESENTED ie

In view of five previous validating decisions of the,

Supreme Court, have conditions of Arkansas railroading

80 changed that the United States Constitution now deprives

the ‘State of Arkansas of power to enforce aspects of its

railroad safety laws which regulate the employment com-

plement of certain freight and switch train crews sad

ating in the state? |

4

STATEMENT

4"

The statutes challenged: in this case were passed by |

the General Assembly of Arkansas to delineate minimum

train crews for certain = of railroad operation in

the state. .

ARK, Srar. Ann. §§ 73-720 through 722 (Repl. 1957)

require a minimum crew of an engineer, a fireman, a con-—

ductor and three. brakemen for freight trains, except for

small companies and short trains. ARK. Sraz. Ann. §§ 73-

726 through 129 (Repl. 1957) require « minimum crew of

an. engineer, a fireman, a foreman and three helpers -for

- switch trains operating across public crossings in large

‘communities, except for small companies.

Six large interstate railroad companies inneeila this

action before a three-judge court in the Western District

of Arkansas on April 10, 1964. Their complaint sought

an injunction against enforcement of the statutes applicable -

_ to freight and switch crews, as violative of the Fourteenth

_. Ameridment and the commerce and supremacy clauses of the

United States: ‘Constitution.

The complaint conceded that the Arkansas statutes —

have been upheld in the past against similar contentions,

but alleged that changes in operating conditions and. ex-—

panded federal occupation of the field make prior holdings

_ inapposite. The primary: basis for the latter argument was

the 1963 passage of Public Law: 88-108, 77 Pe. 132, 45

U.8.C. following § 157.. (1964).

Intervention was granted to five operating brother-

_ hoods;:unions which represent several thousand employees

_ © of the. plaintiff railroads in Arkansas. The brotherhoods

_ and the Attorney General of Arkansas denied all vital alle-

gations of the complaint, and alleged. that the challenged

_. statutes protect the public safety in.a manner. within the

, power of the state. to effectuate. Discovery proceedings

egos fewer

— THE QUESTIONS ARE SUBSTANTIAL

were suspended upon the filing by the railroads of a motion

for summary judgment based upon supremacy clause, ¢om- ©

merce clause and equal protection issues. The supremacy

clause contention was found sufficient, the court holding

that the Arkansas statytes were ‘‘in substantial conflict .

with Public Law-~ 88-108 ... and the proceedings there-

under, and are therefore anenforseable. sia

The Supreme Court. reversed, finding that ities

did not intend to supersede the state minimum ‘crew laws.

Brotherhood of Locomotive Engimeers v. Chicago, R. I. d

Pac. K.R., 382 U.S. 423 (1966). The Court noted that a

three-judge court was justified in view of the various con-

stitutional contentions of the railroads, and found a dis-

- crimination against interstate commerce argument by the

railroads ‘‘ without merit’? on the record before it. 382 ” 8.

at 428, 437-38. :

On October 2, 1967, after full evidentiary pocililidin

- by. all parties, the District Court again invalidated the

statutes. On October 21, 1967, Mr. Justice Byron R. White

. ordered the injunction stayed — the ——— of

the appeal by this Court.

1. This is the sixth time that the half-century cam-

_ ~paign of railroad companies to eliminate the Arkansas laws

‘‘providing for full train crews”’ has reached the Supreme

‘Court. See Southern Pac. Co. v. rected 325 US. 761, 779 ?

~ (1945). A

7 Shortly after the passage of: the full rig crew act

in 1907, a multifarious challenge to its constitutionality

‘was considered by this Court. The statute does not, it was

held, unconstitutionally regulate commerce, establish irrele-

vant classifications or deprive the railroads of property

without due process of law. Chicago, R. I. é Pac. Ry. v.

Arkansas, 219 v. §. 453 (1911).

6

: “Undaunted, the. railroads launched substantially the

same attack on the 1913 Arkansas full switch crew statute.

Again, and more summarily, this Court ¥ejected their con-

stitutional contentions and upheld the a ‘St. Louts,

1M. & 5. Ry. v. Arkansas, 240 U.S. 518 (1916).

It was fifteen years before the next invalidation effort.

The railroads argued, unsuccessfully again, that changed

operating conditions and new congressional action gave

substance. to their ‘due process, equal protection, commerce

and supremacy clause contentions. Missouri Pac. R. R. v.

Norwood, 283 U.S: 249 (1931); 13 F.Supp. 24 ste saoaue

: 1938), affmd., 290 U.S..600 (1933): wn

The Arkansas full crew law decisions were cited with

approval i in Southern Pac. Co. v. Arizona, 325 U.S. 761, 779

(1945) ; the next phase of the railroad campaign featured

\- adifferent tactic. In 1958, an act to repeal the three Arkan-

sas full crew laws was initiated for popular vote. The peo-

ple were no more persuaded by railroad entreaties than

had been the legislature and the judiciary; Arkansas voters

retained full crews by a margin of 162,748 to 130,465.

The railroads returned to the courts. On their only

really novel contention, preemption by Public Law 88-108

of 1968, District Court concurrence was reversed by this

Court. Brotherhood of Locomotive Engimeers v. Chicago,

R. I. @ Pac. R.R., 382 U.S. 423 (1966).

| The District Court decision on remand again revitalizes

the long railroad campaign. If it should be upheld, a

cardinal consequence must be that perseverance generated

by apparently endless ‘resources can validate Previously

invalid constitutional contentions. _ 3 pe

2. ‘The memorandum opinion of the District Court j is

not that careful factual appraisal which commands appel- -

late — dar

7

It is suggested that the Norwood affirmance by a

Supreme Court which saw ‘‘no reason to disagree with the —

_ determinations of fact reached by the District Court’’ sup-

plies analogy for the instant case. See Missouri Pac: R.R. °

v. Norwood, 290 U.S. 600 (1933). Appellants agree that

consideration of the earlier process is valuable now, but

~ only because of its startling contrast, | |

InN orwood, the District Court undertook an extensive

evaluation of particular evidence on particular conditions

on particular Arkansas raiiroads. Missouri Pac. R.R. v. .*

Norwood, 13 F.Supp. 24 (W.D. Ark. 1933). Such evidence

on current railroading is available here. Its details are

impossible to summarize in this preliminary. statement, but

their volume and variety are important in a case where any

reasonable grounds fer a legislative a should

suffice. — é :. fe ee

e :

| The brotherhoods and the State of igus presented ;

z facts, for example, on current duties of firemen carrying

out operating instructions, correcting engine malfunctions,

preventing hazardous ‘‘slack action,’’ keeping a lookout,

' taking over for the engineer in ‘the event of emergency

_ disability, relaying switching: signals, and training‘ qual-

ified enginers. The chief railroad witness conceded that

the current duties of brakemen are approximately the same _

as at the time when the Norwood courts found the Askin

statutes er.

Freight cars ‘have little qualitative or enuatibelies

' difference from those evaluated in Norwood except for

greater size and capacity, Improvements in the knuckles

and drawbars of modern trains have been offset by the

' greater stress on the couplings since steam engine days.

The principle of the air brake and much of the air brake

equipment has not changed since’ 1931. Significantly im-

proved rails are not in existence in Arkansas to any note- -

8 Soe | oe

worthy degree. Most Arkansas’ track is ‘‘dark rail-.

road,’’ not governed by any type of automatic signals, Only

5.2%. of Arkansas crossings had signal protection in 1931,

and still only 12.5% were protected in 1966. .

Indeed, much of the evidence establishes that railroad

oe damage potential to the people of Arkansas and their

property is increasing. Trains run about fifty percent

faster than when N. orwood was decided; there have been

substantial increases in their length and weight. In the

same time span, the number of motor vehicles in Arkansas _

has increased by four handred percent; many measures’

‘of population. and property reveal increased exposure to

railroad risk. Especially hazardous is the increase in

- volatile.bulk material handled by the railroads; a derail-

ment now may blow up acity. |

In the face’ of an extensive record of such particulars,

the most direct comment. by the court below on the eviden-

tiary details (that all parties had treated as essential to a

constitutional challenge based on ‘changed ees is the

following paragraph: |

The record before us is extremely voluminous.

It includes oral testimony, sworn statements, de- -

positions, statistical material, documentary evi-

‘dence, copies of various public documents, photo-

graphs and motion picture film. We make no

. effort to discuss the evidence im detail. If the

, mass of material put into the record by the parties,

and we suspect that much that was put im is sur-

- plusage, is to. be. evaluated properly, it is neces-

sary for us to define clearly the controlling issue

before us. (Emphasis added.).

A “‘suspicion’’ that much of the-evidence is surplusage

is totally at odds with the careful examination of all the

evidence anes supported the W orwood District Court opin

|e

‘

e f

>.

ion. ite cannot warrarft summary disposition of this .

by the Supreme Court. “

3.. General observations contained i in n the sade ioae

opinion of the-court below themselves justify reversal.

‘‘Railroading,”’ the court noted, ‘‘is an inherently _

dangerous business.’ ‘‘Some types of ‘accidents may be

connected proximately to railroad crew consists. ...’’ Rail- :

ro ‘accident rates have been increasing’ duvlnd a period

in which national crew sizes have been reduced. ‘‘{MJin-

imum crew consists vary with the facts and circumstances

of particular railroad operations. . . . It may be that in

some exceptional circumstances a crew of. six men or

even more would be necessary for the safety of a particular

+ train movement or switcliing operation. .. .”’

Basic factual contentions by the appellants are that

railfoading is an inherently dangerous business, that some

types of railroad accidents are connected proximately to

-erew consist, that accident rates have increased as crew

sizes have been reduced, and that under at least some.

circumstances he crews specified by the Arkansas statutes

are necessary for safety. Appellants cannot be required

to prove that all railroad accidents are determined by the |

size of the crew, or that the minimum crew is absolutely

necessary under all circumstances for the statutes to be

- upheld.

With the sists of the five .previous Arkansas

fall crew decisions of this Court and analogous constitu-

tional doctrine, factual conclusions of the court below alone

validate the legislative judgment underlying the challenged

statutes. |

i ‘ciety aspect of the Qiipneme. niet full

‘crew decisions of 1911, 1916, 1931 and 1933 is that they

accurately presaged the controlling judicial attitude

towards state economic regulation many years later.

®

‘“‘For protection against abuses by legislatures the

_ péople- must resort to the polls, not to the courts.’”’ Wil-

_ Kamson v. Lee Optical, 348 U.S. 483, 488 (1955). ‘‘Even

-' if the. wisdom of the policy be regarded as debatable and

‘jits effects uncertain, still the legislature is’ entitled to its

- jadgment.”” _West Coast Hotel Co. v. Parrish, 300 U.S.

- 379, 399 (1937). “Where the legislative judgment is

drawn in question, [constitutional inquirigs} must be re- ©

stricted. to-whether any state of facts either known or

~ whieh could reasonably be assumed affords support for it.”’, “

United States v. Carolene Products Co., 304 U.S. 144, 154 |

(1938). See also Joseph -E. Seagram & ~Sons, Ince v. |

nosey, 384 U.S. 35, 46-47 (1966).

' (he safety of the public, thé satiety i of sslineaitel: | -.

and even employment conditions on the railroads are clearly Pao

of legitimate state concern. = | a ae

Our recent ostélene make plain that we do not ie

e "*% ait as a super-legislature to weigh the wisdom of

legislation nog to decide whether the.policy which .

it expresses offends the public welfare. . . ..The

_ Jadgment of the legislature .. . may be a debatable 6

one. It is indeed conceded by the opposition to be

such. But if our recent cases mean anything, they

leave debatable issues as respects business, eco- 4

nomic, and social -affairs to legislative decision.

We could strike down this-law only if we returned

to the philosophy of the. icin Coppage, and

Adkins cases. tt :

eee

| Day-Brite Lighting, fos. y, Missouri, 342 U.S. 421, 423.95 |

.- (1952). See also, on employment questions, Olsew v. Ne- |

braska, $13 U.S. 236 (1941); Lincoln Federal Labor Union == |

v, Northwestern Iron Co., $35 U.S. 525 (1949) ; Teens es

v. Skrupa, 372 U.S. 726 (1963). .

/ | : ea. ie a

‘| see es

‘ SRN 2 | At |

The tone and content of the memorahdum opinion of!

‘the court below indicate that a-legislative judgment was

there ‘exercised. The court found the do@trine of judicial _

-abstention from economic decisions inapplicable because

‘these “statutes have been characterized as safety measures

and nothing else.”’ Yet the court goes on to comment:

-Naturelly, as the transportation “industry has be- -

come moré efficient and competitive, and as equip- ‘

ment and technology have improved, the carriers

have sought to operate without unnecessary. per-

. sonnel. ae

4

| | ae

me the railyoads are to meet this competition

[from other forme of transportation] successfully,

they must make efficient use of their resources

' and equipment and must be free to take advantage

of improved technology ani developments in the

industry. The Arkansas statutes in our view

militate against: that nécessary efficiency and..:

flexibility ; they hamstring the tarriers in the i im-

_ portant field of labor relations. . .

In ‘spite of its curt dismissal ofthe eshteation that the

crew statutes have economic characteristics, clearly the

court believed the — impact to be of sabes signif.

_icance.

Only as a ‘Aman dighilatane’? could-the court conclude

that railroads need protection in ‘‘the important field of

‘- labor relations.’’ Cf. Brotherhood of Locomotive Engineers

v. Chicago, R.I. & Pac. R.R., 382 U.S. 423-(1966). The court

_ found ‘‘no question that most. of the factual material set

~ out in”? reports of administrative bodies in other juris-

dictions ‘‘is accurate,’’ and considered them because ‘the

i underlying issue ebout crew consists’is the same as ‘the

issue. here.”? Cf. New York Cen. RR. v. _Leftowite, 259

ee ee

N:Y.8.2nd ' 76, 92-93 5 (Sup.Ct. 1965), affmd., tee N.Y.8.2nd

* 68 (App.Div. 1967). While still purporting to review facts

and history, the court characterized the —— statutes

as the ‘‘most arduous. -

| - ‘Bvaluations of this kind have been ensigned by thixty

years of constitutional doctrine to the legislatures, not to .

_ the judiciary.

5.. Jurtadiction should be noted because the- decision

below ‘is in flat conflict with the result and rationale of

controlling cases in. other jurisdictions, as well as with

the holdings of this Ome, on the same Arkansas statutes.

The District Court recoguined, for example, that ‘‘a -

‘contrary result was reached”’ in Public Service Comm. v.

New York Cen. R.R., 216 N.E.2nd 716 (Ind. 1966),. cert.

den., 385 U.S. 843 (1966), and New York Cen. R.R._v.

Lefkowitz, 259 N.Y:8.2d 76 (Sup.Ct. 1995), affmd., 282

_ N.Y.S.2d 68 (App. Div. 1967).

“The triaf court discussi6n in New York Cen. R.R. v.

Lefkowitz, 259 N.Y.S.2d 76 (Sup: Ct. 1965), exhibits

thoroughness and precision in’ dealing with due process, —

equal protection, commerce clause and preemption argu-

~ tmaents. As to the commerce clause, the court ¥elied on the

Supreme Court decisions on the Arkansas statutes, South-

ern Pac. Co. v. Arizona, and the fact that there was no

ee evidence that the impact on commerce is any different

now from what it was when those authoritative decisions

i were handed down. 259 ' N Ye S.2d at 107.

as

The court considered two equal protection issues: the

- Mileage classification which determines coverage, and the

relationship between the railroad and other transportation _

industries. The former, it held, was concluded by the prior

latter:

Supreme Doart decisions. 259 N. Y.S.2d at 108. As to the .

re rn re pre a meen @

.

‘ eT ‘ ,

18

That the full crew laws siniiia a" the railroads -

from other ‘competing forms of transportation

may seem unfair, and even unwise, but there are

obvious differences between. railroads and. ber 5

forms of transportation, both i in relation to meth- -

ods of operation and relations to the public, and . |

_ statutes regulating railroad operations do not

deny equal protection of the laws merely because — ..

they do not pnrport to regulate other forms of

transportati

259 N.Y.S.2d at 104.

The court answered the due process attack siinility

as had the NV orwood trial court over thirty years before.

Compare 259 N.Y.S.2d at 104 with 13 F.Supp. at 37.

~The Supreme Court of Indiana, the following ‘year,

- was not as patient with the interminable railroad constitu-

- tional contentions. Public Service-Commn. v.-New York

Cen. R.R., 216 N.E.2d 716 (Ind. 1966), cert. den., 385 U.S.

_ 843 (1966). On the only new issue, preemption by Public

Law 88-108 of 1963, the decision had been delayed until —

the’ ‘Suprertie Court ruled‘in the instant case. 216 N.E.2d

at 720. As to due process allegations, there must be some

_ limit on expenditure of judicial and social: resources; the

| ——— was dismissed without full trial. .

‘In any event the alleged. improvements. in tevh-

nology and operating changes cannot here be used

_ to justify a reduction in appellees work force.

- Such relief, if justified, is properly found in a the

legislature and not the a.

ae N. E.2d at 723. ‘Certiorari, even on the question of per- is

--. mitting evidence, was denied. 385 .U. S, 843 (1966).

. Another recent decision on constitutional stati of .

. full crew laws was issued in Ohio. Akron, C. @ Y R.R. v..

Public Utilities Commng, 224 N.E.2d 169 (Ohio Ct.Comm.PI.

14

: *® ae ‘ ; "

- 1967). The usual contentions of the railroads were rejected

on the bases of the Supreme Court. decisions in the Arkansas

‘eases, and the failure of the railroads to sustain their over-

-whelming burden of showing that the prevailing Supreme

| Coart rales were inapplicable to current practices.

Accepting jurisdiction of this eid will resolve the

conflict between controlling precedent in New York, In-

diana and Qhio as contrasted with the Arkansas ruling

in the instant case.

Appellants believe that the question presented > this

ome: is substantial and of public importance.

Respectfully submitted,

. James E. Younapann .

711 West Third Street .

Little Rock, Arkansas 72201 ©

- Attorney for the seams

Of Counsel:

Roszsr D. —

Joun P. Sizemore

MoMarn, LeatHERMAN, Woops & YounoparL,

Pore, Pratt, SHaMBuRGER, BurraLo & Ross

_ Little Rock, Arkansas ;

‘i

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS:

| HOT SPRINGS DIVISION

.. Cxtcaco, Rock Istanp anp Pacrvio Ramazoap

Company, THe Kansas Crry SourHern Ramway .

Company, Missouri Paairic RarRoap toon hel

Sr. Lours-San Fsancisco Ramway Company,

Sr. Louis Sournwestern Rarway Company, and

Tue Texas anv Paciric Rartway Company. ......Plaintiffs

y - Givil Action No. 944

Rosert N. Harpy, Prosecuting Attorney for the

Seventh Judicial Circuit of Arkansas, and |

W. F. Denman, Jx., Prosecuting Attorney for.

the Highth Judicial Cirenit of Arkansas cameras |

BrorHERrHoop OF Locomotive Ewomnsne, Broruze- ,

HOOD or LocoMmorTivE FireMEN AND Encrvemex,

BrorHERHOOD’ or RarizoaD TraInMeN, ORDER OF

Ramway Conpvctors anp BraKemen, and Swrrcx-

MEN’s Union or NortH AMERICA ....... Intervenors

Berorz Van Oosterxovt, Circuit J udge, and Mrz

and i, District Judges.

¢ ae DECREE

Pursuant to Memorandum Cotten this day filed herein,

it is by the Court. Conswerep, Onperep, ApsuDcED, and

»* ; + . ag

1. That the so-called Arkansas Full Crew Laws, to-wit,

_Act 116 of 1907, Arkansas. Statutes Annotated, §73-720 et.

seq., and Act 67 of 1913, Arkansas Statutes Annotated,

16

§73-726 et seq., be, and they hereby are, declared to be

unconstitutional as violating the Due Process Clause of the

14th Amendment to the Constitution of the United States

and as being an unconstitutional burden on interstate com-

merce prohibited by the Commerce Clause of the Consti-"

tution of the United States, United States. Constitution,

Article I, Section 8, Clause 3.

fart

2. -That the Prosecuting Attorneys of the Seventh and

Eighth Judicial Circuits of Arkansas, their Assistants and

_ Deputies, and the successors in office of the said Prose-.

cuting Attorneys, and the Assistants and Deputies of said

‘Successors, be, and they hereby are, aarpennge enjoined

force said statutes or either of them against plaintiff

herein, ‘to-wit, Chicago, Rock Island and Pacific Railroad

Company, the Kansas City Southern Railway Company,

Missouri Pacific Railroad Company, St. Louis-San Fran-

cisco Railway Company, St. Louis Southwestern Railway ©

Company, and the Texas and Pacific Railway Company, or

_ their assignees and successors.

3. That.the intervention filed herein by the Brother-

hood. of Locomotive Engineers and certain other labor

_ unions representing various classes of railroad employees

| be, and the same hereby is, dismissed.

4a That all parties hereto bear their. own costs.

_. - Dated this 2d day of. October, 1967.

/8/ Martin D. Van Oosterhout

United States Circuit Judge

/s/ John E. Miller

United States District Judge

/s/ J. Smith Henley

_ United States District J udge

i 3 tt + ee. - an rte § ae re rer rae or. PERIL GEILE | PELL ELLIE, IOC OEE BE LOCIEG CN Ee POE SLY SLEEPLESS PLO IIE GN LOE, IE

Aes el eT Me = + ra pseeliens =ilepaes . - = Soeatetal EE LEAN ° —-

-

_ UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS ©

HOT SPRINGS DIVISION.

Cutcaco, Rock Istanp anv Pactric Ramzoap

Company, THz Kansas Crry SourHern Rarway

Company, Missouri Paciric Ramzoap Company,.

Sr. Lovis-San Francisco Raruway Company, —

gq

Sr. Louis Sovrnyestzen Ramway Company, and~ cma.

THe Texas AND Pacirio Rarway Company ——Plaintiffs

. v. : ' Givil Action No. 944 - |

Roseet N, Harpry, ein Attorney for the

Seventh Judicial Circuit of Arkansas, and

W. F. a a , Prosecuting Attorney for .

the Eighth Juditial Circuit of Arkansas .... Defendants

- and , .

BroTHERHOOD or Locomotive ENGINEERS, BroTHER-

- HOOD or Locomotive FrrEMEN AND ENGINEMEN,

BroTHERHOOD oF RarLRoaD TRAINMEN, ORDER OF

. Ramway ConDuctors AND BRAKEMEN, and SwircH-

“MEN’s Union or NortH AMERICA . pore Intervenors

- ‘Brrort Van OosTERHOUT, Cireuit J udge, and name

and Hentey, District J udges.

- js ~ hs &

J. Suirn Hentey, District Judge. i ee

MEMORANDUM OPINION |

By this suit in equity interstate rail carriers operating

in and through Arkansas challenge once again the consti-

tutional validity of two Arkansas statutes prescribing

minimum crew consists for freight trains in road and yard

service. The fwo statutes are Act 116 of 1907, Ark. Stats.,

Ann., §§73-720 et seq. and Act 67 6f 1913, Ark. Stats., Ann., _

- OL ENE IPI OOD LEE LLG EOC ALLELE LOI CETL, AINE OLIN ED ery sii sieiocae land ‘yn aatcteatbeitin

| . .

‘eit 18

§§73-726 et seq. Plaintiffs seek a declaration that the stat-_

utes are violative of the Due Process and Equal Protection

‘Clauses of the 14th Amendment to the Constitution of the

- United States and of the Commerce Clause itself, U.S. Con-

stitution, Art. I, section 8, Clause 3, and they seek an injunc- .

tion against continued enforcement of the statutes. The

defendants are two Arkansas Proseciting Attorneys; five

railroad Brotherhoods representing certain classifications

of railroad employees have been permitted to intervene

and to align themselves with the defendants. The case has

‘“~~been heard by a District Court of three judges, and this

-. opinion incorporates the Court’s findings of fact and con- —

clusions of law. |

The suit, filed in April 1964, seems to have been in-

’ gpired by developments in the railroad industry in the last

thirty or 80 years and by the fact that in 1963, to avert a

' ” threatened national. strike of railroad workers, Congress

adopted the Joint Resolution of August 28, 1963, P.L. 88-

108, 77 Stat. 129, which provided in substance that the seri-

ous dispute between the rail carriers and the Brotherhoods

-about crew consists should be. resolved by arbitration with

the award to be binding for a period of not more than two

years. Pursuant to that Resetution there was created Arbi-

tration Board No. 282 made up of ‘representatives of rail-

road management, the Brotherhood, and the public. In

November 1963 that Board made a basic award to go into

effect in 1964 and to expire in November 1965; that award

permitted the carriers to make substantial reductions in

consists of crews both in road and yard service. —

- In their. original cnihaitined, plaintiffs alleged, i in addi-

tion to their constitutional contentions, that the passage of

P.L. 88-108 and thé award of Arbitration Board No. 282

amounted to a federal pre-emption of the field of crew

19

In the fall of 1964 plaintiffs filed a motion for sum-

mary judgment based in part on the pre-emption conten- es

tion. A majority of this Court sustained the motion on that

ground without reaching the constitutional questions posed

by the complaint. Chicago, R. L. & P. B. Co. v. Hardin,

W.D. Ark., 239. F.Supp. 1.

. Defendants in intervenors appealed to the Supreme :

Court of the United States, and the judgment of this Court -

was stayed about three weeks after it was entered. The ~

Supreme Court reversed our decision and remanded the

case for consideration of the constitutional questions on

the merits, Brotherhood of Railroad Locomotive Engineers

‘y. Hardin [sic], 382 U.S. 423. : oe hag

Act 116 provides i in substance that all freight aide in

road service operated on railroads fifty miles or more in

length arid consisting of twenty-five cars or more must be

_ manned by a crew consisting of not less than one engineer,

one fireman, one conductor, and three brakemen. Act 67 pro-_-

vides that railroads one hundred miles or more in length —

conducting switching operations over public crossings in

first and second class cities in Arkansas must utilize crews

consisting of not less than one engineer, one fireman, one

foreman, and three helpers. Substantial pecuniary penal-

ties are prescribed for violations of the respective statutes.

When those statutes were. passed, all locomotives were

powered by steam. In those days engineer, conductors,

_foremen, and firemen were indispensable crew members in

road and switching operations. Hence, the practical effect

of the statutes was to require the affected railroads to

employ an ‘‘extra brakeman’’ and an ‘‘extra helper”, de-

pending upon the’ nature of the operation.

Over a period beginning in. 1907 and ‘colteg: in 1933

different rail carriers on three occasions attacked the

validity of the statutes without success. Claims that the

eae PE IOAN LINE FEELS PIEGEL a puiladiiel

”

enactments violated the 14th Amendment, the Commerce

Clause, ‘the Interstate Commerce Act, and the Railway

‘Labor Act were successively rejected. Chicago, Rock Island

& P. B. Co. v. State, 86 Ark. 412, 111 S.W. 456, aff’d 219

US. 543; St. Louis, I.M.&S. R. Co. v. State, 114 Ark. 486,

170 S.W. 580, aff’d- 240 U.S. 518; Missouri Pacific R. Co.

v. Norwood, W.D. Ark., 42.F'.2d 765, aff’d but with leave

to amend complaint, 283 U.S. 249, 283 U.S. 809, decided

on merits, 13 F. Supp. 24, aff’d per curiam, 290 U.S. 600.

_ In that series of cases the stétutes were authoritatively

. characterized as safety measures and were upheld as such.

While the Courts recognized that the relationship and

significance to safety of operations of fixed crew consists

were questionable, the Courts on the records before them —

were noWable to say ‘that the statutory requirements

were not reasonable and permissible police regulations.

In the Norwood case in particular the plaintiff carrier

~ contended that changes in railroad equipment and opera-

’ ions in the years which had followed the adoption of the

statutes had been such as to deprive them of their validity,

and that they should be declared unconstitutional on the

basis of changed conditions. In its decision on the merits,

13 F.Supp. 24, the District Court recognized that there_

had been many material changes in the railroad industry,

and it discussed them in great detail. However, the Court

was not persuaded that the changes. had been so great -

. or significant as to render unconstitutional the continued

enforcement of the statutes. And in its affirming per

' guriam opinion the Supreme Court ‘‘saw no reason to

disagree with the determinations of fact reached by the .

District Court.’’ 290 U.S. 600. .

_ In the instant case plaintiffs now contend that changes

in the industry which have taken place since Norwood

have rendered the statutes obsolete and irrelevant as far

7 nella “peat man ee ee

do so before, the statutes now amount to violations of the.

Due Process and Equal Protection Clauses, and that they

discriminate. against interstate commerce and are an un-

constitutional burden of that commerce. Pe

. Countering those contentions the defendants and in-

tervenors, while admitting that there have been changes

and. improvements relevant to safety.of operations, deny

that those changes have been as far reaching and signifi-.

cant as plaintiffs contend, and deny that the improvements

have been universally and uniformly adopted by the car-

riers; they also contend that railroad operations today

present hazards that_did not exist when Norwood and

the other earlier cases were, decided; and they challenge

the cost figures of the carriers. They say that even after

giving full weight to the changes and improvements the

question of the reasonableness of the statutes as safety

measures still remains fairly debatable and that this Court |

‘should not substitute its ee for the Est of

the Arkansas Legislature. ih ‘

Alternatively, d éndants and intetvenors oontiei: that

even if the statutes have lost their significance as safety

measures, they are still sustainable as ‘‘economic legisla-

tion,’’ and they cite in that connection a line of cases be-.

ginning with -West Coast Hotel Co. v. Parrish, 300 U.S.

. 879, and apparently ending with Joseph E. Seagram &

Sons, Inc. v. Hostetter, 384 U.S: 35. We dispose. of: this

alternative contention at this point ‘by observing that the

statutes have been characterized as safety measures and

nothing else. We accept the characterization of the earlier

decisions and find it unnecessary to decide whether the

statutes are sustainable on some other basis.”

“TDefendants and intervenors point out that in 1958 the people of

Arkansas voted. on a referendum petition directed at the statutes and

refused to adopt.

3It may be doubted that the statutes could be sustained. under the.

Arkansas Constitution as “economic meas) “es”, but we do not pursue that

subject.

oe 2

As es thea “nee, the ‘Arkansas eeatiien have. 7

upheld. by the Supreme Court of the United States, with ©

the Nerwood litigation being terminated finally in 1933.'

In view of the judicial history of the statutes, it is neces-

gary for us’ to determine what issues are open to us here

and to what extent dur inquiries are foreclosed by the

earlier adjudications. The plaintiffs say that all issues

gra open for consideration’ in the light of changed con-

ditions. Defendants and intervenors say that all issues _

are foreclosed, except the contention based on the Due |

Process Clause. \

In connection with their appeal from our order grant-

ing summary judgment in the case, defendants and inter-

venors argued in the Supreme Court that the constitutional

issues tendered by plaintiffs are insubstantial. That Court

. rejected that coritention. ,We have read the opinion of the

- Court very carefully/ are persuaded that no issues

raised by the pleadings the evidence are ‘‘foreclosed’’

by the earlier decisions. While- we consider the. issues

"against the backdrop ofthe former cases, we must con-

sider them in the light of present day conditions and in:

- the light of the additional experience with and insights

' into crew consists in relation to safety of operations which

‘have been gained in the thirty-four years which have

@lapsed since Norwood was finally decided.

As materials of record reflect, the proper manning

of freight trains has been a source of. controversy between’

the carriers and the’ Brotherhoods for many years, and

the problem has become one of increasing urgenvy as

time-has~gone by. It has been the subject of collective.

. bargaining, of studies by representative groups, of legisla- .

tion and of arbitration. Naturally, as the transportation

. industry has become more efficient and competitive, and

as equipment and technology have improved, the carriers

have sought to operate without unnecessary personnel,

ene

aoe

| Equally naturally, ‘the isrtat silat Brotherhoéds have.

sought. to’ protect insofar as possible the jobs, of. their

mernbers. ‘Generally, the railroads have desired to reduce

crews in’ road and yard services, and particularly to elim-

‘inate firemen on diesel locomotives, whieh have now uni-

_versally supplanted steam power, and to eliminate the

third brakeman and third helper. The Brotherhoods, on ©

the other hand, "have desired. to maintain existi x crew

levels or even, in instances, to inerepss them.

As time has gone by, there have been many historical ;

developments in the railroad industry related to the prob-

lem of freight and switching créw consists. Bargaining ©

has taken place, demands and counter-demands have , been

made, strikes have been threatened, studies and reports

have been made, and there have been arbitration awards’

under which the carriers and the Brotherhoodsyhave op-

erated for substantial periods of time. Fa

It would prolong this opinion anddy aiid would be

a duplication of effort to undertake to outline those his-

torieal developments here in any detail. Adequate histori- —

_ eal statements will be found in the opinion of the Supreme

Court in this case; in the 1960 Report of the Public Serv-

ice Commission of the State of New York dealing with

the full crew laws of that State; in the 1962 Report of .

the Presidential Commission on “Railroads; and in the

Report of the Royal Commission on Employment of Fire-

men on Diesel Locomotives in Freight and Yard Service .

on the Canadian Pacific Railway. Regardless ‘of. the val-

idity of the opinions expressed and the conclusions reached

in those reports, there can be no: question; that most of

_ the factual material set out in them is asgarate. Indeed,

many of the facts set forth in the reports could be - the

subject of judicial notice.

As pointed out in the report of the Presidential Com-

oy: mission, full crew legislation was the product, of the late

|

, —_——. °|

Te ea

_- 19th and early: 20th centufy; with a few exceptions no

_ full crew legislation has ‘been passed since 1920. As of

January 1, 1967, fifteen States, including Arkansas, had

full crew legislation with respect to passenger trains.’ Six

States besides Arkansas had full crew requirements of

some sort for freight trains in road service. Four States

in addition to ansas had similar requirements for

“switching crews. Seven States have authorized their re-

gulatory agencies to:-make full crew requirements, but in

four of those States no requirements have been made.

: Twenty-seven States have neither legislated . on the sub-o

ject nor authorized consist eee to be made by

_ regulatory bodies.

The Arkansas requirement that six man crews be em-

ployed in all road and switching operations is the most

arduous of all of the existing full crew requirements. Of

the other full crew States only Indiana ‘requires the em-

ployment of as Many as.six men, and Indiana’s —

ment is limited to Jonger trains. :

All of the plaintiffs here are Class I -railroads. “A

of them employ diesel-electric locomotives in. their opera-

tions; none tises steam power. All. of the plaintiffs are

subject to both of the Arkansas statutes.‘ In none of the

States bordering Arkansas are there full crew require-

ments which afféct plaintiffs, and in all of. those border-

men.

ing States plaintiffs: operate with crews of less. than six |

a There are seventeen short line carriers in Arkansas _ .

which are not affected by the statutes. Their crew con-

sists are determined by managetial decision or by col-

_ lective bargaining. They operate with varying crews of |

8The Arkansas statute relating to the crews of: passenger trains, Ark.

Stats., Ann., $$73-723 and ‘73-724, is not.involved in this litigation.

4In the course of the oral argument counsel for the carriers expressly -

waived. any contention that the Arkansas Statutes do not require firemen

on diesel we '

~ from two to six men. There are also indpstrial and military

railroads in the State which operate with crews of less |

than six. The tracks of the short line carriers, of the |

industrial railroads, and of the military railroads connect

with the interstate lines: ‘of one or more of the plaintiffs, .

and the same ——* which moves on the Jong lines

moves on the short ones. pee eh al Ae eee

. With the foregoing na way. of: vpiligtieiel. we ap-

proach now the merits of the controversy. The governing |

~ legal principles are cope and, indeed, are not ween nari

disputed :. |

In the aheensk. of controlling federal siciilatiindin the

State of Arkansas is free, subject to the limitations of the

Commerce Clause, the: Due Process Clause, and the Equal

Protection Clause, in the exercise of its police power to

legislate in the interest of safety af railroad operations

even though its legislation may affect interstate commerce.

As far as the Due Process Clause is concerned, the

statutes are not unconstitutional if. their requirements are

reasonably related to safety of operations, and if they are’

not unduly oppressive, restrictive, or costly in comparison

with the safety benefits achievéd. See, int’ dition to the.

cases involving the Arkansas statutes: Goldblatt’ v. Town

. of Hempstead, 369 U.S. .590, 594-595; Lawton v. Steele,

152 U.S. 133, 137; Weinberg v. Northern Pacific enath Co.,

-8 Cir., 150 F. .2d 645.

If the \ weniniedbenat of the saiuicas ‘of the

statutes remains fairly debatable, this Court will not sub-°.

stitute its views for ‘those of the Legislature; we do not

sit to exercise ‘legislative judgment.’’ United States v.

Carolene Products Co., 304 U.S. 144; South Carolina State

Highway Commission v: Barnwell Brothers, Inc., 303 U.S.

177; Standard Oil Co.-v..City of Marysville, 279 U.S. 582;

Weinberg v. Northern Pacific R. Co., supra.

26

As to the ‘Commerce disins, it .goes without saying .

that Arkansas may not lawfully discriminate against in-

terstate commerce, nor may the State unreasonably burden

«that commerce. With respect to the burdening of inter-

state commerce it. should. be ‘pointed out that the Corhmerce

_ Clause and the Due Process Clause are not exactly co-

“extensive. A State regulatory statute which may survive

a due process attack may fall before the Commerce Clause.

| Bibb v. Navajo Freight Lines, 359 U.S. 520, 529.

| “In. the absence of ruling federal legislation or - regula-

tory action, a State is free to adopt local safety legisla-

_ tida which may affec* ‘nterstate commerce, provided that

the enactment serves a real and legitimate purpose and

is not unduly burdensome on that commerce. But, the

general rule is that State regulation which interferes with

the free flow of interstate commerce or which materially ,

affects it in areas where uniformity of regulation is re-—

' quired, in invalid under the Commerce Clause. Morgan

‘v. Virginia, 328 U.S. Bis, Southern Pacific Co. v. _ Arizona, .

_ 325 US. 761. .

‘At times, a State safety statute may have a distinct

impact on interstate commerce, and when such a situation

| arises, there must bea judicial balancing ‘of the legitimate.

tate’ interest against the national interest in the flow

of\ interstate commerce free from local regulation. Bibb

v. Navajo Freight Lines, supra; Southern Pacific Co. v.

Arizona, supra. — oa

The Arkansas statutes are presumed to be valid as

against both the 14th Amendment and Mommerce Clause

attacks. Bibb v. Navajo Freight Lizies, supra, 359 -U.S.

at 529. The burden is upon the plaintiffs. to establish the

invalidity of. the statutes, and if upon a consideration of

the whole: record a reasonsble doubt upon the question

remains, that doubt must be resolved in favor of the validity

of the statutes.

prmerrenrsersenr ar CONROE seen . : y

re ee

27

a +‘ ‘The record before us ig extremely voluminous. I¢

| : - includes oral testimony, sworn statements, depositions,

statistical material, documentary evidence, copies of var- .

ious public documents, photographs, and motion picture

film. We make no effort to discuss the evidence in detail.

Af the mass of material put into the record by the parties,

and we suspect that much that was put in is surplusage, —

_ is to be evaluated properly, it is necessary for us to define

clearly the controlling issue before us.

That' issue is whether under present railroad operat-

iing conditions the minimum six man crew requirements

of the two Arkansas full crew statutes remain as valid .

exercises of the State’s police power in the field of railroad |

_. safety or whether they now amount to arbitrary require-__

ments which are unreasonable, oppressive and unduly .

burdensome on interstate commerce. P

It is important to keep i in mind that we are concerned

with the specific consist requirements which Arkansas has

seen fit to make. We are not directly concerned with the

. Yequirements of the other full crew States, and we are

not concerned with other requirements which the Arkansas

Legislature might have made had it chosen to do so.

We are dealing here with railroad safety, and in the

field of railroading ‘‘safety’’ is a highly relative term.

’ Pennsylvania R. Co. v. Drigcoll, Pa. 9 A> 2d 621. Railroad.

ing is an inherently dangerous business whether it-is car-

| _ vied on in Arkansas, Missouri, New York, or California.

As long as railroads operate and as long as human beings

are fallible, there are going to be railroad accidents. There

"are many causes of such accidents. Some types of acci-

‘dents may be connected proximately to railroad crew con-—

sists; mhany-other types cannot be so connected. A railroad

SThe view which we take of the case renders it unnecessary for us

; to consider whether the statutes “discriminate against interstate com-

-* merce” or whether they violate the Equal Protection Clause. -

28

hazard which cannot be avoided or mitigated by having a

particular number of men on a train or in a switching

crew, is not relevant in this case. On the other hand,

it is only fair to say that an improvement in railroad equip-

° ment or -operating methods which does not eliminate or

_ substantially eliminate the need for one or more men to

_ perform a necessary. safety function is equally irrelevant.

Speed and efficiency of railroad operations cannot be

equated entirely with safety of operations; however, it

cannot be said accurately that safety of operations may

not frequently be related to efficiency and speed of opera-

. There is no question that since the Norwood decision

great changes and improvements in railroad equipment

‘and operating methods have been made, which changes and

improvements have contributed largely to safety of opera-

tions. ’

The diesel locomotive has entirely displaced steam

power, and the design and appearance of a diesel locomo-

tive differ greatly from those of a steam-locomotive. A

diesel locomotive is a much more efficient piece of ma- .

chinery than a steam locomotive, and is so designed and

- arranged as to require much less human effort i in servicing

‘the locomotive and making adjustments while the train

is in motion. Almost all necessary adjustments that can

be made while the locomotive is in operation ate made

by manipulating switches and buttons.

There have been great improvements i in cars, couplers,

brakes, tracks, roadbeds, and switches. There have been

new and improved signals and traffic control devices de-

signed and installed. Communications from one end of

a freight train to the dther\and from the train to points

- outside the train have been revolutionized by the develop-

ment of the two-way radio telephorie. There are others

which might be mentioned. Operating methods have

catia DSc ities Lito be isha LEE SPE ROTM SAE Pt

co Casares Paes

29 . :

changed also so ‘that the duties of crew members’ are less’ -

arduous than they were thirty years ago.

The diesel locomotive began to be used in road service

in the 1930’s and its adoption progressed steadily in the

post Norwood years, except to-the extent that it may have

been slowed down temporarily during World War IL:

Prior to 1937 some carriers used firemen on diesel

locomotives; others did not. In that year the Brotherliood |

of Locomotive Firemen and Enginemen and the carriers

- entered into an agreement known as the 1937 National

Diesel Agreement which in general retained firemen on

diesel locomotives in freight and yard service as well as

on passenger tarins. That agreement remained the basic

rule in the industry as far as firemen were concerned

until the award of Arbitration Board No. 282 went into

effect. Wyo

While, as stated, the employment of firemen was gov-.

erned for many years by the 1937 agreement, there was

no ‘‘national rule’’, as far as brakemen and helpers were

concerned. Depending upon local rules and practices thé

numbers of such employees, varied from time to time and

from place to place.

Between 1937 and 1959 in States not soleil full crew

laws the carriers operated under the terms of the 1937

National Diesel Agreement and the particular rules and

_ practices governing the numbers of brakemen and helpers

to be utilized. This meant that during that period many,

if not ‘most, operations were being conducted with five

man ‘crews, and some operations were being carried out __

with crews of less than five men.

By 1959 the carriers had conie to the conclusion that

the retention of: firemen in diesel service. was unnecessary

from any standpoint, including that of safety. The carriers

had also concluded that'as far as brakemen and helpers

, 30

> were concerned, fixed crew consists should be eliminated.

The general position, of the carriers was that. overall crew

consists should be determined by managerial decision, and |

_ that proper decisions would be prompted by the carriers’

own enlightened self interest. | ;

°When the -carriers put er their proposals, the

Brotherhoods countered with demands that the firemen

be retained; that in road service there should be not less

than two brakemen; that in yard service there should be

not Jess than two helpers; and that such additional brake-

men-and helpers should be employed as to insuré maximum

safety of operations. We think that the counter proposals

of the Brotherhoods as: to brakemen and helpers are not

without significance in this case.

In 1960 the Public Service Commission of the State

of New York on the basis of studies and hearings determ-

ined that the New York full crew law, which was not dis-

similar to those of Arkansas, was not any longer making

any significant contribution to railroad safety and reeom-

mended that it be repealed. It was repealed effective in

June 1966, except that New York still requires firemen

to be retained on locomotives.

In 1962 the Presidential Commission on Railroads

recommended subject to certain qualifications that firemen

be discontinued in road and yard service and that the num-

bers of brakemen and helpers to be employed should be

determined by collective bargaining and arbitration. The -

. carriers and Brotherhoods involved in this case ‘partici-

pated in the proceedings before the Commission. -

The award of Arbitration Board ‘No. 282 permitted

the discontinuance of firemen on 90 percent of diesel -

crews and gave to the BLF&E the right to determine the

- remaining 10 percent of the crews on which firemen were

to be retained. As to brakemen and helpers the award

31

provided i in substance that the numbers of such employees.

. should be determined ad hoe by special boards of adjust-

ment in the light of certain guidelines spelled out in the

basic award.

Following the iia freight and switching crews

were reduced substantially which in at least many instances

_ Meant that road and switching operations were conductéd -

_ with crews of less than five men. The award itself has.

now expired. As thé-Court understands the existing situa-

tion, the carriers are not free, in the absence of approptiate

collective bargaining, to continue to reduce crew consists;

on the other hand, they are not required. automatically

to restore positions-which were eliminated while the award —

was in force. See Brotherhood of Railroad Trainmen v.

Akron & B.H. BR, C.A. _D.C.—F.2d—, opinion —_— |

mented, —F. 2d—.

The statistical doltiite as:to the ‘effect upon safety

of the reductions in force authorized ‘by the basic award

and by the awards of the special adjustment -boards is

. not éntirely satisfactory either way; statistical evidence

seldom is. ‘The statistics do indicate that in 1964, 1965,

and 1966 railroad accidents of various kinds increased,

but that casualties resulting from railroad accidents fell.

However, both trends are to be observed i An years preceding

the effective date of the award. From ‘the whole evidence

in, the case, it appears .to us that the reductions in force

had no substantial effect on safety of: operations, except

to the extent that there were fewer railroad employees

on duty to be hurt.. Why accident rates have been in- —

creasing we do not know with certainty, but it would.

be pure speculation to say that crew size has had anything -

to do with it.

We have undertaken to uneiiee all of the ieblainn

“in the case including the reports and awards which have

been mentioned. As to the reports and awards, we are

ca

NR a a a al dl a ee

“ ee

net bound by them, but we think that we are entitled to

consider them. The Commission and tribunals are, we

think, ‘entitled to some credit for expertness in the field;

further, the reports and awards grew out of proceedings

in which the plaintiffs and intervenors in this case par-

ticipated, and the underlying issue about crew consists

. is the same as the issue here.

_ We find from the overwhelming weight of the evidence

that by the mid 1950’s, if not before, the fireman on a

diesel. locomotive and the third brakeman or helper had,

in general, creased to perform significant safety functions

in the operation and switching of freight trains and cars.

We further find that without regard to employee cate-

gories freight trains have been operated and switched |

throughout the country for the past number of years with |

crews of five men or less, and that the operations have

been conducted with safety. It follows automatically that

such operations can be wacsten many with less than

- six men.

What has, been said about the. oie as a theta is

clearly applicable to Arkansas. Railroad operations in

‘ Arkansas are certainly no more dangerous than operations

in other States having comparable terrain, population, and

_ economies. Indeed, it well may be that-operations in Ar-

kahsas are safer inherently than operations in some of the

bordering. States which centain more densely populated

and more urbanized and industrialized sections.,

The foregoing statement about Arkansas is corrobo-

| rated at least up-to a point by the fact that the short lines

vperating in this State seem to have had no safety prob-

lems ‘resulting from the fact that they use crews substant- _

ially smaller than those called for by the statutes. While

we are not prepared to accept wholeheartedly the con-

| tention of plaintiffs that there is ‘‘no difference’? from

the standpoint of safety in long line operations and short

PGT IMENT PG CO WE OA IIE Bi EL rant pe

POLYM ee One ras Hate tae suey

38

f 4 |

line operations, certainly.the two operations resemble each

other in the sense: that both use and switch the same ;

equipment, that the employees of both perform the same

individual tasks in the. same way, and that there are

hazards common to both long line and short line operations.

Compliance with the Arkansas statutes places upon the

carriers substantial financial burdens and also burdens

them otherwise. As to cost of compliance in money the |

carriers’ evidence is to the effect that the cost now amounts

to $7,600,000 per year and can be expected to go higher.

That figure seems to represent. the direct outlay of the

carriers in compensating the firemen, the extra brakemen, _

and the .extra helper. That direct.outlay is subject to

offsetting costs that would ‘be ineurred if the two extra ~

crewmen were eliminated; the carriers have not taken

those offsetting costs into account in reaching their $7,

600,000 figure, but it seems clear that after all reasonable

offsets are taken into account, the net cost of compliance

will remain very heavy.

- Compliance with the statutes also involves the taking

up of additional men when plaintiffs’ trains approath or

enter Arkansas and the dropping of such men when the

trains leave Arkansas. We doubt that this burden is as

great as the carriers would make it, but it does involve

some delays and tends to interfere with ae of.

operations. i /

We have tiow awe the point of decision.

Conceding that as late as the Norwood decision the

question of the reasonableness of the Arkansas full crew

laws was ‘‘fairly debatable,’’ we are convinced with the

requisite degree of certainty that the question is not fairly

debatable today, and it is not made so by the fact that

the Brotherhoods continue to debate it.

-

~ ty erat * MP ON NT A VLE GET LOLOL INIA ay A REG E nis Gillis f 28. ALLA OCD GIP |

, ~ et ree en alin ae —— 9

cs : . 34

We find from the evidence as a whole that under

present conditions continued enforcement of the statutes —

makes no significant contribution to railroad safety, and »

that the statutes as they operate today are unreasonable

and oppressive, and that they violate the Due Process

Clause and unconstitutionally burden interstate commerce.

That is not to say that freight and switching crew

sizes are irrelevant to safety of operations. A train cannot

be operated efficiently and safely or, indeed, at all, with-

out a minimum crew consist, but we agree with plaintiffs

that minimum crew consists vary with the facts and ¢ir-

camstances of ‘particular railroad operations, and we hold

that it is now unreasonable and arbitrary for Arkansas —

to require men for all operations in road service and urban

switching without regard to surrounding facts and circum-

* stances other than those set forth in the statutes.

It may be that in come exceptional siiliilaniie a

crew of six men or even more would be necessary for the

safety of a particular train movement or switching opera-

- tion, but the mere fact that an exceptional situation might

‘dictate the use of a/six man crew does not, in our estima-

tion, justify the inflexible requirement of the Arkansas

statutes that no less than six men always be used.

Even if we go one step further and indulge the very

doubtful assumption that in all situations the very fact

that three men, rather than two, are keeping a lookout, or

that three men, rather than two men, are braking or

switching, adds some increment.of safety to the operation,

we think that such an increment is negligible and spect

lative and not worth the cost:

With more fic regard to: the ainenttin of plain-

tiffs that the’statutes unduly burden interstate commerce,

we think that the financial burden of compliance, which

is out of all proportion to the benefit, if any, derived, and

the added bandon involved in the teins on and discharging

_ Men ator near the Arkansas State line are sufficient to

- justify our concolusion that the statutes are unconstitu-

tional burdens on commerce. We feel, however, that we

sould go somewhat further than that.

The Arkansas statutes were. passed prea a Cade

in which the railroads were the undisputed masters of land — |

transportation; they enjoyed a practical monopoly in-that

field. They competed, more or less, among themselves, but

they had to compete with no other form of land transporta-

tion, and air transportation of passengers and verecad had

not come into existence.

Such is not the case today. As voiniod out by the |

Presidential.Commission, and as everyone knows, the rail-

roads now compete with busses, trucks, pipelines, and air

planes. In Arkansas they will be competing in a few years

at the most with barge transportation on the Arkansas °

River; they are already competing with such traffic on

the Mississippi River and many of its tributaries both great

and small.

Kita as pointed out by the. Oowmisiisaion, if the rail-

roads are to meet this competition successfully, they must ~

make efficient use of their resources and equipment and

’ must be free to take advantage of improved technology and

developments in the industry. . %s*

The Arkansas statutes in our view militate ‘against ——

that necessary efficiency and flexibility; they hamstring

the carriers in the important field of labor relations, and

impose upon ‘them requirements not generally imposed

throughout the country and not ¥s wiaat in any of the

States bordering Arkansas. :

In the foregoing sense, as well as in the others men-

tioned, the statutes burden interstate commerce, and. we

think that the burden’is undue and unconstitutional.

_ Inhelding the statutes. uncdnstitutional we do not over-

look the fact that a contrary result was reached in Public

Service Commission of Indiana v. The New York Central

_ Railroad {o., Ind., 216 N.E. 2d 716, decided in 1966, and

. in New York. Central R. Co. v. Lefkowitz, 259 N.Y.S. 2d

76, decided in 1965, affirmed. by the Appellate Division of

the Supreme Court of New York on June 29, 1967.. With -

“due deference.to those decisions and to the Courts render-

- ing them, we come to the opposite conclusion.

Before’ ‘atid! this opinion .to a close we desire

to,point out that our decision does not prohibit the carriers

from employing as many men as they may care to employ

‘in road and yard service; it does not require them to

. discharge a ‘single fireman, brakeman, or lielper. It simply

leaves plaintiffs free to work out theirerew consist prob-

lems with the Brotherhoods by means of. collective bargain-

- ing within the framework of the Railway. Labor ‘Act with-

“out their hands being tied by statutes which at best are .

\

‘functus officio as far as, railroad safety i is concerned. |

“A decree enjoining enforeément of the Act is being

hee entered. — this 2nd day of October, 1967.

; \ as de. Martin D. Van Oosterhout’ *

ise: : United States Circuit ‘Judge |

/s/ John E. Miller

_ United States District Judge

/sf J. Smith Henley ,

United States District Judge

~

_ legally fan’ shall condlitute ‘a separate offense. Provided,

. 37 .

- Arx. Stat. ANN. 64 73-720 through 722 (Repl. 1957) -

(Arkansas Act 116 of 1907)

73-720. Crew required on freight trains.. No railroad

company or officers of court owning or operating: any line

. or lines of railroad in this State, and engaged in the trans-

portation of freight over. its line or lines shall equip any of

its said freight trains with a crew consisting of less than

‘an engineer, a fireman, a conductor and three (3) brake-

‘men, regardless of any modern equipment of automatic

couplers and air brakes,-except as hereinafter provided.

73-721. Exceptions from Act—Purpose. This Act shall

not apply to any railroad company or officer of court whose

line or lines are less than fifty (50) miles in length, nor

to any railroad in this State, regardless of the length of

the said lines, where said freight train so operated shall

consist of less than twenty-five (25) ears, .it being- the

_ purpose of this Act to require all railroads in this State

whose line or lines are over fifty (50) Iniles i in length en-

_ gaged in hauling a freight train consisting of twenty-five

(25) cars or more, to equip the same with a crew, consisting

of not less than an engineer, fireman, a conductor and

three (3): ‘brakemen, but nothing in this Act shall be con-.

strued so as to prevent any railroad company or officer of

-gourt from adding to or increasing its crew y beyond the

number set out in this Act.

73-722. Penalty for violations—Exaceptions. Any rail-

road company or officer of court violating any of the pro-

visions of this Act shall be fined for each offense not less.

than one hundred dollars ($100.00) nor more than: five

hundred dollars ($500.00), and each freight train so il-

OI IH HOT IIE LLLP SAS CP DRL NOES SLES “

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the penalties of this Act shall not apply during strikes of —

men in train service of lines involved.

sal

An. Srar. Ann. §673-726 through 729 (Repl. 1957)

(Arkansas Act’ 67 of 1913)

73-726. Switch crews in cities«~Requisite members. No

_ Yailroad company or corporation owning or operating any

yards or terminals in the cities within this State, where

switching, pushing or transferring of cars are made across

public crossings within the city limits of the cities shall

operate their switch crew or crews with less than one (1)

engineer, a fireman, a foreman and three (3) helpers.

73-727. Purpose of act—Number in crew may be in-

creased. It being the purpose of this Act to require all’

railroad companies or corporations who operate any yards

or terminals within this State who do switching, pushing

or transferring of cars across public crossings within the —

city limits of the cities to operate said switch crew or crews

- with not less than one (1) engineer, a fireman, a foreman —

and three (3) helpers, but nothing in this act shall be so

construed as to prévent any railroad company or corpora-

tion ‘from adding to or increasing their switch crew or

crews beyond the number set out in ‘this Act.

73-728. ‘Application of act to cities of first and ee

class—Exception. The provisions of this Act shall only

apply to cities of first and second class and shall not apply

to railroad companies or corporations operating railroads

less than one hundred (100) miles in length. .

73-729. Penalty for violation of act. Any railroad,

company or corporation violating the provisions of this Act

shall be fined for each separate offense not less than fifty —

dollars ($50.00), and each crew so illegally operated shall

constitute a separate offense.

/ ” ‘ a . .

LORRI 88 NEEM IN I OREN BA RENE GBM RE A ERT AEM IR HEN