# Jurisdictional Statement — Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0036%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1969 - **Citation:** 393 U.S. 129 ## Text 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. 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 “ en wee sate? LA ea ashlee nt Ladin tl gg .« 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0036%3A02. Public record. Not legal advice.