Brief for the Appellant — Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad
Supreme Court brief1969
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‘SUPREME COURT.0. 8 oe
/b )8 . MAY 29 1969
Nos. gs and@uy”
<i CLERK
SUPREME COURT OF THE UNITED STATES”
October Térm, 196%
"No. 950 '
BROTHERHOOD OF: LOCOMOTIVE FIREMEN AND ENGINEMEN,
ET AL., Appellants
v.
CHICAGO, ROCK ISLAND AND PACIFIC eastmoad COMPANY,
ET AL., Appellees
No. 973
‘ROBERT N. HARDIN, PROSECUTING ATTORNEY FOR THE SEVENTH
JUDICIAL CIRCUIT OF ARKANSAS, ET AL., Appeliants
v.
J : CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY,
ET AL., Appelices
=z Appeals from the United States District. Court tor. the
a Westera District of Asmanens
| BRIEF _—_" THE APPELLANTS
e
James E. YouncpAnL
Rosert D. Ross
; 711 West Third Street
Little Rock, Arkansas 72201 ~
Attorneys for the Appellants (950)
Jor PuRcELL tf 2
ATTORNEY GENERAL or ARKANSAS ;
_Lestiz Evirte ; [Ba
Cuter AssIsTANT ATTORNEY GENERAL OF ARKANSAS
Justice Building ©
Little Rock, Arkansas 72201
Attorneys for the Appellanis (973)
Of Counsel: .
Joun P. Sizemore
MoMatH, LeaTHERMAN, Woops & YouNGDAHL
Por, Pratt, SHAMBURGER, Burralo & Ross ‘i
Little Rock, Arkansas
-
: - - ieee
8r. Louis Law Parrrie Co., Inc., 411-15 N. Eighth St., 63101. CEntral 1-4477.
~
~
.
oe | | —_
‘Opinion Below ........ MOLES hohe anus OF
Jurindiction 2.....5..cs.csecssecesegnevess ea |
Constitutional Provisions and Statutes Involved | ste 2
| Question Presented ............ errr rere ree “9
Statembent of the Case .:..........0c0c0e0. sepuseee 3
ee mimes caw 5°
Argument ..... cheered os er eatas elunexie ae
I. The challenged statutes are viable legislative |
judgments in areas of historic state concern . . ‘9
II. The challenged statutes have received’ con-
‘sistent authoritative judicial validation in re-
sponse to legal contentions’ identical to ie at
|, WE, eek issusstvevectenngeenenwasetaeevecenss 15
III. The railroads have failed to ‘prove that the
- challenged statutes have become unnecessary
and arbitrary under present conditions: ....:.. 26
IV. The railroads have failed to prove that the cost
of compliance. with the challenged statutes has
become unreasonably burdensome ‘under present -
| eee ee ere sensaseaveseienccee OE
V. The challenged statutes are reasonably related
to state interests in the ae of Arkansas
FUT 0 ain a sep jo nens Co éwe cee eee enen as fr_ $8
VI: Analysis of the challenged statutes under any
other constitutional characterization also com-
pels judicial validation ......... revewiweseein SES 8
f - . . ee
/ ’ ll
/ me
Cénclasion: PEP errr) et pone ieee ela kewe Tine cal 62
Appendix ; or sence eee e eet e eee e eee ee eeereecees 63
ME canes hate b ae eee eats 6 kee be k wee ks ones = 64
~ CITATIONS
‘Cases: ee |
AFL v. American Sash Co., 335 U.S. 538 (1949) ..... 58.
Akron, C. & Y. R.R.-v. Public Utilities Commn., 224 7
* N.E.2d 169 (Ohio Ct. Comm.Pl. 1967) ........ Tawa 25
Braunfield v. Brown, 366 U.S. 599 (1961). 7 eee wer my
Brotherhood of Locomotwe Engwmeers v. Baltimore &
O. RR, SIF UB. TOA (38GB) 1,202 cvdeccisccvccee 13
Brotherhood of Locomotive Engineers v. Chicago, R.I.
& Pac. R.R., -382 U.S. 423 (1966) .. .4, 5, 9, 13, 15, 19, 21,60 ©
ik Brotherhood of Locomotive Firemen v. Chicago, B. &
Q. R.R., 225 F.Supp. 11 (D.D.C. 1964), affmd., 331
F.2d 1020 (D.C.Cir. 1964); cert. den., 377 U.S. 918
=: eee EIR ee = |. er 13
Carmichael v. Southerw. Coal ¢ Co., 301 US. 495 (1937) -59
Carolene Products Co. v. United paeaee, 323. US. 18
CR a tea ne Pe ee Ny eee 60:
Chicago & N.W. Ry. v. LaPollette, 135 N.W.2d 269 _
i | re re eee Py ers rT ee 25,
Chicago, RI. & Pac. Ry. v. Divan, 219 U. S. 453
PE cr etlnsrisathe ces nha ceisevenitess dap + «Dy 15, 39
Chicago, R.I. & Pac. R.R. v. Hardin, 239° F.Supp. 1
. (W.D.Ark. 1965) ...... eke see cade seed aas sh eee 4
Chicago, R.I. &. Pac. R.R. v. Hardin, (274 F.Supp. 294
| (W.D.Ark. (SR Ieee ENE Bart 2 2 FG 4
Chicago, RI. & Pac. R.R. v. State, 224 Ark. 622, 275
i A re ree are oer re 22
Cook v. Kansas City S. Ry., 212 Ark. 253, 205 S. W. 2a
441 (DOS) oes e eee eee eee beeen ecto iaeesaeke 22, 45
Day-Brite Lighting, Inc. v: Siesta, 342 v. S, 421
(1952) - sa tecnceeiecsicceccsepenesesestoroes encore , 08
Zi Ta ie gL St Ran LAI Ch NaS ah NA IE MRED ELEY ANE AMEE SI AEE RGE LIES BIOSE MEAL EN AOA ELEM LIEATEETEET
iil
East Ss Vs - Savings Bank v. yaionn, 326 U. 8. 230
(1945) piniskhupsadeanvante Mah eb nos ah ot vseqess 59
Ferguson v. Skrupa, 372 U.S. 726 are :
Goldblatt v. Hempstead, 369 US. 590. (1962) rere 47
' . Hope v. Hall, 229 Ark. 407, 316 S.W,2d 199
(ROPE vik phe ccnnpleckecsrewneges ieeaseress 10, 12, 22
Internationul Bro. of Teamsters v. 339 US.
470 (1950) Spewoneee au pias Ceescsss aed ennkcass 62
Joseph E. Seagram & Sine,, Inc. v. Hostetter, 384 US. \”.
.. 35 (1966) ........: ieacweli abs adbke sada aaenies ss 58
Kansas City 8S. Ry. v. Bids, 224 Ark. i” 271 S.W.
"2d DBE. (1954) 2.2... seccccsccccccccvcccdovccceccs 9
Kansas City S. Ry. v. State, 116 Ark. 455,174 SW.
ro ie eeu s yg auc ephadas 22
Kansas City 8. Ry. v. State, 194 Ark, 80, 106 S.W.2d.
163 ( paid Said SA ene We Ode eka ee ahha seneensene 22
Kansas City B. Ry. v. State, 213 Ark. 906, 214 S.W.2d
79 (1948) eaten thikie eet bheeeneuse Tere errr Te e -]
Lincoln Federal Labor Union v. Morthuasstotn Iron
Co., 385 UB: §25 (1949). 56... 6.60006. er arere 58
_, McGowan . Maryland, 366 US. 420 (1961) ..... ie 89
“Missouri Pac. R.R. v. Moore, 210 Ark. 643, 197 S.W.2d
i I cel ens cuca ds Kana sonhn A ee ‘11, 22
-. Missouri Pac. RR. v. Norwood, 283 US. 249, 809
(1931) ; 13 F.Supp. 24 (W.D.Ark. 1983), affmd., 290
ie oe. Coro ae 5, 18, 19, 25, 50
Morey v. Doud, 354 U.S. 457 (1957 ) seeceeee ae ea 60
Munn v. IWinois, 94 U.S. 113 (1876) ....... 02. .c cc ne 57
New York Cen. R.R: v. Lefkowite, 259 N.Y.S.24 76
(Sup.Ct. 1965), affmd., ag N.Y.S.2d 68 (App.Div.
S007) - ...-- a vediense eet kee | RE er 6, 13, 22, 29, 61
New York, N.H. @ H. RR. v. Now York, 165 U.S. 628.
(1897) CAESAR a Ip Peon ese eeeeanet 16
(1966) ......;.; «Hg NR ese ate rots en aay ibe 6, 24
San Francisco v. Market St. Ry, 98 F.2d 628 (9th
Cy BPD Si vocewvcse ee Dhan wees EkeesEPabeO ne es - 24
Southern Pac. Co. v. Arizona, 325 US. 761
SE eee eaves ceaues eeaeneaewaesalews 5, 21, 23, 55
St. Louis, 1.M. & S. Rif v. Arkansas, 240 US. 518
4. eee Wimihis co vaak eaeweeeeeasous Aree 5, 17, 60
St. Louis, 1.M. & S. Ry. v. Wells, 102. Ark. 257, 143°
i ee AE vo bein nees<abesutavaceeatnsus 10, 60
St. Louis, S.F. Ry. v. State, 215 Ark. 714, 993 S.W.2d
DD CRT nv dese ctsces EE hE ee Ee Te 22
Two Guys From Harrison-Allentown, Ine. v. McGin-
. ley, 366. U.S. 582 (1961) ..... gpapesees haces wie 60
United Statés v. nee Products Co., 304 U.S. 144
Se daveneesnnys eee bcetre nae evar entre ee
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) 57
Williamson v. Lee Optical, 348 U.S. 483 (1955) ......8,57 ©
Statutes: — | Pant
. ArK, Stat. Ann. §§ 73-701 through 744 (Repl.
DEE cé-peckceeea dese needapeneassewse peeled 2, 3,9, 10, 11
Ark. Stat. Ann. § 73- 730 (Supp. ERE pee ae
a
Northern Pac. Ry. v. os 45, N.W.2d 196 (N.D.
Gi se peueekeaae 29
Olsen v. Nebraska, 313 U. s, 236 (1941) ..... rere . 58°
Overstreet v. Missourt Pac. R.R., 195 F.Supp. 542
“ose ell ces! MEE ee ee 10
Pennsylvania R.R. v. Driscoll, 9 A2d 621 (Penna. :
SUE OS SEP eee eee Rite ar ron n ney aw Mpa eres 24
‘ Public Service Cammn. v. New York Cen. R.R., 216
‘N.E.2d.716 (Ind. acca cert. den., 385 US. 843
Ark. Srat. Ann. §§ 73-901 through 922 (Repl. 1957).. 10
Ark.” Star. Ann. §§ 73-1001 through 1015 (Repl. ;
1957) psec cece er cece ee reeee ae reer hee 11
° v |
= ? | .
Ark. Srat. Ann. § 75-642 (Repl. 1957) ......... Cane
Public Law 88-108, 77 Srar. 132, 45 U. 8.C. following 7
Ne eae gered ead 3, 15
a eee are Teleiciededncey ae
ef | eee fe SPR ro er 61
ee a ee |
U. S. Const. art. I, $8, al 3; art. VI, $2; amend.
Sk Le er er re 2,20 .
. Miscellaneous: |
_Arbitration Award No. 282, 41 Lab. Arb. 673 3 (1963). 13, 14
109 Cone. Rec. 16122 (1963) ...........eeeecee cece 15
114 Cone. Rec. $3987 (daily ed. April 10, 1968) ....15, 51
Hearings on the Administration of Public Law 88-108" :
(Railroad Work Rules Dispute), 89ta- Cong., 1st &
ee SD ons cuss pee chao oct cenans 15, 49, 61 |
Hearings on H, J. Res. 565 (Railroad Work Rules
Dispute), 88th Cong., 1st Sess. (1963) ...........14,15 ©
Hearings on 8S. J. Res. 102 (Railroad Work Rules
Dispute), 88th Cong., Ist Sess. (1963) .......... eee
“TLR. Rep. No. 713, 88th Cong., 1st Sess. (1963) ..... 15
Heatherington, State Economic Regulation & Sub-
stantive Due Process of Law, 53 Nw. Ly Rev. . is
(1958) ...:... AACR esdUesnesevagacsassseveeess eo a
79 ICC Ann. Rep: (1965) .....0.....0005. rea 44, 50
Oe Ree ee, HR CUED 8 veda vcccestacbeverveces 44, 50°
Natl. Transp. Safety Bd., Release No. 382- 7273 (April .
Rk ee I Ee ee er re er ery oe a pa 51
_ sNote, 40 Micx. L. Rev. .. 2). eee amu weet - 58
Report, PreswentiaL’ Rartzoap Commn. (1962) ..13, 43, 47
Report, Sects. or Ramroap Sarery snp LocoMoTIvE
Inspection, Bureau om Rartroap SaFety AND Serv- —
a Ok, eee ree akc Weu eee nes 50
St. Louis Globe-Democrat, May 23, 1968 ,........... 51°
Stover, THE ‘Cutcaco History or American Rat- ~
ee __ AOR Tare ere cee e-em trr re eee 9°
Weber, Public Policy and the Scope of Collective Bar-
gaming, 13 Las. L. J. 49 (1962) . (acetuauwisatene be 9
- x &
Nos. 950 and 973
SUPREME ome OF TH UNITED STATES
October — 1967
e ‘ No. 950 .
“ BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN,
~ BT AL., Appellants
‘Ve
CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY,
ET AL., Appellees
~
No. 973
ROBERT N. HARDIN, PROSECUTING ATTORNEY FOR THE SEVENTH
JUDICIAL CIRCUIT OF on ET AL., Appellants
v.
CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY,
ET AL., Appellees
-
Appeals from the United States District Court for the
Western District of Arkansas ,
BRIEF FOR THE APPELLANTS
z
OPINION BELOW
' The en Opinion of the District Court for the
Western District of Arkansas a — is reported at
274 F.Supp. 294. |
: | jamie:
The Decree of the District Court was entered on Oc-
__ tober 2, 1967. A. 1207. Notice of Appeal was filed on
_ October 31, 1967. A. 1209. Jurisdictional Statements were
aie ° . wu ~ =
e 3
! . °
a | : ; oe 6
i. “
Ann. §§ 73-723 through 725, 73-726 through 729 (Repl. , -
_ 1957). This concept, as well, became integral.to Arkansas
. civil litigation. E.g., Missouri Pac. R.R. v. Moore, 210 me
; Ark. 643, 197, 8.W.2d 284 (1946).
The chapter. was ‘expandétl further in "1911, 1915 and.
1917. Some provisions were enacted in contemplation ‘of
the crew composition required by: the 1907-13 statutes;
. locomotives, for example, must be constructed so that |
‘the engineer and fireman will’be’located under the same
_ Poof of engine’ cab at all times’’ while on duty. Axx.
” Shar. Aww. § 73-701 (Repl. 1957). The importance of sig-
nals, switches and car construction was emphasized by:
legislative standards. E.g., Ark. Star. Axn. §§ 73-708,
711, 714 (Repl. 957).
| _ Modern revision of ‘the railroad safety chapter began
in the 1950’s. Adequate head and tail lights became oblig-
atory for track motor cars used for employee transpor-
tafion-in 1951. Axx. Srar.’ Ann. § 78-740 (Repl. 1957). In
1953, locomoti¢#es and cabooses were required to: have first
aid kits, ‘‘sanitary drinking ‘cups and pure ice cooled
, drinking water, dispensed from a suitable: ‘sanitary con--
; _ tainer.’’ .AgK. Start.: AKN, §§ 73-741 sealemily 744, a
1957). oo 4
%
The legislature responded to conditions of minions
railreading by excisions as well. In 1961 beneficiaries of the
duty of all persons running trains to keep a constant look-
_out were redefined as ‘‘all persons, irteluding licensees and
trespassers, and property.’’ Ark, Srat. Ann. §.73-1002
(Supp. 1967). The code section immediately . succeeding ~
_» the full crew-laws was repealed after the ‘inception of this
litigation. Arx. Srar. ANN. § 73-730 (Supp, 1967). No
longer, the lawmakers decided i in 1965, should freight cars ‘
at the os of passenger trains be banned by a 1868 enact- “f
ment.
& 5 '
~~ filed on Décember 26 and 29, 1967. A. 1209. Probable’. -
jurisdiction was nofed on March 4, 1968; the appeals in .«
_ No. ,950 and 973 were consolidated. . A. 1209. The juris-
; dicGion of the Supreme Court to review the decision on -
direct cee is: conferred by 28 U.S.C. § — i ee
CONSTITUTIONAL PROVISIONS AND
STATUTES a.
B. s. Coner. art. I, $8, cl. 3; art. VI, "62; and’ amend.
XIV, §1, are set forth as Appendix’ A hereto. m
~ ARK. Srar. Ann. §§ 73-720 through 722, 73-726 through
729 (Repl. 1957), = set forth ‘as —— B hereto.
ae QUESTION PRESENTER
‘ view of consistent prior legislative oni judicial ap- 7
proval, have conditions of Arkansas railroading so
changed that the Constitution of the United States now .
deprives the State of Arkansas of power to enforce as-
- pects of its railroad safety’ laws which regulate the
employment complement of certain freight and switch
traiti crews operating in the state?
3 :
—
‘
© “
.
_ “STATEMENT OF THE CASE
Phe statutes challenged in this case were passed by the
General Assembly of Arkansas to delineate minimum train
crews for 7 of railroad peregoo in the
State.
Ark. Srat.. Ann. $§ 73-720 thtongh 722° ( Repl. 1957).
; require a minimum ofew of an engineer, a fireman, a con-
ductor and three brakemen for freight: trafhs, except for
small companies and short trains. Ang. Stat. Ann. §§ 73-
_ 726 through 729 (Repl. 1957) require“S minimum crew of
an engineer, a fireman, a foreman and three helpers for
switch trains operating across- public crossings in urban
communities, except for small companies. - _
Six. large interstate failroad companies initiated this
action before a three judge court in the Western District
of Arkansas’on April 10, 1964. Their. complaint sought
an injunction against -enforecement of the statutes appli-
cable to freight and switch crews, as violative of the
Fourteenth Amendment 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 expanded
federal occupation of the field make prior . holdings ‘in-
’ apposite. The primary basis for the latter argument «vas
- thé 1963 .passage of Public Law 88-108, 7 Star, 132, 45
U. S. C. following § 157.
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
‘ allegations of the complaint, and alleged: tha! “he chal-
lenged statutes protect the public safety i « manner
within the power of the state to effectuate. Discovery
'
PLT a TRIE aR AEDES EN RENE ITT DIE RNS OES il acd neal PERI atiaiisasaaii SPRUE OEE deapesiibisan rate ha ait hatlin aii SPM:
ay
6: .s0l
»
| proceedings were suspended upon the filing by the rail-
roads of a motion- for summary judgment based upon su-
‘premacy clause, commerce clause and equal protection =
- issues. The supremacy ¢lause contention was found suf-
ficient, the court holding the Arkansas statutes ‘‘in sub-
“stantial conflict with Public Law 88-108 . . . and the pro-
-ceedings thereunder, and . . . therefore unenforceable.’’
Chicago, RI. & Pac. RR. v . Hardin, 239 F. a 1 (W. D.
Ark. 1965). -
The ES, Court reversed, finding that rae did
- not isitend to supersede the state minimum crew laws.
_Brotherhood of Locomotive Engineers v. Chicago, R.-1. &
Pac, R.R., 382 U.S. 423 (1966). Phe Court noted that-a
three judge court was justifféd in view of the various con-
stitutional contentions of the railroads, and found a dis-
- crimination agajnst interstate commerce arguinent by the
railroads ‘‘without merit’’ on the record before it. 382
US. at 428, 437-38. ;
.On the remand for trial of the remaining issues, after
Court again invalidated the statutes on October 2, 1967.
Chicago, RI. & Pac. R.R. v. Hardin, 274 F. Supp. 294
(W.D.Ark. 1967). It enjoined enforcement of the legisla-
‘tion unconstitutional as violating - -the due process clause
_ full evidentiary presentations by all- parties the District, .
of the Fourteenth Amendment and the commerce clause-of
Article I of the Constitution of the United States.
On October | 21, 1967, Mr. Justice Byron R. White stayed _
. the injunction pending the disposition of the appeals. On
March,4, 1968, probable jurisdiction was noted for con-* ©
solidated appeals of the brotherhoods and the state.
eck
¢ SUMMARY- OF ARGUMENT
- The challenged statutes are shite legislative judgments |
™ areas of historic state concern.
~
Full crew. laws’are a small portion of Arkansas railroad |
safety laws. The statutory chapter has been considered at
length and in, detail by the legislature without change in |
. the full crew requirements.
In 1958 the railroads made a major effort to iia: the
statutes by initiated petition, using the same arguments
that are now heing presented to this Court. The people of
Arkansas voted against repeal by a substantial margin.
The federal Congress also has considered the merits of
- the crew consist issue. It made a caleulated decision not
to preempt the operation of such statutes. Brotherhood
of Locomotive Engineers v. Chicago, R. 1. & Pac. RR., .
382 U.S.°423 (1966). The reason for such vegas is jon
ther indication of rational legislative support..
The. challenged statutes have received constubaed au-
thoritativg judicial validation in response to. legal con- —
tentions identical to those at bar.
In addition to the 1966 dectitvm “in ‘the instant case, °
Arkansas full crew laws have been challenged on many
occasions. Invariably, they have withstood commerce
clause, preemption, due process and equal protection con-
stitutional challengés. Chicago, R.I. @ Pac. Ry. v. Arkan-
sas, 219-U.S. 453 (1911); St. Louis, .M. é& S&: Ry. v. Arkan-
sas, 240 U.S. 518 (1916); Missouri Pae. R.R. v. Norwood,
283 U.S. .249 (1931). They were niéted with approval
in 1945 in a leading commerce clause case. Southern Pac.
Co.-v. Arizona, 325 U.S. 761, 779 (1945).
State courts, relying on such decisions of this Court,
‘have validated full’ crew laws in several jurisdictions,
game, and just as necessary, now as then.
ced
particularly in . recent years. Yeu ew York Cen. R.R. v. Lef-
kowitz; 259 N.Y.S; 2d 76 (Sup. Ot. 1965), affmd., 282 N.Y.S.
2d 68 (App. Div. 1967); Public Service Commn. v. New
York Cen. R.R., 216 N-E. 2d 716 (Ind. — cert. den.,
385 U.S. 843 (1966).
In view of this authoritative judicial iii the a
open inquiries concern changes i in railroad practices which
might — * crew, consist, and. current costs of compliance.
“The iene sie failed to prove that the challenged
statutes have become unnecessary and arbitraty under
? aan conditions. |
»
: a?
‘As to the first open issue, the sailvonis have failed to
establish changed conditions or technology which elimi-
nate or reduce Semnypety the hazards to which _
_ crew laws are. related. ,
The firenen in fact performs crucial functions such as
maintaining the motive power, keeping a lookout, relief,
inspection and emergency duties. The brakemen, whose
employment was litigated extensively in 1931-33 in the
Norwood cases, have duties that are substantially . the
c
thcembaniion. of the details of alleged changes ‘it in Tail-
_Yroad equipment and° facilities likewise shows no changes
~~ which materially affect full crew safety considerations.
Most of ‘the “‘modern’’ developments alleged by the rail-
roads either were in effect at the tinfe of Norwood, or are
of speculative value in view of their limited actual use
in Arkansas. Justification for the challenged statutes is
‘also found in acceleration of certain hazards with a proxi-
| mate relation. to crew-consis .” 3
. *
OT OSL ELIOT OIG SINR LINO BD A ATO ORE PMG ROD Lt SEE
nw os ’ . te al Prete iis
A ee ET
a
The railroads have failed to prove thlat the. cost of ‘com-
plrance with the challenged statutes. has become unreason-
~ ably burdensome under present conditions.
‘The most dramatic failure of proof concerns -cost of
- compliance. The railroads simply add up the wages and _
fringe benefits of the fireman ‘and one brakeman. The
decision of this Court:in Norwood teaches the first defect
in this presentation: to be meaningful, employment cost
must be established by relating a unit of wage cost to the
~ | amount and kind of work “performed.
Most important, the railroads have failed to mention
any offsets, costs that would be. ingurred if the Arkansas
' * statutes were invalidated. From. figures accidentally made
available, the gravity of such offsets becomes’ apparent.
The cost per Arkansas mile for operating crews has méin- _
tained the same ratio to the cost per mile in the system
as a whole during a period which includes the substantial ge
national crew reduction a hice in 1964.
The challenged statutes are pensonally related to state
interests in the operation of Arkansas railroads.
At least two new positive bases of support for the full
crew laws are apparent from the record. . ;
First, statistics establish four propositions beyond seri-
ous challenge: railroading is a hazardous business; rail-
road accidents have increased substantially since 1964;
operating crews’ have been. reduced substantially since’
1964; and the most significant aecident increase since 1964 -
has been in that kind most related to employee perform-
ance or non-performance.
' Second, one consideration which dominates the testi-
‘mony of working railroaders is the problem of speed.
Railroads press their employees for faster operation, but
all witnesses concede that a smaller crew makes operating
> 2
DGD IGS COLMA CP OB BOGE LEGO LIND EI” OL BVOC IA IO ACE LG LO LLOE! SC LOEELLAE ITE SOLO LE, DSS t! va ae > in tiioime & me P " ey
—3
alla
°
time longer. N othing in ‘the vultnnia safety wanted Seth.
fies lea¥ing resolution of’ the tension between these two
concepts 1 to the railroads themselves."
Each of these points establishes the ‘reasonableness |
of ‘the legislative eee in ‘retaining’ the challenged
statutes, © iy . 2
dallas of the challenged ‘statutes under any dilies
constitutional characterization also compels judicial vahi-
dation. =
=
The alternative aia —_ by the cdurt below, burden
on ‘commerce, is subject to the same infirmities as the due*
_ process. characterization. ° Farther, in discussing it the
-eourt reveals a general erroneous attitude towards the
case in that an essentially legislative judgment i is made.
There is no reason for the established principle of. judi- :
_ * eial abstention from legislative decisions not being appli-
eable here. See United States v. Carolene Products Co.,
_ 304 U.S. 144 (1938) ; Williamson + v. Lee Optical, 348 U.S.
- 483 (1955):
The railroads have ‘iomouneed'' a plan to argue about a
@lassification infirmities, under discrimination against com-
_ merce and equal protection. theories. The classifications
_ are not contiguous as an interstate-intrastate dichotomy.
‘Exemption on‘a total mileage basis is supported by fac-
tors such ‘as length and speed of trains and ability to pay
‘the alleged cost of compliance. A distinction from other
forms of transportation is obvious from the nature of the
_ industry, and indicated by the absence of plenary federal
control over je railroads. |
“ : Per eee
"7. Tae Cxatrencen Starures Are Viasie Lecisative
J UDGMENTS mv Angas or Histori¢ State Concern.
A.
The two full crew laws‘ in dispute comprise a small
portion of Chapter 7 of Title 73 of the Arkansas Statutes,
entitled ‘Equipment of ‘Railroads—Safety Provisions.’
Arx. Stat. Ann. §§ 73-701 through 744 (Repl. 1957). The
history of the chapter demonstrates’ development by
Arkansas lawmakers of an integrated pattern of protec-
~ tion ‘for citizens of the state from the hazards of railroad-
ing. al
The sina and imoatappliod sections are 1868 rules?
for sounding bells and whistles and :placing warning signs _
at. public crossings. Ark. Stat. Ann. §§ 73- 716, 717: (Repl.
1957). Testimony of an engineer and fireman about com-
pliance- with such ‘requirements may be decisive in per-
- sonal injury actions. E.g., Kansas City S. Ry. v. Edwards,
. 224 Ark. 124, 271 S.W.2d 935 (1954).
- A major “contribution to Arkansas jurisprudence was
the — itt 1891, of the statute establishing a duty to
a Any. dininetisinadion Of these statutes risks reflection of par-
— vigor intrinsic toa dispute which has raged for over a cen- .
See Weber, Public Policy and the Scope of Collective Bar-
oabine, 13 Las. L. J..49 (1962). The term “full crew laws” seems
preferable to others available such as “excess crew laws” or “full
- safety crew laws.” See A. 759, 1144; Sowithern Pac. Co.’ v.°
Arizona,. 325 U.S. 761, 779 (1945) ; Brotherhood of Locomotive
Engineers v. Chicago, RI & Pac. RR, 382 U. Ss. 423, 434 (1966).
ec
2 State railroad regulation began in 1838, in “Rhode Island.
SToveR; THE CHICAGO History OF AMERICAN RatLroaps 125°
(1961). 32 .
PGA RAGAN ORI OIL ALLE AN IDISE PPLE ENE GE GILLES LEE SLOG SAS) SELIG LOGIE LI thls hint! 08 ee | sions ahi TD ~
‘ ¢
die - 10 ‘ih
- keep a lookout. Azx?Srat, Any. § 73-1002 (Repl: 1957). .
ony thereby imposed for ‘all persons running trains.
is. State upon any railroad, to keep a constant lpok-
and -all railroads”? has been a fount of litigative develop-
ment throughout ensuing decades. (Emphasis added.)
E.g., Overstreet v. Missouri: Pac. R.R., 195 F.Supp. 642
~ . (W.D. Ark. 1961) (personal injury judgment for defendant
. based on satisfaction of lookout ~ ~* members of full.
crew).
‘Tn 1907 substantial ‘additions were made to the railroad 7
- safety chapter. Full crews weré required on freight trains.
Ark. Stat. Ann. §§ 73-720 through 722 (Repl. - 1957):
Headlight standards were specified. Agx. Star. Any.
-. §§ 73-704 through 706 (Repl. 1957). Trains were not per-
mitted to obstruct crossings for mere than ten minutes;
violation is ground for civil liability as well as criminal
penalty. Ark. Seat. Ann. §§ 73-718, 719 (Repl. 1957) ;
St. Louis, 1.M. & S. Ry. v. ». Wells, 102 Ark. 257, 143 SW.
1069 (1912). ,
_ The principle of full crews was extended to vaieehiddea
| and switching operations in 1909 and 1913. ARK. Star.
3 The lookout statute is ; part of a separate statutory ites en-
titled “Liability for Injuries to Persons or Property through Op-
eration of Railroads.” Arx. Strat. ANN. §§ 73-1001 through 1015 .
. (Repl. 1957). Statutes dealing primarily with motorists also com- -
plement railppad safety provisions. E.g., Ark. Stat. ANN. § 75-642 ,
( Repl. . 1957), requires railroad companies to place special signs
- at crossings phen eeer ‘as hazardous by public officials. A com-
plete chapter deals with “Duties of Railroads with Respect to Em- ©
ployees. ” Ark. Stat. ANN. §§ 73-901 thrpugh 922 (Repl. 1957).
* Siftce the railroads are. liere contending that the statutory ‘full
crews make railroad operations more hazardous (e¢.y., A. 11, 131),
the omission of the full passenger- crew law from this challenge
is illogical, at best. It requires a crew of an engineer, a fireman, |
. a conductor, a porter and a flagman or brakeman for obviously
shorter trains uninvolved in complicated switching operations. Per-
haps the failure of one previous repeal endeavor which encom-
passed the, passengér crew ‘statutes suggested deletion as mores ©
palatable public relations,..See Hope v. Hall, 229 Ark. 407, 408,
n. 1, 316 S.W.2d 199, 200 hagucs
Ba oo Pee oe ae rc
- Sition, Such heater Teas were received % ‘at trial as though the wit-
. Tailroad Safety chapter: and related statutes, retention of —
. the. full crew laws is notable.® In any event, the railroads *
‘employed an alternative procedure in-a 1958 effort to .
rs repeal: all ‘Arkansas full ‘crew laws by initiative petition.
gion of. the people. On. ‘November 4, 1958—five decades |
y » ; : + .
> y, . * a. : Si. Sas .
. : “2 = . .
r ft . be 2. nae '
Cae Oe eee.
In thgface of extetisive legislative psnitibabiitted of the
“An Act to’ Repéal the Full. Grew «<Laws’’ was initiated
for popular vote at the. General Election of 1958) Hope -
/v. Hall, 229 Ark. 407, 316 S.W. 2d 199 (1958). Its preamble
contained the. same entreaties the railroads: now address
- WHEREAS, ‘Arkansas’ is one of the relatively few |
‘States which by law prescribe minimum’ crews on cas e
certain trains operating in the state, thus resulting in ©
higher operating expenses to ‘the railroads in Ar-
kansas. than in neighboring states, all to the detri-
ment of shippers and the ,traveling public; and
_ WHEREAS, railroads now have improved roadbeds <q Made
'» and grades and have developed and now use equip-
‘sment that can -be operated -with safety to the public -
and the employees — ‘smaller crews than ——
by law... . : 3
-
“999 Ark. at 408, n. 1, 316,9.W.2d at 200.
The ‘idioadh scenatal cleared a challage t to ‘the suffi-
ciency ‘of its ballot title, but could not survive the deci-
~ after their enactment and only one decade ago—Arkansas ‘ my
full crew. “sie were: ‘reaffirmed, 162,748 to 130,465. DX 2.®
er ee a. oe | =
5 Arkansas does not maintain official or unofficial reports of ;
legislative history. ae
6 In an effort to avoid a video trial before the thi ainibe
court or reference to a. master,.the parties agreed to a pre-trial
procedure whereby much of the testimony would be presented by ‘
written statement, with cross examination, where desired, by depo- :
Extensive federal legislative consideration of crew con-
sist problems, beginning in 1964, is not without significance
_ for the constitutional issues remaining in this case.< Con-
- gress did not intend to preempt state full crew laws. .
_ Brotherhood. of Locomative ‘Engineers v. Chicago, R.I. &
Bac. R:R.,.382 U.S. 423 (1966). ‘The reason for such legis-
lative abstention iS additional support for the statutes .
under attack. eee
Congress was presented with substantial evidence‘ about. e
the effect of the consist of railroad créws -upon safety;
presentations of the: parties, in fact, closely paralleled
those of the-instant case.7.E or + Hearings,on S.J. Res. 102 ‘
nesses had appeared in person. ‘A. 43-44, Symbols used to desig.
_ nate these and other exhibits are: Sg
PX: Plaintiffs’ Exhibit
IRX: Intervenors’ Rebuttal Exhibit (cross examination)
DX: Defendants’ Exhibit
* IX: Intervenors’ Exhibit oo
PRX: Plaintiffs’ Rebuttal Exhibit ine examination)
‘The witnesses who presented statements for. the defendants were
_. Not cross examined... . ‘
* .
Tv Decades” of legal neato: in the créw consist dispute. re-
-semble a. monstrous opéra on tour, with the same witnesses re-
peatedly taking the same. positions for the same parties. In addi-
tion to the 1963 and 1965-66 congressional hearings and the many —
Arkansas full crew law cases, see, ¢.g., PORT, PRESIDENTIAL
RaILRoaD Commn. (1962), PX 19; Brotherhood .of Locomotive
_ Engineers v. Baltimore & O. R:R., 372 U.S. 284 (1963) ; Arbitra-"
tion Award No. 282, 41 Lab. Arb. 673 (1963), PX 20; Brother- .
hood of Locomotive . «Firemen -v. Chicago, B. & Q. R. R., 225
F.Supp. 11 (D.D.C. 1964), affmd:+331 F.2d 1020 (D.C.Cir. 1964),
cert. den., 377 U.S. 918 (1964); New York Cen. R.R. v. Lefko-
witz, 259 N.Y.S. 2d 76 (Sup.Ct. 1965), affmd., 282 N.Y.S.2a°68
| (App Div. 1967) (New. Y +k ‘ful crew law case) ; A. 248-50,
281, 346-47, 373, 500-04. Administrative tribunals ‘regularly find -
“that firemen are presently performing useful’ services,” that crew
size: “necessary to assure safety and to prevent undue work loads
must be determined primarily by. local conditions” and similar factual |
conclusions that in themselves support state legislative action. E.g.,
¢
“y+ 94 = LS
.
ne re See ET ENE ED pibdiibiissohen sa sain aia i Seite th slag ere ese C kanal
Me.
. g
(Railroad Work Rules: Dispute), sth Ome. i ist Sess. "
491-96, 631-34 (1963); Hearings on H.J. Res. 565 (Rail-
' road Work Rules Dispute), 88th Cong., 1st Sess.,. 711-23,
996-99. (1963). The. following exchange took place, for
' example, between the Chairman of the House Interstate
Commerce Committee and a brotherhood representative:
Toe CHamMan. Before the gentleman leaves, and for
my own information, I would like to raise the ques-.
tion: Why is it considered in one jurisdiction neces-
sary to have a different consist of crews from another
. jurisdiction? aFe 3 ‘
Mr. ‘WaGyer. Mr. Chairman, that is one of the compli-
cations that we run into in our work. As-I said in
my testimony and in my statement, you have different
conditions on different divisions on the same railroad.
_ The.men work under different conditions. “You have
mountainous territory. You have the deserts. You |
| ‘. \ . “
have: railroads where there is a lot of curves, espe-
cially in switching operations: in industrial plants. |
- There are not two. that are: the same. For that réa-
son you have the difference in the crew consist. If -
you were referring to State laws, Mr. Chairman, I .
: believe that could be answered in this manner: that
the lawmakers in the ‘various States evidently were
convinced, ‘and’ feel, that a law of that kind is neces-
‘sary in order to. protect the public” ‘that we ‘are talking
about here today. There are crossings. )
‘Tue Cuareman. I am compelled to make the statement
now, Mr. Wagner, I wish it was: the general policy
_ . throughout the Government to give greater recogni-
_ tion to the-application of the State laws based on
what they think is. necessary in. those areas.
PX 20, _ Arbitration’ Award No. 282, 41 Lab. Arb. at 688; 694.
’ The railroads continue to initiate court ‘suits in spite of their
constant result: although the preponderance of evidence may per-
" mit ‘reduction. of crews, the issue is not so clear that the Constitu-
tion deprives states of power to conclude otherwise.
s
Hy
wor eare nm en Y
OT mello
Hearing on H.J. ies 565 (Railrend Work Rules _—
88th Cong., 1st Sess., 837-38 (1963).
~ It was that’ same committee chairman, ‘Renreseitative
Harris of Arkansas, who announced on the House floor ©
that the committee had considered state full crew laws, - |
including their validation by this Court, and concluded:
‘The committee does not intend that any award made —
under this section may supersede or modify any § State law .
relating to thé manning of trains.’’ 109 Cone. Rec. 16122
(1963) ; H.R. Rev. No. 713, 38th Cong., Ist Sess. 14 (1963). -
- See also Brotherhood of Locomotive Engineers v. Chicago,
RI. é Pac. R.R., supra, 382 U.S. at 433-37.
After passage of Public Law 88-108 in 1963 to resolve
_ a particular collective bargaining crisis ofi the crew con-
sist issue (382 U.S. ‘at 433), Congress has had occasion to
review the results af its efforts. In hearings before the
Senate Committee on Opinmeree, the subject of state full
crew laws again was raised ; attention was called to the:
1966 decisior of this‘Court in this case. Hearings on the
Administration of Public Law 88-108 (Railroad Work
Rules Dispute), 89th Cong., 2nd Sess. 1005, 1021-23 (1966).
The alarming recent national increase in railroad acci-
dents has been noted. 114 Cone. Rec. 83987 (daily ed.
_ April 10, 1968). To date, additional federal legislative fe
action has not been taken. -
TI. Rie CHALLENGED Statutes Have REcEIvep Consistent
_AUTHORITATIVE JUDICIAL VALIDATION IN RESPONSE. ro LEGAL
Contentions IpEnTIcAL TO THOSE aT Bar. ;
‘ ° A.“ | Me
From their inception, Arkansas full crew laws have
~ been under persistent attack by. railroads to which they
apply. Shortly after the passage of the full freight crew
act in 1907, a multifarious challenge to its constitutionality
was rejected by the Supreme Court. Chicago, RL. Pac. -
Ry. v. Arkansas, 219 U.S. 453 aes . .
— 16—
The first plaintiff in the instant case asserted in 1911
that its trains had modern equipment such as automatic
couplers and air brakes so that hand coupling by a brake-
man was not necessary, that there were no duties to be
performed by a third brakeman, and that the statute re-
quiring employment of three brakemen forced it to spend
a large amount.of money for a useless purpose. 219 U.S.
at 458-59. Violation of the due process and equal. protec-
- tion clauses of the Fourteenth Amendment and the com-
merce clause were urged.:
The Court found the constitutional questions settled by
its former decisions on various state railroad. laws;
lengthy discussion was deemed unnecessary. -
As to the commerce clause, the statute was ‘‘enacted
in aid, not in obstruction’’ of those traveling in interstate
commerce. ‘‘Beyond doubt, passengers on interstate car-
riers while within Arkansas are as fully entitled to the ©
benefits of valid local laws enacted for the public safety
as are citizens of the state.’’ 219 U.S. at 465-66. |
The railroad equal protection argument apparently was"
based on the statutory exemption for companies with. less
than fifty miles of track. Referring to an earlier case,
New York, N.H. dH. R.R. v..New York, 165 U.S. 628
(1897), which had approved a fifty mile railroad classifi- eens
-cation, the Court held that ‘‘the statute being applicable
alike to all belonging » to the same class, there is no basis
for the contention. that there has been a: denial of. the .
equal protection of the laws.’’ 219 U. 8. at 466. -
The due process point was discusséd in terms which
became familiar in A sairens aes years.
a ETN effect of the commerce clause also was Secanint.
Until Congress takes “entire charge of the whole subject of the
equipment of interstate cars . . . the statutes of: the State, not
in their nature arhitrary, and which really relate to the rights and
_duties of all within the jurisdiction, must control.” 219 U.S. at
ite. 5 ee
ak
grr emer escent omer eee
SL IR IONE ELEIEP TRIE EEE OE LORELEI IE EL SELLE, IEEE BF Ee Ee
—17—.
Under the evidence, there is admittedly some room —
for controversy as to whether the statute is or was -
necessary; but it cannot be said that it is so unreason- .
able as to justify the court in adjudging that -it is
merely an arbitrary exercise of power and not ger-
mane to the objects which evidently the state legis-
‘lature had in. view. . Jt is a means employed by: the
' State to accomplish an object which it is entitled to
-. accomplish, and such means, even if deemed unwise,”
' are not to be condemned or disregarded by the courts,
if they have a real relation to that object.
219 v. S. at 466. ~~
Wnhasaied: the railroad launched bebuiieaitadtiy the same
' attack on the 1913 Arkansas full switch crew statute.
Again, and more summarily, the Court rejected their con-
stitutional contentions and; upheld the legislation. St.
Louis, IM. 4 S. Ry. v. Arkansas, 240 U.S. 518 (1916).
The employer contended that the statute violated the
due process and equal protection clauses of the Fourteenth
Amendment and tat ‘‘it operates as an interference with -
interstate commerce.’’? 240 U.S. at 520. Such grounds, the
court noted, were “in effect disposed of by prior de-
_cisio ae S. at 520.
Two new factual elements were urged in ‘atiet of
the equal’ protection theory: the switch crew law, as op-
posed to the freight crew law, had no exemption ‘based
on the length of trains; and railroads uncovered. because
of their total trackage switched over the same. crossings
as the litigant without the crew required by statute.®
Both facts were rejected as classifications infirmities.
But the. basis of both [statutes] is safety to the pub-
lic though the urgency in one may not, hoe as great as
® Application of ‘the full: switch crew law is also limited to”
public crossings in urban communities.
cay eae > ee
—, =e
the urgency in the other. ... We have recognized the
~ impossibility of legislation being all-comprehensive
and that there may be practical groupings of objects _
which ‘will as a whole fairly ‘present a class of itself,
. although there may be exceptions ‘in whgch the -gvil
aimed at is deemed not so flagrant.
2 240 US, at 521.
)
It was fifteen years: before the next ‘invalidation effort.
Missouri Pac. R.R. v. Norwood, 283 U.S...249, 809 (1931) ;
13 F. Supp. 24. (W.D.Ark. 1933), affmd., 290 U.S. 600
| (1933). Missouri Pacific, the principal railroad advocate
in the instant. case, argued unsuccessfully in 1931 and —
. 1933 that changed operating conditiens and congressional
action gave new substance to\the old due process, equal
protection, commerce and supremaey~Clause contentions.
ee
The Supreme Court issued three Norwood orders.. In
a the issues were presented on pleadings and affidavits.
Among other things, the railroads argued, operating con-
ditions were different than when the earlier cases had
. been decided, roads and equipment had so improved that
longer and heavier trains could be operated more safely
than earlier lighter trains, trains ‘in other states were
being operated safely. with crews: smaller~than those in
Arkansas, the law required payment for services and time
not needed or used, union contracts: with certain brother-
hoods in other states permitted smaller crews, and the
railroad would save $606,000 per year if one brakeman |
could be eliminated. 283 U.S. ‘at. 253- 54.
The Court pe a lower court. ives: Against a
background of general presumed’ constitutional validity
and the specific previous decisions, the ‘‘burden is on the
plaintiff by candid and direct allegations to set forth in
_ its complaint facts sufficient plainly to show the asserted
invalidity.’’ 283 U.S. at 255.
SOO NE PLL LAL OLLIE EL LE SLOL NI OIIGOGE LD IIEE LLL AOI GOFF TIT dati
e . ener a if Sill anda 5 a
- ss ~ - — °
preeenetonee™
‘
t.
;
|
‘
*
ow ree
°
one — —
AGEN ILO LIPASE IG OLLIE IE LEGER, PE Siac sabia ai
—19—
As to commerce, equal protection and due-process clause
arguments, the record was insufficient to find repugnancy.
There is no showing that the dangers against which
these laws were intended to safeguard employees and
the public no longer exist or have been lessened by the
improvements in road .and equipment or by~ the.
changes in operating conditions there described. And,
for aught | that appears from the facts that are alleged,
the same or greater need : may now exist for the speci-
fied number of brakemen and helpers in freight train
‘and swiiching crews. It is not made to appear that
the expense of complying with.the state laws is now
"relatively more burdensome than formerly.
283 U.S. at 255.
| : Rejection of the preemption argument featured reason-
"ing that came to be critical in subsequent legislation and
litigation. 283 U.S. at 256; Brotherhood of Locomotive
Engineers v. ae * é Pae:' “R.R., supra, 382 US. | a
at 429, 434. . ‘
But the hail, of the railroads was a piles
The Court agreed to modify- its original Norwood judg-
ment to be without prejudice to amendment of the Dis-
_ trict Court pleadings. Missouré Pac. R.R. v. Norwood, 283
' . U.S. 809 (1931). After amendment, 1900 pages of testi-
mony, and 100 exhibits, the statutes were upheld again.
Missouri Pac. RB. v. Norwood, 13 sett at 24 (W. D.Ark.
1933).
The. three judge N orwood suites delineated the issues.
With commendable perseverance, counsel have argued
: the validity of these laws as violating the Interstate —
Commerce provision of the Constitution, as invading -
a field occupied by congressional regulation of inter-
state commerce, and as violating the Fourteenth
cia meaeaeed We deem all of these issues settled by .
te
>
sstieriumendaaninenaheeaa ~ to ym
, _ meee ,
oe "Petes!
the above three decisions [Chicago, RI. & Pac., St.
Louis, I.M. & S., and Norwood). of the Supreme Court,
except one. That issue arises under the Fourteenth .
i Amendment. Pot paopetae
13 F.Supp. at 25, Evidence was “ Himitea to two ‘ie of
inquiry:
. changes i in conditions sieand-t in the amended pe-
tition which would tend to show that the dangers to
the employees of plaintiff or to the public, against
which the statutes here in question were intended to
guard, no longer exist or have been so. materially
lessened as to render. the Statutes unnecessary. and
arbitrary under. present conditions ... [and] that the
_ expense of complying with these statutes is now rela-
tively so much more burdensome as to render com-
pliance therewith at this time* unreasonable.
13 . Supp. at 25.10
The trial court proceeded to ‘a careful and comprehen-
"+ ive: examination of the evidence. * General policies, equip--
ment, roadbed and trackage, operating practices including
_ duties of trainmen, and costs. were subjected to detailed
- scrutiny. 13 F. Supp. at 26-37.: Finally, as to the narrow
open issues, the court concluded that the full crew laws
were not ‘‘clearly. unreasonable and arbitrary,’’ that the
10 In- what has become a familiar ritual, the position of the par-.
ties om these two issues was described as follows: “Plaintiff regards
the evidence as showing that there have been: such improvements in
roadbed, equipment, safety training and devices, and operating con-
ditions that smaller crews can now: perform these freight and
switching services with entire safety, and with even less danger’
of injury to the crew and to the public than the number required
by these laws, and that the expense has become so burdensome as
to interfere’ with other necessary .calls upon its limited resources.
_ Defendants concede that considerable improvement has been made,
_ but .contend. that some of this has only affected (not :removed)
hazards, while other changes have positively increased the hazards,
and that there remains a necessity for the full crews.” 13 F.Supp.
at 26. Compare 382 U. S. at 427; A. 1192.
€
NP OOOO IEA OD 2 bain ws OLY A TTL, POLI LN ONS LL IIIT LE LON AY LILES BILAL LIVE LO EP AONE OY OEY IO et
ste — -—_ . oa ae . ae -- -
“ railroad was not “*deprived of ey without due proc-
ess of law,'and that the statufes are valid.’’ 13 F. Supp.
at 37. The Supreme Court affirmed, observing merely that
there was ‘‘no reason to disagree with the determinations
of fact reached by -the District Court. » 290 U. S. 600
(1933).
During the interval between Norwood and the instant :
case, the ‘railroad campaign was further undermined when
this Court cited its Arkansas full crew law holdings with _
approval in a basic‘ commerce clause decision.’ Southern.
Pac. Co. v. Arizona,'325 U.S. 761, 779 (1945). »
- The latest consideration of Arkansas full crew laws by
tye Court furnishes additional guidance. Collateral con-
tentions of each side were rejected by the Court in lan-
guage which indicates limits for the current controversy.
| Brotherhood of Locomotive Engineers v. er RJ. &
Pac. R. R., supra.
The Ledtherhooils and the state argued that the com-
merce, due process and equal protection clause conten-.
tions of the complaint were so insubstantial as a matter
of law that a three judge court was not justified; that
contention was rejected. ‘‘Whatever the ultimate holdings
on the questions may be,’’ Mr. Justice Black declared, ‘we
cannot dismiss them as insubstantial on their face.”? 382
U. S. at 428, ‘‘The pleadings, therefore, at least to some
-extent, presented factual issues falling for the introduc-
tion and determination of evidence under prior holdings
of this Court.’’ 382 U. S. at 427.
The railroads also urged .summary invalidation.
grounded on the mileage classification of the full crew
laws, ‘‘Aside from the fact that such an argument was
apparently rejected in the prior . cases upholding the .
constitutionality of the Arkansas statutes,” - the Court
replied, ‘‘we’ think it is wholly without merit.’’ 882 US.
at 437.
Arkansas courts, of course, have placed great interpre-
-- tive reliance on the Arkansas full crew law decisions of .
this Court. E# .g:, Kansas ‘City S. Ry. v. State, 116 Ark. °
455, 174 S.W. 223 (1915); Hope v. Hall, 229 Ark. 407, 316 ©
S.W. 2d. 199 (1958). - Application of the mileage classifi- ‘
cations, for example, has been in light of approved power —
to protect the ‘‘health, safety and welfare’’ of thegublic. ~
wa Kansas City §: Ry.-v. State, 116. Ark. 455, 174 S.W. 223
- (1915); Kansas City. S. Ry. v. ‘State, 213 Ark. 906, 214
8.W.2d 79 (1948).1 :
But principles settled in the cases arising in. Arkansas
have had impact far beyond the. borders of that state. -
Particularly during the newest round of. railroad chal- .
lenges in this decade, validation of state crew laws on
constitutional grounds has been regular © in‘ other juris-
dictions because of the 1911-66 Arkansas decisions of
this Court.
The trial*vourt opinion in New York Cen. R. R. v. Lefko-
witz, 259 N.Y.8.2d 76 (Sup.Ct. 1965), affmd., 282 N.Y.8.2d
_ 68 (App.Div. 1967), is a most persuasive analysis.’? Its
-
_ © Statutory terms such as “public crossing” and “yard” have
been defined recently-in ~~ of extant conditions of railroacling.
Chicago, R.I. & Pac. R.R. v. State, 224 Ark. 622, 275 S.W.2d
» 646 (1955); St. Louis, SF. ,Ry. v. State, 215 Ark. 714,” 223
S.W.2d 186 (1949); Kansas City S. Ry. v. State, 194 Ark, 80,
106 S.W.2d 163. (1937). I Missouri Pac. R.R. v. Moore,’ 210
Ark, 643, 197 $.W.2d 284 (4946), the Arkansas Supreme .Court
_ reversed a personal injury award because of its judgment that
the full switch crew need. not all be at thé same place at’ the
game time; the conductor was in the depot. In Cook v. Kansas
City S. Ry., 212 Ark. 253, 205 S\W.2d 441 (1947), the court
rejected a railroad argument that its tax rate should reflect un-
specified costs of compliance with the full crew laws.
-12 The’ New York full crew law trial consumed most of four
months, with 6000 pages of testimony by 110 witnesses and tens
’ of thousands of pages of exhibits; the tinanimous affirmance of
the Appellate Division is now on appeal to, the ‘New York Court
‘ of Appeals. Brief for Defendants-Intervenors-Respondents at 2,
New York Cen. ae. v. Lefkowitz, N.Y.Ct. App. o( 1968).
‘
CAO RSG PIR 1" SNES 0 NOL INL OE POOP LDMOS TOROS PR ROLE Re AEP
— ° ‘ ’ . —_—-+— .
‘
Sea ee
959 N.Y.S.2d'at 107. vty de
259 N.Y.8.2d at 104. | re f!
o Se . ‘ °- ¢, - y
4 —Be i
| ar hed ° #
” preemption conclusion: accurately. foreshadowed the 1966
result in the instant case. On commerce, equal protection
and due process clause contentions, the court examined
extensive facts on a legal framework ‘constructéd by
Supreme Court validations of the amilar Arkansas re-~
quirements. —
On commerce clause i issues, the oii retied on the three
Arkansas full crew law cases.in this Court, and their ex-
__ press reaffirmation i in Southern Pac. Co. v. Arizona, *
Insofar as the laws’ impact on foreign or interstate -
commerce is concerned, the full crew laws were- not
( unconstitutional when enacted, and the evidence does
not establish, that when applied under present con-
ditions they have ‘any gresier_or » different impact | .
on commerce than they had at that time... . |
sd
’ The court sensidered two jest wtdinitian issues: the
~Anileage classification which determines coverage, and the.
relationship between the railroad and. other transporta-
tion industries. The former, it held, was concluded by
" the prior Supreme Court decisions. 259 N.Y. 8.2d at 105.
- to the latter:
That the’ full crew laws diaile out the raflreads from
, other competing forms of transportation/ may seem
unfair, and even unwise, but there are obvious dif-
ferences between railroads and other forms of trans-
portation, both in relation to methods of operation ._
ang relations to the public, and statutes regulating
railroad operations do not deny equal protection of
the laws merely because they do not- purport to regu-
late other forms of transportation. | - i
7 , aa oe
The New York court approached the due ,process issue
as had the N orwood trial court in 1933. Compare 259
ro POGOe OEP LYOG SL ILIAD TOOL LT IO BM OIE POL AA CORE AOL LAGS EOI ew: dtiibaliintnt ates iene tui neihaistliats fe “ oh Kooy
whey alkenes ane
N.Y.S.2d at'104 with 13 F:Supp. at 37. The massive rec-
ord ‘did not establish, it concluded, that dangers at which
' the statutes were directed had lessened to the point that ~
they are unnecessary and arbitrary, or that cost of com- |
pliance is now relatively more ‘burdensome so that com-
pliance is now clearly unt asonable. | |
The Supreme Court of Yadians 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), ceri. den., 385 U.S.”
843 (1966). On the only new issue, preem;tion by Public
~ Law 88-108 of 1963, the decision had been delayed until
the Supreme Court ruled in the instant. case. “916 N. E.2d
at 720. As to due process allegations, the’ complaint. v was
. > dismissed without full trial.
In any event the alleged improvements in technology
and operating changes cannot here be used to justify
’ . a reduction in appellees work force., Such relief, if
justified, is properly found in the legislature and not:
the courts. = fim
216 N.E.2d at 72393
‘The other recent. decision on constitutional ‘aspects of.
“ crew laws was issued i in Ohio in 1967." ne C..é.Y.
v
13 Certiorari was denied: even on the limited question of per-
. mitting evidence. Motion to Affirm at 72."
14 The railroads.rely on an “unreported opinion of the circuit
court of Dane County, Wisconsin . published on September 7,
1967,” and a “District Court of Jefferson County, Nebraska, un- .
tTeported Memorandum published January 19, -1965.” Motion to
Affifm at 75, 78. Apparently they are unavailable for analysis.
~ See A. 346-47, 502-03. Even in the era of Pennsyivania R.R. v.
Driscoll, 9 A. 2d 621 (Penna. 1939) (see. Motion to Affirm at
66), results of full crew challenges were’ inconclusive.. See, e.g.,
’ San Francisco v. Market St. Ry:, 98 F.2d -628 (9th Cir. 1938).
The Wisconsin Supreme Court, consistent with -Norwood and ~
resolution of the three judge court issue in the instant case, held
,
° «a
| .
ENGI ee 2 manera ee oe ore
‘ =; , 4
= <a
R R. v. Public Utilities Comman., 224 N.E.2d 169 (Ohio Ct. °
Comm.Pl. 1967). The usual contentions of the railroads
‘were rejected on the basis of the Supreme Court decisions _
in the Arkansas cases, and the failure of the railroads to
ee burden of showing that the prevailing Su-
~ preme Court rules were inapplicable to current. practices.
As to equal protection, the legislation is valid because
it should be upheld ‘‘if any state of facts reasonably can
be conceived that would sustain dt.’? 224 N.E.2d at. 175.
As to the commerce clause, the s®@jutes were not unreason-
able when enacted, ‘‘and the evidénce does not establish —
that when applied under present condiftons, they have : any
substantial different impact on commerce.’’ 224 N.E.2d at
176. As to due process, ‘The court further concludes that
the dangers sought to be avoided when the statutes were _
enacted, have not lessened to such an extent that the mini-
mum crew requirements are now clearly unreasonable and
arbitrary.’? 224 N.Ei2d at 175.
C.
“In sum, the’long legal dispute over the Arkansas full
crew laws permits current inquiry-into two groups of facts:
(1) changes in railroad technology and practices which
affect functions of the crew required by the chaHenged
statutes, and (2) costs of compliance with the challenged
statutes in light of such effect. See Missouri Pac. R.R.
0. Norwood, supra, 13 } F.Supp. -at-25.
that an sapien that dis cirgumstances render. full crew
laws unconstitutional is sufficient for trial. Chicago & N.W. Ry.
v. LaFollette, 135 N.W.2d 269 (Wis. 1965). CAR the eutset,” the
court noted, “it should be observed that we express mo opinion as
to the merits of the [railroads’] case.” 135 N.W.2d .at-278. .
’ .
matt ene a Sn eee
p, ae a
Pd ~~
“a eee: 96 ee ay, ole :
-
Il. ‘Tue Diaresiiie HAVE F'alLep To Prove, THAT THE oe
LENGED SratuTes Have BrcomE Unweonssany 4 AND ARBI-
\ @ TRARY UNDER PRESENT Conprtions. 3
A.
Pad
| In spite of their massive and glittering presentation, the
... railroads have failed to prove that contemporary tech-—
-nology and practices have reduced the dangers at which
‘the statutes are directed to a degree that requiring a fire-.
man or three brakemen has become, unconstitutionally
- arbitrary. Tae i
Discussion. of the eviderice can be. organised by duties
of the enginecrew. (engineer and fireman), duties of the
traincrew (conductor and brakemen, or foreman, and
helpers in a switching crew), and railroad equipment and
facilities.
_ The conversion from steam powered to diesel electric
powered locomotives has been the biggest single railroad
equipment change since NV orwood. But.the change did not
render obsolete either the fireman or his duties: the fire-
man now is charged, as the fireman has always been, with
' maintenance of the motive power, lookout, relief, inspec-
tion and emergency duties. IX 144, 7-9, 11-17, 24-26, 29-33.
It has always been a primary duty of firemen to main-
tain the“ motive power; ‘‘maintaining’’ has included.
shoveling coal on a hand, fired steam engine (A. 335),
watching and adjusting steam gauges, water glasses and
fuel valves on mechanical stoker: and oil burner fired
steam locomotives (A. 335-37), and answering alarms and
| correcting malfunctions on diesel electric locomotives.
AL 992-08... ©
Specific duties of the fireman began changing long be-
fare thé advent of the diesel.. The fireman did not shovel
* coal into a firebox on the mechanical stoker or the oil
4
—8—
burner locomotives. By 1929, much Missouri Pacific mo-
tive power consisted of mechanical stoker and oil burner
. fired steam locomotives. 13°F: Supp. at 26-27. The other
‘railroads probably converted ¢arlier; Texas and Pacific
operated only oil burners by 1916 (A. 650), and the me-
chanical stoker fired steam locomotive came into use in
1905. A. 652.
At the time of N srmeed, Missouri Pacific used 1041
freight and switch steam locomotives. 13 F. Supp. at
26-27. Each was manned by an engineer and a fireman,
and the motive power on most trains. was a single loco-
motive. In those instances in which two locomotives were
used on- a single train, each was manned by an engineer
. and.fireman, or a total enginecrew of four. A. 173, 713.
In 1966, Missouri Pacific operated 684 freight, switch
and multi-purpose locomotives. PX -82, Ex. A. . Motive
_ power for a modern train may be one to ten or more
diesel engines. A. ‘713.- This multiple power complex
is manned by an enginecrew of one engineer and one
fireman. The change has resulted in vastly. more efficient
‘ use of equipment and manpower, and, in turn, vastly more -
responsibility for both enginecrew employees.*®
The responsibility has many facets. In addition to in-
structions contained in the Uniform Code of Operating
Rules, general orders, general notices, time tables and
instruction booklets, the enginecrew must abide by indi-
vidual train orders, any number of which may be issued
to regulate the movements of each train.’®¢ A. 327-30,
1036-37 ; IX 12, p. 4. 3
15 As the average engine consist is three per train (see PX. 15, .
17), if. all 684 diesel engines which Missouri Pacific owns were
operating simultaneously, only 228 enginecrews (456 employees)
_ would be needed... In contrast, the 1041- steam engines used at
| the time of Norwood required 1041 enginecrews (2082 employees).
16 The Uniform Code of Operating Rules is’ furnished to each
operating:employee and contains 132 pages of rules organized as
4 : é ; .
28
There is nothing amorphous about the evidence of actual .
exercise, by the engineer and the fireman,. of their joirit
responsibility to maintain the-motive power in operational
condition.. A. 4014-18; IX 11, ‘p. 8; IX 14, p. 2; IX 25,
p. 2. Some malfunctions can’ be located and remedied
only by the action of two men. A. 324, 555-56; IX 25,
pp. 2-3; IX 26, pp. 8-9. It takes two men to start some
engines after they have died for any reason. A. 1018;
IX 25, p. 4. Although the Missouri Pacific may instruct
firemen not ‘to. move between certain types of locomotives
while a train is in motion, it is done in practice in order
to avoid delay. A. 357. Missouri Pacific does not prohibit
‘this*activity on all locomotives, and most other railroads |
do not ban it at all. A. 547, 770, 1009, 1138; IX 32,-p. 8.
The number of stops which an engineer would make in
the absence of a fireman would multiply the chances of
‘slack action,’’ a hazard to employees at the time of Nor-
wood and admittedly still a hazard. A. 105-06, 319-22,
363-64, 565. Slack action occurs most frequently when a
train is either being stopped or started. A. 325. Since
the railroads concede that in the absence of a fireman a
train must be stopped each. time an alafm sounds to in- _
dicate malfunction. in the engine consist (A. 553), the
presence of’ firemen is an important factor in preventing
slack action ‘ingury to. ae and Lm dehie
General Rules: Operating Rules; Block Signal and Interlocking
Rules: Block Signal, Cab Signal and. Interlocking Signal Indica-
. tions; Rules.Governing Movement of Trains and Engines by Block
Signals ; and Other General Rules. - “Employes must have a
proper understanding and working knowledge of and obey all
rules and instructions in whatever form issued, applicable to or .
affecting their duties,” it points out. TX 36, p. 5. A sample: time-
table contains many. additional rules on particular runs applying
to movement of trains, priorities among different trains, yard
limits, maximum speeds at different locations, and clearances. IX
37. A third set, train orders, covers. specific trains on specific
days, instructing on special speed limits, protection deficiencies,
colors of lights and: flags to be used, and special ‘duties of given
members: of the crew. E I IX 2, Ex. A, B. See A. 639-40, 642,
1037-38. 2
i.
A most vital function of firemen continues fb be keep-
ing a lookout ahead for people, vehicles, track conditions,
signal indications, crossings and other conditions which
might affect the movement of the train. See A. 326-28,
1014-18; IX 15, p. 2; IX 32, p. 7. Visual inspection of. the
_ train to the rear reveals problems such as. dust indicating
dragging equipment, smoke indicating a hotbox or stick-
- ing brake, shifted loads, protruding freight, open or *
swinging doors, and off-center freight cars. A- — ae
1017; IX 4, p. 3; IX 15, p. 3; IX _31, p.3. at am
The fireman is the only other member of the crew who ;
is qualified by training and experience to operate the loco-
motive in the event of fatigue or disability of the engi-
neer.17 E.g., A. 1039; see A. 195. The importance of
emergency procedures for engineer disability is empha-_
sized by directions of the Presidential Railroad Commis- —
sion and Arbitration Board 282 that locomotives may not
be operated in yard. service without a fireman unless .
equipped with a ‘‘dead man’’ pedal or control. PX 19,
p. 50; PX 20, 41 Lab. Arb. at 675. Of the railroads at
17 The railroads argue that brebesnes can perform the duties
that firemen perform, but the record fails to reveal that they are
; trained .for critical ‘functions. The only locomotive braking ex- ,
perience or instruction that any of the brakeman witnesses said
they had was in the emergency application of the brakes. Further,
ompany rules about the -placement of the head brakemen, the
‘movement of firemen, and other aspects of the duties of crewmen
_ which can be changed at will cannot negate the’ reasoning for a
statutory. requirement. “Even if it be assumed that in ‘road ’freight
service .the head brakemen is in all respects as competent as the
“fireman to perform and does adequately perform the duties. as-
signed to both which are necessary in the interest of’ safety, it
may not be held that the statutory rule is unconstitutional be-
cause the railroad rule adequately protects against the same haz-
ards. Such a holding would subordinate the law-making power
of the legislature to the rule-making: power of the railroads (Cf.
Northern Pacific Ry. Co. v. Warner, 77 N.D. 721, 45 N.W.2d
196), and, as has been stated, if compliance with both the rule
and the statute involves a burdensome duplication of services, the
rule may be changed.” New York Cen. R.R. v. Lefkowitz, supra,
(259 N. ¢ 8. 2d at 98.
—30—
bar, Kansas City Southern has no such devices on freight,
switch or multi-purpose engines, Missouri Pacific has the
device or Vapor alerters on all engines, St. Louis-San
. Francisco on 254 units representing all but 59 ‘‘B’’ units,
. St. Louis Southwestern on 60 of its 157 units, and Chieago, __ i
Rock Island has 14 units so equipped. ‘Int. 37 in PX 82,
83, 84, 87, 89. | ,
The necessity for ‘omen. in switching and other yard mabe |
‘operations was described by engineers, firemen, brakemen
~ and ‘éonductors. Other than ‘the engineer, the fireman is
the only person in the cab of the locomotive while these —
operations are being performed. IX 8, p. 5; IX 14, p. 5;
IX 26, p. 2. He keeps a lookout for people and vehicles on
or near the tracks (A. 1039; IX 9, p: 3; IX 25, pp. 1-2) and-
at crossings (A. 1039, 1139, 1141-42; Ix 8, p. 4; IX 9, pp.
2-3), takes signals from crewmen on his ‘side of the train
and relays them to the engineer (A. 1017,'1089; IX 8, p. 4;
‘IX 13, p. 4), relieves the engineer in case’ of fatigue or
emergency. (A. 1039, 1060, 1143; IX 4, p. 8), operates the
emergency brake valve in case of extreme emergency (A.
1017), and leaves the engine when necessary to protect
—— or aid in switching. A. 1058. ;
- ’ The significance of firemen ‘relayingsignals i is apparent
from consideration of the length of modern freight cars.
Twenty-five average cars will extend one-fourth of a mile
and four of the newer cars are longer than a football field. ones
. See A. 116, 827. Curves, buildings, the train itself.and - |
. other obstructions make it necessary for every .available |
man to participate in switching operations. Crewmen
‘are on, behind and between cars at various times, making
it essential that train movements be made only as signaled.
1X 8, p. 4; 1X9, p. 4; IX 13, p. 4; IX 14, p-4. ;
| ‘Historically, the ranks of firemen have been the sale |
source of competent engineers. IX -15, p. 5. Many present
firemen are also qualified engineers. A. 555. On at least
“—31-—
the Missouri Pacific, if a fireman does not pass the Pro-
gressive Examination for Locomotive Firemen and Stand-
ard Examination for Locomotive Engineers, which he is.
required to take, -he is not only disqualified for promotion;
he is dismissed from employment. A. ‘B17; and see IX 38.18
Repeated assertions of the railroads that firemen per-
form no valuable function’® are debilitated by their own
documents. The current examination booklet for Mis-
souri Pacific firemen states:
It is the policy of the Missouri Pacific Lines to em-
ploy men as firemen who will in time develop such
qualifications as*are necessary to become locomotive
engineers, fully realizing that the duties of an en-
gineer are of such character that only men of the
highest intelligence, physical perfection and with a
fair education will be eligible for this class of service.
Applicants for employment as locomotive firemen
must have the equivalent of a high school education.
Preference will be shown those who, in addition to a
high school training, have some technical mechanical
training. Having these qualifications, advancement —
18 Special attention is called to these highly technical examina-
tions, which themselves effectively refute the railroad suggestion
that firemen perform little mechanical service. And see A. “555,.
1055.
18 Much of the railroad evidence consists of statéments by lower
echelon supervisors about trips they made on their lines. PX 1-14,
33-41, 75-76; IRX 1-14, 33-41, 75-76. Without exception, they
concluded that because of what they saw on those trips, safe -oper-
"ation is unrelated to the fireman and third brakeman on any trains
in the system. There is no indication that these trips were rep-
resentative of Arkansas railroading;.to the contrary, they were
‘taken under the most advantageous weather, traffic and time con-
ditions possible. See, e.g., A. 608; PX 33-41; IRX 33-41. On the
other hand, operating personnel who testified ‘for the brotherhoods
described Specific details of work performed and dangers sur-
mounted because of, specific functions of specific members of the
crew under various circumstances over extensive periods of time.
IX 1-27, = PRX 1-27, 29-35.
ORT OE OE LEIS ARP LG LOE IDG eg rey ae
—33—
will come to those who are conscientious: in the dis- |
charge of their duties and who devote a part of their
leigure time to study. aes .
In order that engine men [engineers and firemen]
may have the benefit of practical knowledge of the
construction and ‘the assembling of the different parts
of a locomotive, and as an aid to the proper care of
the locomotive, while in their charge, all engine service
employees are invited, and expected to call on. the
Master Mechanic, Road Foreman of Engines, Air —
Brake. Instructor and General Foreman for enlight-
enment on any questions that may not be understood
by them. They are invited to visit roundhouses and |
shops for thw» purpose of obtaining first hand knowl-
‘edge of how to aid in the upkeep of running repairs,
and the proper \method of making temporary repairs
‘in break-downs on the road, so that in case of dis- —
abled engines, they will possess sufficient knowledge
to be able to say just what they can, or ‘cannot do, in -
e the way of making repairs, in order to reach terminals
‘ without unnecessary delay, and with as small loss of
tonnage as is possible. | 7 —-
IX 38, pp. 2-3.
Even the General Manager for the Southern Division of
Missouri Pacific, the lead trial witness for the railroads,
asserted that one of his hypothetical ‘‘adequate -crew”’
members would be a ‘‘brakeman-fireman.’’ A. 187..
q
| ; Finally, testimony of firemen and engineers offers
eloquent support for the value of. requiring firemen on
‘ .eontemporary locomotives. .
In one of the instances the train was coming down
a mountain and around a curve to the left and there
_ was a car on the crossing with a man ih it. I informed
PRLS PR OF ALEGRE DEES St ed a ok ea ee oe ETI OE FDA, OOM LEIA OOO ET ORL INO te OD EEE GOR EE
- - . - - = " ——- —* - - * 2 Oy aie cad
_ the engineer of this-and he immediately put on the
brakes and he. was able to stop the train without
serious damage to the automobile and no injury to
the man. In the other instance, the engineer and I
_ both saw’an automobile move onto a crossing which
we were approaching. However, because of the loca-
tion of the depot, the engineer was unable to see the —
car stall on the crossing. I informed the engineer _
of the stalled car’ and he immediately applied the
brakes. We were unable to stop before hitting the
car and. almost demolishing it but the man and woman -
who were occupying the car were able to get out just -
before we collided with the car. I feel that the extra
_ time allowed them by our applying the brakes saved
their lives by enabling them to ” out of the car in ©
time.
IX 8 pp. 2.3.
In Blytheville on July 2, 1966, we ey in an clear —
of a crossing | approximately two or three feét from
the crossing and the brakémen were working approxi-
mately fifteen. or so cars back on the engineer’s side.
A lady drove an automobile up to the crossing and
did not see us until she got to the crossing on which
we were setting still. She stopped her car real sud-
denly and her car engine died with the nose of her car
setting’ across the rail on the fireman’s side. The.
engineer released the brakes indicating that he would
*be going ahead and I called his attention to stop him.
from making the move, The lead unit of the engine
consist was a GP7 and the engineer could not see the
car on the crossing from his station in the engine
- compartment. At Osceola on June 17, 1966, we had
stopped our train just in the clear of a public cross-
ing. An elderly woman with a cane started out at a ~
‘real slow rate of walk in front of us »ver the cross-
_ The — had -the dees released and just
~~ hohe 2. fu oi
LSE A ALLS NOE IE OL, IOI LDL A I EAT ene
=
.
a ee
started ahead when’ I called hig attention to the
woman and he stopped the train and avoided bitting
the elderly lady. -
- IX 25, pp. 1-2.
Many of ‘ak actions are taken in. time to avoid df:
emergency rather than acting in an emergency. How-
ever, one incident in particular does stick in my mind.
because it was an emergency situation and because
_ prompt action of the man in the fireman’s seat ,Pre-.
vented the probable death of one person and| injury
or death to another. This ‘incident occurred in Ft.
_Smith when I was the engineer on the yard switcher
No. 1065.. Fireman V. G. Bell had relieved me and
was operating the engine and~I was sitting in the
fireman’s seat performing the fireman’s duties. Fire-
man Bell was backing the ’engine. pulling five cars
when I saw sevéral women come out of the ArkHome
Frozen Food Plant in Ft. Smith and cross our track
- from that plant to a parking, lot. One of these women
stumbled and fell and hit her head on the rail and
was lying across our track. I hollered.to stop and
at the same time caught hold of the emergency brake
' valve and applied the brakes in emergency. The train
stopped about fifteen feet short of this woman lying
on the track and avoided hitting her and another
‘woman who had gone back to try to pull her off the |
track. -Because of the slight curve in the track and
the nose of the engine, ‘Fireman Bell could not see.
this lady on the track. © ,
reaped PP. 5-6. ‘wemcomadan 1153-54; PRX 11, PP. | -10-
The most evident sendiiasinils from the evidence on nm ;
- men is. that they do > substantially the same thing as they
’
~— 35 — :
; es .
did at the time’ of Norwood, when their function was liti-
gated extensively. f vit |
There continue to be varioys conditions on all railroads
which make flag protection, necessary. A. 167, 615, 864;
"IX 5, pp. 5, 10, 14; IX 10, pp. 4, 8; IX 18, p. 5; IX 21,
pp. 4-5; IX 32, p: 6. Brakemen still must participate in
‘flat switching’’ {arranging cars in proper order to be set
out. or spotted) when trains are not Rega: (cafs :
arranged in order in which they are to be se
spotted). 20 A. 172.
out or
All members of the trainerew still have the duty to -
look out for hotboxes and other defective conditions such
as open doors on cars, shifting loads, dragging equip-.
ment, sticking’ brakes amd off-center cars,’.A. 168, 178.
Switches still must be thrown manually, even when they |
are on ‘‘remote controlled”’ sidings. A. 180-81.
In the early 1930’s, station’ agents had the duty “of | An
inspecting trains as they passed their locations, A. 166.
Because of the closing of many of these stations, how-
ever, this inspection has diminished, placing a greater
responsibility on members of the operating crew. A: 166;
see PX 82, Int. 154, 155; PX 89, Int. 154; 155. Conductors -
are frequently unavailable to assist in switching opera-.
tions, as they are required to prepare delay reports (A.
168-69, 1109-11; IX 27, p. 8), wheel reports (A. 170,
1109; IX 27, p. 9), switch lists (A. 170-71, 1109; IX 27,
p. 9) and handle reports. A. 169; IX 27, p. 10. Some of .
these papers are prepared by clerical forces at terminals,
but this fact, as most others concerning the functions
of brakemen, was also true in 1931. 13 F.Supp. at 31.
The most effective rebuttal of any allegations of changed
circumstances for brakemen (or the comparable —_—"
20 Cars are usually, but not always, blocked by towns, but the
cars are not blocked in the proper sequence if there ig more than
one location for spotting in that town.. A. 171 -72. .
» : Se
> .
Mr Ae Ge . 36
——_ —
-on switching crews) was ‘given on’ cross. examination by |
a former Arkansas‘ brakeman who, having become a tep
operating official, was the ee, witness for the rail- |
roads, |
Q Mr. Sheppard, you testified, ‘I believe, that idl
your days as a brakeman on the Gurdon to. El Dorado
subdivision [1936 et seg., A. 61] that your duties were
to aid in making a ‘ out, pick up the cars, switch
cars, keep a. lookout, inspect the train, set hand
brakes and load and unload: L.O.L. freight.2* Is that
a fair statement of your testimony? A Yes, sir, it is..
_-Q Mr. Sheppard, does the brakeman still aid in ©
making set-outs and pick up of cars?. A Yes, sir.
- Q Do the brakemen still aid: in the -switching of
cars? A Yes, sir.
- Q Do the brakemen still, perform lookout duties?
‘A Yes, sir. 7
Q Do the brakemen™ ‘still inspeet the trains? © A
Yes, sir.
Q Do the brakemen ‘still set haitdbrakest A On | 7 “
occasions, yes, sir. ase
Q Don’t they set handbrakes each time pm set~
- acar out? A No, sir, not each time they set out a
"car. | .
-. Q They might kick it into another car, couple it
_into another car with. the handbrakes set? A If a
car. is set out on-a‘ level track, it is not mnqemnayen.
‘to leave it without a hand brake.’ :
'Q Nothing to tie it down? A: Yes,
‘Q Other than its own weight? A That is correct.
- . In most cases brakemen will put a piece of wood
or some object under one of the wheels if there
. is a slight grade. If there: ¥e a pretty good — .
they set hand brakes.
“.Q-Did the: brakemen | follow. this same ‘abies
.-when most. of the. cars were a with staff ‘or
"21 Less tienen car load freight,
se a hana
_stem-winder hand brakest A Practically. the same,
yes, sir...
Q Would y you: say that mnie: of the time the brake-
men chocked or -scotched ‘the wheels on those cars
rather than setting the hand brakes? A It would
be difficult to say what percentage of the time. . It
would depend upon where the work was s being per-
' * formed.
; Q Did. the loading’ and unloading of L.C.L. freight
, take place’ on a local freight train or a through
" freight train? ‘A. Primarily on local freight trains.
It has been handled on through freight trains, and,
of course, a through ‘freight - ‘train does local work,
they convert .to local pay. But ordinarily on the
regular assigned local freight ‘train.
.Q Every train would not have L.C. L. ——*
would they? A-No, sir. ‘
A. 164-65. See also A. 611-13, 635-38, 1114.
These competent. admissions seem decisive. ~
iG, : a e. e/ .
Railroad evidence on equipment and facilities is char-—
acterized by expansive descriptions of modern technology, |
Closer examination reveals that much of the progress. de-
scribed is in the planning stage, not offering widespread
current protection for Arkansas citizens and railroaders..
‘See, e.g., PX 77; IRX 77..
Most important, as to freight cars, couplers, brakes,
roadbed and trackage, and ‘crossings, substantially the
same hazards discussed by the N orwood trial court exist.
. today.
i
| Freight cars are. substantially larger with much greater
load capacities than they had at the time of the earlier
—~.
full crew cases. The average car capacity has increased
more than fifty-one percent since 1929.. A. 793. _
- Norwood referred to all cars having ‘‘solid brass wheel
_ journal . .. . improved journal wedges and improved
methods of lubrication “and packing of journals (all of”
_ which lessens: hotboxes and resulting rebrassing and
wrecks).’? 13 F.Supp. at 28. These. stabilized ‘solid bear-
ing assemblies meet current industry standards and are -
still in. use. A. 802. There may have been some further
improvement in the lubricating of these assemblies, but
the only other change is the use of roller bearings; only
about ten, percent of American railroad cars are 80
“equipped. A. 802.
_ Another alleged improvemént is the replacement of the
areh bar truck sides with one piece cast steel truck sides.
These are the-same one piece cast steel truck sides which
the Norwood court recited as being progressively installed
since 1926.-13 F. Supp. at 28. : 7
Steel wheels and improved axle designs were being
employed at the time of NV orwood, supplanting cast iron
‘wheels. 13 F.Supp. at 28. But it was not until 1968 that
an industry rule prohibiting cast iron wheels on new or
interchanged cars went into effect. A. 797-98.
The e situation obtains with “réspect to other
changes in freight car equipment asserted by the rail-
roads here. Steel - -car ends have been on new cars since
1919 and rebuilt cars since 1926, steel side doors and
more ‘secure hangers, steel roofs, and all stee}-cars or
steel underframes were on over seventy-five percent of the
cars by 1931, as: were steel steps; ladders, ladder guards
and handholders. 13 F.Supp. at 28. Even in 1967; some
ears still had wooden doors. A. 95, 178. ,
‘Improvements - in the knuckles and- drawbars of modern
trains have , been offset by the greater stress on these
connections since steayn engine days. A. 819-20.
_ sain Sh Danica tat kann a
— 39 —
. Couplers on current freight cars are the same as coup-
lers at the time of Norwood. The ‘‘E’’ type coupler was
adopted as standard by Missouri Pacific.in 1930 (13 F.
Supp. at 28), and is still is use by that railroad. A. 805.
One Missouri Pacific official testified that the coupler in
use now is the ‘“‘D’’ type, an older coupler which was
standard in 1916. A. 821; 13 F. Supp. at 28. It was men-
tioned that alloy steel high strength body and knuckles
adopted in 1962 were stronger than the ‘‘D’’ type, but
there is no assertion of superiority to the “EK” coupler
or that the newest “coupler has been placed on any sub-
stantial number of cars. See A. 805. “The “yoke” por-
tion of the coupler which is represented to be superior to
an‘earlier fabricated and riveted design is the same yoke
mentioned in Norwood as havitig supplanted the riveted
design at that time.?? A. 806; 13 F.Supp. at 28.
The principle of the air brake and neal of the air
brake equipment has not changed since. ‘1931.23 A. 809-12;
13 F.Supp. at 29-30.
- 22 A railroad witness also testified that the draft gear “has been
greatly improved and strengthened,” but specified only improve-
ment in the “cushion underframe.” A. 806-07. The cushioned un- .
derframe merely protects freight carried on a certain type of car.
-A. 821. The shock absorbing elements’ are located between the
car body and the center sill assembly, not between the coupler and
center sill; a shock, therefore, still is transmitted. to the ends of
the car. A.-807, 823. As of 1966, even Missouri Pacific kad only
3066 cars greene with the cushion underfrdme. PX 26, Ex. 1A.
Railroad witnesses contradicted each other on the chance of two
cars coupling an impact if the couplings on both cars are open.
A. 180, 820. When cars are uncoupled from a train the knuckle
. on only one is opened ; there is less chance that recoupling will be
automatic, and itigmany cases it becomes necessary for a crew
member to go between the cars and open the other knuckle man-
ually. A. 179. Cushioned underframe cars are especially difficult
to couple on curves, requiring manual adjustment of the knuckles
or drawbars. A. 180.
23 Or, perhaps, since 1911. “ See Chicago, R.I. & Pac. Ry. v.
Arkansas, supra, 219 U.S. at 458. There has been the addition
of an air reservoir tank, and new “ABD” equipment is available.
A. 810-11. But exaggeration characteristic + much railroad tes-
i
—
. As to the standard type of braking system, a major
railroad witness was asked how long it takes for reduc-
tion in brake line pipe to begin. after application of air
brakes. wae
Well, the discharge on the ordinary AB brake system
is all accomplished right at the locomotive by the —
enginemen. That air must all bleed from the brake
pipe through the valve in the cab: of the locomotive.
‘In that way it will take a considerable time. for that
brake pipe reduction to reach, we’ll say, the last car
of a seventy-five car train which causes the brakes
to apply serially, that is, the cars at the front will
apply first and then so on down through the train...
A, 823-24. The volume of air which flows through the pipe
is limited by the one and one-quarter inch brake train line
pipe, the same size used in 1931. A. 714; 13 F.Supp. at 29.
The longer the train, the longer this braking process re-
quires. Cf. A. 1182. |
‘The ideal. operation,” the Norwood court observed,
‘would be one applying a simultaneous or closely simul-
taneous and equal braking force on each car in the train.’’
13 F.Supp. at 29., This ideal was nearly reached from
. the mid-1930’s to, 1945, with the HSC, or high speed con-
trol electro-pneumatic system. See A. 685-86. This kind
of brake system is no longer used, apparently because of
its cost. A. 686; Int. 62 in PX 82, 83, 84, 87, 89.°
timony is illustrated by a sequence involving one Missouri Pacific
. official. In his original ‘statement, he declared: “Many new cars
are now equipped with the new ‘ABD’ valves and their effect in
the handling of long trains is already evident ....” A. 811. On
cross examination-he conceded (1). that “the beneficial effects of
the ABD valves are noticeable if you: have up to fifty percent
of the cars within the train with that,’ and (2) that’ Missouri
Pacific has “in thé neighborhood of fifteen hundred” cars out of
a total’ of 46,991 so. equipped. A. 825. It becomes statistically
highly unlikely that. Missouri Pacific has any present train on
which the braking action is affected by ABD valves.
— 41 —
Much other brake equipmeht described by railroad wit-
nesses here was already in use at the time of Norwood.
Other improvements in brake equipment are trussed
' metal brake beams (progressively applied since 1923)
replacing wooden beams, brake hangers and pins in-
_ creased in size. with fixed material of known strength,
improved brake rigging (on all new and rebuilt cars
since 1924), steel brake shoe heads on engine and
tender. (on all) lessens — formerly experi-
enced.
13 F.Supp.. at 30.
Of the 41,618 cars owned by Missouri Pacific in 1931,
15,555 were equipped with the booster type hand brake, |
which provided: more braking power with less manual
_ effort. .13 F.Supp. at 27, 30. Today there'are still some
ears with the non-hooster staff or stemwinder brakes
owned by the appellees. E.g., PX 89, Int..53. But there
is one crucial point as to any handbrake: it took one
crewman to operate one in 1931 and it takes one crewman ”
to. operate one in 1968.
Evidentiary patterns for roadbed and trackage are the
same. Although a heavier continuous weld: rail is the
safest type available, only 188 of the 4535 Arkansas miles
operated by the railroads in this case are so equipped.”*
In areas where heavy braking occurs and curves are ex-
mK a special heat treated rail is desirable. IRX 30,
. Missouri Pacific has about. five miles of this kind
of es no information was provided. as to the other plain-
tiffs. ERX 30, pp. 7-8. |
A notable similarity with Norwood relates to rail weight.
In 1931 the heaviest weight rail was 110 pounds, 13°
24 Missouri Pacific ‘has 66.10 out of 2329.10 total giles, St.
Louis Southwestern 71.29 out of 741.30, St. Louis-San Francisco”
50.20 out of 498.31, and Chicago, Rock Island and Kansas City
Southern have none out of respective mileages: of 812.64 and
154.006. Int. 20, 25 in PX 82, 83, 84,. ah 89.
F.Supp. at 31. Thirty-five years later, the weight of most
‘of the rail used by three of the appellee’ Arkansas rail-
roads i is still-about 110 pounds. 25
In 1931 Missouri Pacific had automatic signals on 555
miles and manual block on 162 miles of ‘its Arkansas .
system. 13 F. Supp. at 31. In 1966 Missouri Pacific had |
centralized traffic. control (CTC) signals on 563 miles. and
automatic block signals (ABS) on 254 miles of a total.
track mileage of 2329.10. PX 82, Int. 20, 69-71. Three of
the remaining appellees have substantially ‘smaller per-.
centages of automatic signal protection ; ; most Arkansas
track is. ‘‘dark railroad,’’ ungoverned. by any type of ‘auto-
matic signals.26 See A. 614. ~ ;
The same pattern appears with much of the other safety
” equipment which the railroads argue should’ replace a full
crew. Many of the same devices’ were used in 1931, and
in most instances there are important variations among
the five active appellees as to actual availability of modern
25 Only 171.5 salle of _——— Rock Island track exceeds 110
pounds, and no track exceeds 115 pounds. PX 89, Int. 21-24. As
to St. Louis-San Francisco, 304.38 miles is of 110 pound rail or .
less, and only 142.28 miles 115 pounds or more. PX 8&4, Int. 21-24.
All of St. Lotis Southwestern track is of 119 pound or. lighter
rail except for 11.73 miles. PX 83, Int. 21-24. Sperry.Rail De-
fect Detector cars also were in use in 1931. See Int. 28 in PX
82, 83, 84, 87, 89; 13 F.Supp. at 31.
26 Of 812.64 miles in Arkansas, Chicago, Rock Island has 167. 5
miles‘ of automatic block signals and 11.8.miles of centralized
‘traffic: control. PX 89, Int. 20, 69, 71. Of 741.30 miles in Arkan-
sas, St. Louis Southwestern has 4.5 miles of —_~ tic block sig- -
nals and 349 miles of centralized traffic control. 83, Int. 20;
69, 71. Of 498.31 miles in Arkansas, St. pei ae ‘Francisco
has 7.2 miles of automatic block signals and 192 miles of cen-
tralized traffic control. PX 8&4, Int. 20, 69, 71. Of 154.006 miles
in Arkansas, Kansas City Southern has 60 miles ‘of automatic
‘ block signals and 93 miles of centralizedtraffic control. PX 87, -
Int. 20, 69; 71. Without such automatic signals, opportunities for
‘human error are multiple. A. 833. CTC and ABS signal indica-
tions are still, at. times, installed on the fireman’s side of the track. . °
A. 864. |
¥
—43— -
equipment to a.degree that crewmen become affected.?7, A
relative reduction of hazards is particularly questionable
in view of the longer, heavier and faster trains in opera-
tion today. A. 482. |
. One emphasis of full crew esensiinn in the past has
been safety to the public. A.principal incident of such
relationship concerns- crossings of railroad tracks with
public thoroughfares.
As of 1966, 3190 out of 3646 public crossings in Ar-
.\ kansas had no automatic signal protection.?* The relation
of this fact to the tremendous increase in highway traffic
- again illustrates an expansion, not a contraction, of dangér:
to the Arkansas public. See DX°1. Further, delays caused
by a smaller operating crew would multiply hazards such
as the length and number of times a street crossing is
‘blocked by trains. See A. 325.
The Norwood court characterized the 5.6% of crossings
protected in 1931 as ‘‘a relative: few.”’ See PX 27, p. 25;
27 The facts supporting the foregoing discussion show great dis-
‘crepancies among the appellees as to use of. equipment ‘designed td
enhance safety. Further, St. Louis Southwestern has thirteen hot-
box detectors in Arkansas, Missouri Pacific .only three, St. Louis-
San Francisco two, and the other plaintiffs none. See Int. 101
in PX 82, 83, 84, 87, 89: A. 168. Missouri Pacific is the only
plaintiff with 2 brokén wheel flange detector or a dragging equip-
ment detector in ‘Arkansas. See‘Int. 112 and 114 in PX 82, 83,
84, 87, 89. Chicago, Rock Island, for example, is in too weak a
financial position to afford the equipment it should have. - A. 787,
791. See also IRX 29, 77; REPORT, PRESIDENTIAL RAILROAD
Commn. 56° (1962),.PX 20. Surely the people of- Arkansas are.
entitled to be protected. against the hazards of the least safe
railroad. "
28 Out of a total of 1747 public highway and street -crossings
over Missouri Pacific ‘tracks in Arkansas, 1507 have no protec-
- tion. Out of 597 for Chicago, Rock Island 534 are unprotected,
_ out of 623 for St. Louis Southwestern 539 are unprotected, out of
517 for St. Louis-San Francisco 463 are unprotected, and out of
162 for Kansas City. Southern 147 are unprotected. . Int. 80 and
87 in PX 82, 83, 84, 87; 89. Private cropeings, wenerally unpro-
tected, are not included in these totals. See, e.g. A. 868-69, 1011-14,
1105; IRX 29, p. 11. ; ine? fe
°
e
, os : “4 , . /
13 F, Supp. at 34. The 12.5% protested i in 1966 must bear , 0
. _ the -same- description.
The railroads have failed to prove that. the challenged
statutes have become. unreasonable and arbitrary under
present conditions. Relevant changes in railroad tech-
nology and practices have been minimal in kind, and not’
significant in degree when concurrent expansion of other
hazards is taken into account.?®
* IV. Tue Ramroapp nave Farep to ‘Prove THat THE ‘Cost
or CoMPLIANCE WITH THE CHALLENGED Statutes Has Bz-
COME. UNREASONABLY Burvensome. UNDER PRESENT ConpI-
TIONS. s ©. 9D
7 ; A. P
The most dramatic failure of proof in the case. against
the full crew statutes is with respect to cost of compli-
ance, a vital component of the railroad challenge under
any constitutional theory.
The railroads simply add up the pay and fringe bene-
fits of. one fireman and one brakeman for each Arkansas
operation in a selected year, and conclude:.
The evidence shows that the Arkansas statutes im-
pose an annual cost burden on the appellee railroads,
29 An\ important’ expanded hazard stems from the nature of the
_ substarices transported. The railroads concede that they “are car-
-rying more volatile and dangerous material than they did thirty
" - years ago. A. 187,. “There is a continuing and substantial ex-.
.pansion in the quantities and varieties of chemicals transported in
interstate commerce. When such shipments are. involved: in an
accident, there are increased hazards and the potential of exten-
sive loss of life and property damage.” 79 ICC Ann. Rep. (1965),
IX 44, pp. 6-7. “Since the end of World War II, the production
of industrial chemicals has increased 350 percent. ‘Last ear alone
there was a 12 percent increase in the ,consumption of commer-
cial explosives over the previous year .... The shipment of rocket
- and missile fuels is increasing each year. To add to this picture
‘ of known problems. there are about 25 new dangerous commodi-
ties developed each day.” 80 ICC Ann. Rep. (1966), IX 45, p. 6.:
The greater length of modern freight cars increases chances of
derailment. A. 826-27. ;
amas
which peer be eliminated in the sberhes of the
statutory provisions,. of approximately $7,600,000.00. -
Motion to Affirm at 62. ‘See PX 43-45, 81, 85, 86, 88;
. IRX 43, 81, 85, 86,88. >
} _ ‘The evidence shows nothing of thé kind.
To the contrary, the record. establishes te things with
respect to cost of compliance: (1) the railroads have failed
to present any facts from which general cost of com-
pliance can be estimated, and (2) from raw data acci-
dentally made available, the only arithmetic conclusion - is
that sugh cost is minimal if extant at all.
The railroads cannot claim surprise ‘eke the scope of
_ their problem:*® The warning of this Court in Norwood
was explicit: it is not enough to assert that the expendi-
ture of a flat sum of money is required for compliance.
It is not made to appear that the expense of comply-
ing’ with the state laws is now relatively more burden-
some than formerly. Greater train loading tends to
lessen operating expenses for brakemen. There is no
statement as to present efficiency of* switching crews
compared with that when the 1913 Act was passed,
| but it reasonably may be, inferred that larger cars”
and heavier loading of today make for a lower switch-
' ing expense per car or ton.
283 U.S. at 255. Although it is clear that the number of
tons per employee loaded today is much higher that, it was
at the time of earlier cases (see A. 1162), the railroads did
not present a shred of evidence to establish ‘the ratios _
delineated by Norwood. .
80 The Missouri Pacific cost of compliance statistician testified :
“There are many different approaches to determining: the answer
to the cost problem and some of them are as equally yalid as
6 and yet seem to be dissimilar in their approach.” IRX 85,
7. Cf. also Cook v. Kansas City S. Ry., 212 Ark. 253, 263,
505 S.W.2d 441, 445-46 (1947).-
a
-From what amounted to an accidental disclosure by
one railroad statistician, however, some specific idea of .
the cost of compliance is available from the record. The
compelling result of. the process is that such cost is miui-
mal at most. . ,
~The simplest deficleney in the railroad presentation,
recognized by the court below, is that it failed to take
into account most’ offsets that would increase costs fol-~
lowing the elimination of members of the crew. As 488,
1204. The gravity of this omission is established for at
least one of the appellees. See A. 487-98, 1184-87; PX
86; ERX: 86.. ;
Officials of the Kansas City Southern included in their
pre-trial testimony some detailed and validated working
figures.used during cost of compliance calculations. PX |
- 86; IRX 86. It thus became, possible to determine rela- oe
tive changes in per mile enginecrew and traincrew costs
in Arkansas under the full crew laws, as compared with
other states where crews have been reduced substantially
in the last four years. See A. 244-45.
As to ‘freight enginemen, the percentage cost ie Ar-
kansas compared with the system as a whole actually de-
clined between 1962 and 1965, the period spanning the
arbitration award which eliminated most firemen outside
of Arkansas. A. 1186 (24.7%, 23.6%, 24.1%, 23.0%). As
to freight trainmen, the same result obtained. A. 1187
oo 1%, 22.0%,- 22.2%, 21.6%). m
" ‘Lest the above figures be dismissed as possibly we
some change in total mileage, the-per mile expenditure
is also available. Most significantly, in the 1962-65 period,
the ratio of Arkansas to the Kansas City Southern system
as a whole went dowf as to enginemen (1.119, 1.066,
"1.118, 1.080) and rose only slightly as to trainmen (1.000, -
992, 1.029, 1.014), A. 1186. The decline in both cate-
— 47 —
gories between 1964-and 1965 merits special attention
because of the graduated effects of the May, lain arbi-
‘ tration award. See A. 244-45.
These figures, the only ones in the record besides “ngger-
- tions’’ interdicted by Norwood, compel the conclusion that
_ cost of compliance is minimal, if measurable at all.}.
_ ‘This startling, conclusion does invite further inquiry;
there is evidence in the record to indicate what some of
the offsets might be.
First, even the railroads, in wutetadeus exercise of man-
agement discretion, at times would use crews larger than
the four men which their cost of compliance figures con-
template. See, ¢.g., A: 188; PX 31, pp. 16-17.. ‘“Thé varia-
tion i managerial judgment reflected in these estimates
demonstrates differences in opinion concerning the mini-
_ mum crew consist required for safe and efficient operations,
even under similar operating conditions.’’ PX 19, Rzrorr,
PreswentiaL Rarroap Commn. 57 (1962)?
A second cost element for trains without a full crew is
direct and obvious: engineers who operate without firemen
are paid a special compensatory: allowance: A. 507-08.
Further, Arbitration Board 282 provided for extensive
costs in connection with employment separations resulting
from its award, PX 20, 41 Lab. Arb. at 676-77, 679-80.
There are more permanent offsetting, costs; their mag-
‘nitude is indicated by the Kansas City Southern figures.
A. 489-91.3% Virtually all witnesses agree that a smaller
. 81 Suggestions by railroad counsel that the brotherhoods should
have obtained similar figures for other appellees (A. 540-42)-r
ring
hollow. Cf. Goldblatt v. Hempstead, 369 U. S. 590, 595-96 (1962).
82 For even the short slow trains running on stall lines un-
covered by the full crew laws, five and ‘six man crews are not
unusual. PX 47, 48, 49, ‘58, 60,. 65, 66.
88 Counsel for the railroads summarized the factors as “the in-
creasing accidents and the overtime and “the additional switching
én route, the terminal delay, the effect of the conversion rule, and
ta al wrE scteindndia mest,
CMOS
~
. . iJ
:@
oe
—48—
_
crew increases operating time for a given train.8¢ Slower
operation means decreased efticiency and increased cost
‘per unit generally; it means. increased .overtime pay,
‘‘ progressive’? and ‘‘constructive’’ allowances for members
of the smaller crew specifically, See A.. 489-91. The
evidence shows ‘that accidents also would increase, result-
ing in repair and replacement cost’ for equipment and.
tracks, damage to, freight, the cost of clearing wrecks |
_-and higher i insurance premiums ‘and personal injury judg- -
‘ments. See. A. 129-30, 488- 89; ;\1166-70.
cna ‘The probative deficieney deciniates the challenge at bar.
A of
V. Tur CHALLENGED | STATUTES ARE REASONABLY RELATED TO
Srare INTERESTS IN THE OPERATION OF ARKANSAS RaILRoAbs. ’
*The pubued ovendh. more , than ‘the. absence of: changed
conditions. suffieient for reversal of traditional full crew °
validation, Affirmatively,~preponderant evidence on rail-
“roading - and safety supports the retention of full crew
laws by. ArKansas lawmakers. , ds
‘he instant‘ case offers more opportunity to compare
‘safety: experience with and without: full crews than per-
_. haps any jpast* litigation: The proceeds of such” experience
"are significant — for ‘the — inepeiajine: judg-
_ment.
Four: national statistical. neesinen were esthiblished®*
~ beyond serious challenge: (1) ‘railroading continues to |
a multitude of other factors. .. 2 A. 538. See also A. 966. The
railroads did offset.for the firemen allowed for ‘ten percent of the
_Tuns by, Arbitration Award "282. Bg., PX. 85, Ex. A: :
"84 See discusston at point V(B), infra.
“NBs Tactically, although the railroad, statistician testified iret, tof
“the plaintiffs, he conceded that his presentation was to a large. de-
gree'defensive, in anticipation | of proof from the brotherhoods in ~
these,areas. See A.. 246, ‘280-81. One of the. key railroad exhibits
- was withheld, for example until.the nature of the, cross examina-
| _tion — appatent. A. 304, 1005-07. 3
* . ° »* B
carte ‘: ee a « ' ve.
- . - ” » -* > ,
%
ees
or oar
- be a hazardous business; (2) railroad. accidents have in-
creased ‘substantially since May, 1964, (3) operating crews
have been reduced substantially since May, 1964, and (4).
an outstanding increase in railroad accidents sinee May
1964, has been in that particwlyr type of accident which
| usually involves inadequate performance by the —
crew.*6
The railroad response, senentittiy, is that railroad acci-
‘dents are not increasing as seriously as alleged if:
measured in terms of gross ton miles, if casualties only
are examined, and if- changes in ‘reporting factors are
considered. Further, the railroads. argue, the accident
rate had been increasing prior to May, 1964.
I n reply, the brotherhoods point ‘ont: that gross ton miles °
is an improper exposure factor for measuring human
casualties or even train accidents; even an absolute casu-—
alty decline has little significance in view of drastically
reduced operating crews, nonoperating employees, and
36 Observing that “statistical evidence seldom is” satisfactory,”
the court. below lightly dismisses the evidence of concurrent rising
accidents and dimninishinig crews as without: proven causal relation- -
ship. A. 1202. This judgment; in particular, seems compell-
ingly . legislative. The railrodds also point-to a report of repre-
sentatives of the railroads and the Brotherhood of Locomotive
Engineers which relies on a 1965 assertion by an ICC official that
the Commission had investigated no accident in which it found
that ‘the absence of a fireman was a contributing or proximate
cause. PX 79, p, 64. This report covered onl twenty-three ac-
cidents, and was followed by this exchange: “SENATOR CANNON.
Then actually it would seem to me that from the very limited inves-
tigating that has been accomplished during this period of time
and the fact that you have had a tremendous number of accidents,
‘including a very rapidly growing rate, that statement that you
“previously. submitted to the committee . . . is not too meaningful -
‘in view of the limited number, would you say?: Mr. BusH {Act-" |
ing Chairman, ICC]. That’s right. And I--think there again
too we have to distinguish between the words ‘investigate’ and ‘in-
spect’ and ‘review.’” Hearings on the’ Administration of . Public
Law 88-108 (Railroad Work Rules Dispute), 89th Cong., ie Sess.
. 302, (1965) ; IX eis p. 14. ‘See A. 944-48.
PA SOO Re Ty Vl
a ETL aR NI SNE SATIRE LHF TaN RAR AO SCE i RNG a
oe 50 — 4
passengers. Finally, the rate of accidents generally, and
the rate of particular accidents related to crew, consist, —
have accelerated more sharply since May, 1964, than in -
prior years. aati. ee
‘*Railroading,’’ the court below observed, ‘‘is an in- |
herently dangerous business whether it is carried on in
- Arkansas, Missouri, New. York or California.’’ AS 1198-99.
See Missouri Pac. R.R. v. Norwood, supra, 13 F.Supp. at
35. oo ey |
The contemporary increase in hazards of tailroading is
established by government records. The ICC reported
‘‘an alarming 12.9 percent increase in fatalities for 1964,’’
‘a sharp rise in violations of the various railroad safety
laws,’’ ‘‘a substantial increase in the number of locomotives
found in unsafe condition,’’ a ‘‘growing menace of high-
“way-grade crossing accidents,’? and increased hazards
through new materials being transported. 79 ICC Ann.
Rep. (1965), IX 44, pp. 4-7. ‘‘The alarming upward trend”’
in the number, of accidents and violations of safety laws
continued unabated during. the following year. 80 ICC ,
Ann. Rep. (1966), EX 45, pp. 3-6.37 |
hod
Materials made available since the close of trial indi-
cate that the railroad safety problem is becoming even
more serious.?® . : | aa
_ 87 The surprising current danger from deteriorating railroad
equipment is detailed in A. 1163-65; IX 46, 47 and 48°
38 See, e.g., REPORT, SECTS. OF RAILROAD SAFETY AND LocoMo-
TIVE INSPECTION, BUREAU OF RAILROAD SAFETY AND SERVICE,
ICC 2-10 (1967). Railroad safety matters -have been transferred
to the jurisdiction of the Department of Transportation; a short
time ago its National Transportation Safety Board released a rec-
ommendation which began: “The National Transportation Safety
Board’s review of data covering the last several years for train
accidents shows ‘progressively worsefiing trends in rates, occur-
rences, deaths, and damage. Furthermore, and especially disturb-
ing, many train accidents in recent years have involved hazardous
.“ or poisonous materials, resulting in fires, or the escape of poisonous
4
alla ad Ueland Pon eet bo tow nay ei .
: ee
Comparison of relevant spans of time refutes any rail-
road contention that it is capable of handling its safety
problems without state regulation. See, e.g., PX 75, p. 8.
Dieselization has not reduced accidents, when periods with
the same traffic density are compared. IX 49. There has
been .a dramatic increase in the percentage of defective
freight cars in the last decade as compared with the decade
following Norwood. A. 1163. About seven percent of the
safety appliances on freight cars inspected during fiscal
1965 was found defective. A. 1164. For railroads operat-
‘ing in Arkansas, the percentage of locomotives found
defective is significantly higher now than it was in the
immediately post-Norwood period, and such bese are .
imereasing. A. 1165.%® °
The railroads hee great difficulty explaining the in-
creased hazards. E.g., A. 244-46. Their statistical evi-
_ dence, generally, was designed to minimize the increase
arid to refute-any causal relationship between that. in-
crease and the concurrent national decrease in size of
‘or hazardous materials followed ty evacuation of populated areas,
The latter collateral factors, coupled with a rising accident ‘rate,
’ increase the probability of catastrophic occurrences.” Natl. Transp.
Safety Bd., Release No. 382-7273 (April 10, 1968). See also 114. -
Com. Rec. $3987 (daily ed. April 10, 1968). A comprehensive
railroad safety bill was introduced in Congress by the administra-
tion on May 2,.1968, aimed at the “snowballing”: accident rate.
St. Louis Globe. Democrat, May 23, 1968, at 2C, col. 1. - -
39 Trains run about fifty percept faster than they did when
Norwood was decided. ‘A. 1182. There have been comparable per-
centage increases in their’ length and weight. A. 1182. In the same
time span, the number of ‘motor vehicles in Arkansas has_in-
creased. by about four hundred percent. A: 1183; DX 1. Many
“measures of population’ and property reveal increased exposure
to railroad risk. For example, in the state school bus program,
_ initiated after Norwood in 1931, 3534 buses now transport 207,013
' students over twenty-four million miles. .DX 4. In the words
of the mayor of one medium sized Arkansas city: “In’ summary,
there are presently more railroad grade crossings, more vehicles,
more schools, more children, more people, and more public high-
ways than there has been at any time during the past, and I ex-
pect the metropolitan area to continue to develop ane increase in
size and population.” DX 7, p. 6.
Ae REEL IO hy ep re
2 - . . - 8 ee tet OPES poern ouy
ie me ve 0c:tesico pecarmnomnress Brew y : “4 er Ie
* . . ' Stawagt re <ptatne 2 sihiatllllaisiaaiai aa navarewcnt to elers Lives a,
» Natl na a . Z :
: ° F ; ‘
a .
¢
operating crews. A. 246.4° But the record contains con-
vineing evidence that such causal relationship exists.
' Experts for bot: sides agree that collisions are a par-
ticular -type of accident which relates most ..to perform-
ance, inadequate performance, or: non-performance of the
operating crew. A. 281-82, 1166-70. The correlation - be-
tween the increase in rate of collisions and the reduction
of the crew as a result of Arbitration Award 282 is com-
pelling. oy : ig eae
Causes as well as kinds of train accidents most related to
crews size also increased substantially following the May, —
1964, award. A. 1175-76. Correlation is further indicated
' by the fact that as train accidents in all other states rose
34.3% from the 1961-63 average to 1965, the correspond-
40 Characteristic of this response is a ey of railroad
. casualties in terms of billion gross ton miles. E.g., 982. Ob-
viously gross ton miles per operating employee or ehine exposed
person has been increasing sharply. A. 255, 481, 1162.. Employee
hours, on the other hand, is the “standard unit ‘of [casualty] ex- -
posure” for the Bureau of Labor Statistics (A. 256-57), the Na-
tional Safety Council (A. 258), the Interstate Commerce Commis-
sion (A. 255-56), and the railroads themselves in other contexts.
A. 268-69. Even with the use of ./distorted exposure factors,
however, the railroad statistical presentation conceded that: (1)
comparing 1962 and 1966, railroads with more firemen had a .
smaller increase in collision rate (A. 282); (2). over the longest
reported interval, full crew states’ had. er accident and cas-
ualty rate experience than non full) crew) states (A. 283-85); (3):
Arkansas train accidents are increasing at a slower rate than -
those of states with smaller operating crews, (A. 286); (4) dur-
ing periods of , the same traffic density, casualty rates for diesel
operation were no less than for steam operation (A. 291-93);
and (5) comparing pre-1964 with post-1964 experience, Arkansas
had a smaller. percentage. of national casualties in the later era
when its crew size was proportionately larger. A. 296.
41 A, 450-51. May, 1964,. marked the inception of a dramatic
tise in collisions. A. 1168-69; IX 5k, 52, 53. For example, the
1961-63 monthly collision average was 81; 109 was the average
for the last eight months of 1964, 115 for the twelve months of
_ 1965, and 114 for the first four months of 1966. The totals for
May and June, 1966, the last months for which — are avail-
able, _ ta 136 and 137. A. 1168. ©
—s
a, 9
ing incréase in Arkansas was only 14.3%. A. 1180. Cas-.
ualties from rail-highway grade crossing accidents in
Arkansas actually decreased in recent years, in contrast
to a national increase. A. 1181.
The: judgment of Arkansas einai in "retaining full
_erew laws should be sustained on the simple | temporal
juxtaposition of increased accidents and reduced crews in
other jurisdictions. But further, the basically undisputed
evidence that particular types and causes of hazards re-
lated to smaller crews have increased significantly during: -
that time make ‘such policy decision not only constitu-
tional, but also wise. a a
SA anes ‘-
A particular genesis of “hazard, responsive to. the size
of the operating crew and identifiable at bar, has not been
examined in previous full crew law decisions: the prob-
lem of speed. %
There are two thienhe of ce that run through all
testimony on the actual operation of a railroad: speed is
important for the economic position of the enterprise, and .
‘a smaller operating crew necessitates a longer operating
time. The practical tension between these considerations
- itself creates a hazard which bea unica is entitled to /.
regulate,
“Anything that slows or stops a train,’’ declared the
major railroad. witness, ‘‘is an important factor in mak-
ing a schedule.’’ A. 128. The pressure of economic compe-
tition with other forms of transportation ‘‘requires fast
schedules, non-stop trains, shorter trains’’ and other forms ~
of expedition: A. 126-27... °
While a delay of 5 minutes due to failure of a ak
motive may not’ seem much, we have kept track of
delays of 5 minutes or more for many years and héve—
. followed them up —_— to determine the exact
ber
‘= | i
/ cause, alineteie fa the fat Ghd take action to pre-_
vent sugh delays in the future. ;
A. 696-97. } )
That is the place where competition is exerted—pro-.
viding ‘better service. It is’ very important to zt the |
train made up fast, to get the train over the road fast,
to have it broken up ‘and the cars delivered ,
/
/
consignee as fast as possible.
A. 446. See also A. 951.
* No wfnces for any party disputed ‘the poiation that .
smaller crews take more time to operate a given train.
E Gi A. 109, 183-84, 188, 368-69, 604, 645, 752, 877, 1030,
1065,66, 1080, 1087, 1125, 1146. We Jearn from railroad
witnesses, for example, that if a locomotive malfunction
occurs without -a fireman in the cab, ‘the engineer must
stop the train to identify the difficulty. A. 553, 567-68.. It
takes one brakeman longer to perform necessary inspec-
tion duties than two. A. 109. Fewer men may be able to
perform certain switching, but deans take more time. IRX
6, p. 14.
The coexistence of these two factors: the need for speed
and the delays necessitated by smaller crews is an invi-
. tation to accidents. The railroads: ‘have “eliminated every
‘delay possible,” urging crews to perform their tasks as
rapidly as they can. A. 183-84. See A. 172. A smaller
crew has “to hurry or ‘do some guesswork due to not hav-
ing enough men.” A. 339. Highway crossings tend to be r
blocked more freq batly. and for longer intervals. Em-
-ployee “negligence” of the type ‘which has increased sig-
nificantly pinge : crews were reduced in 1964 stems from i
“pressure / which /comes aoe that competitive position of ¢
the industry.” ” AK. 446-47.
The problem i is undeniable. The railroads respond: Om
more’ help is required of course we can always add to
crew Whatever men are needed, depending ‘on the- work
the '
t
Wie nNad 3a aa 5, ees
hoe ae
—e— \
-to be done.” PX 31, pp. 16-17, But the state is entitled
to decide that it need not rely‘on railroad discretion any
more ‘than it relies on the prudence of motorists to keep
a safe speed on the highways. The chief operating officer
of one of the appellees does not even know if his railroad
had an increase or a decrease in accidents in the past
five years. A. 890. See also A. 919-20. Further, the
“‘alarming’’ increase in. violation of safety laws by the
railroads in recent years justifies reluctance to-let these
enterprises determine what is safe for. the people of the
state. See, ¢.9., A. 1163-65.
VI. ANALYSIS OF THE Cuatignonp STATUTES UNDER ANY
OrHEeR CoNSTITUTIONAL CHARACTERIZATION aLso CoMPELS
JupiciaL VALIDATION.
”
The court below held that the statutes make ‘no signifi-
- eant contribution to railroad safety,.. . are unreasonable
and oppressive, and that they violate the Due Process _
- Clause and unconstitutionally burden interstate commerce.’’
A. 1205.. (Emphasis added.) ‘Probative value of material
evidence should not be affected by this purported- double
_ ground for invalidity, for two reasons.
First, there was no apparent effort by the railroads to
2 show that any burden on interstate commerce is different
now from what it was at the time of the prior Arkansas
full crew law cases or the 1945 commerce clause decision in
Southern Pacific Co. v. Arizona. .Record reference to
slowing down at state lines to pick up crew members, for
example, was without any historical comparison. E.g., A.
- 123-24. Such. specific differences are requisite to inde-.
pendent commerce clause reversal of previous validations.
Second, the ‘court below discusses two elements with
“‘specific regard- to the contention . . . that | the statutes
unduly burden interstate commeree.”? A. 1205. The fi-
:
cx.
nancial burden of compliance, it found, was out of pro- |
portion to the benefit, if any, and the ‘‘added burden
involved in the taking on and discharging men at or
near the Arkansas State line.’’ A. 1205-06. Further, it
was held, the challenged statutes interfere with the fi- |
nancial. ability of the railroads to compete acai other
forms of transportation. .
The Arkansas statutes in our view militate against
that necessary efficiency and flexibility; they ham-
string the carriers in the important field of labor
- relations, and impose upon them requirements not
generally imposed throughout the ‘country and not
imposed i in any of the States bordering Arkansas.
A. 1206. In-this sense, also, the court concluded that the
| statutes constitute an unconstitutional burden on com-
merce.
’ This oe is subject to the infirmities in due
process arguments discussed supra. But more, it exempli-
fies the real meaning of the opinion of the court below:
full crew laws are. economically unwise. Such conclusion
is not for the judiciary, nor’is it a basis for a constitu- |
tional determination of any kind. |
The Memorandum Opinion appears to be a legislative
policy determinatién based upon predisposition.4* At odds
with the careful.Norwood District Court analysis is the
most direct comment ‘by’ the court below about the evi-
dence: ,
The record before us is extremely voluminous. It
‘includes oral testimony, sworn: statements, deposi-
tions, - statistical _ material, documentary evidence,
42 The author of the Memorandum Opinion, while suggesting
lines of inquiry to railroad counsel during cross examination of
the expert witness for the brotherhoods on complicated statistical
material, stated of that testimony: .,- as I understood it the
_ major portion of his _ if I may ‘call it that... .” A. 535,
(Emphasis added.) .
: a :
copies of various public documents, photographs and Je
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 in is surplusage, is to be evaluated
iv) properly, it is necessary for us to define clearly the
controlling issue before us. s
A. 1198, (Emphasis added.) -
. A suspicion of what the record wiaibit is inadequate
at best. When it is followed with definitions of the con-
trolling issue in terms such as ‘“‘hamstringing the carriers
| in the important field of labor relations’? (A. 1206), the
i. West ‘‘arduousness’’ of the Arkansas statute (A. 1195), future
- traffic on the. Arkansas river (A. 1206), and ‘‘tieing the
* hands’’ of the parties in collective bargaining (A. 1207),
it is plainly erroneous.
B. oc a
The Supreme Court full crew ‘decisions in 1911, 1916,.
1931‘ and 1933 accurately presaged the dominant, attitude |
towards state economic regulation years later. For the
‘past thirty years, the Court has adhered to a constitu-
tional principle originally appearing in Munn v. Illinois,
94 U.S. 113, 134 (1876): ‘‘For protection. against abuses
by legislatures the people must résort ‘to the polls, not |
to the courts.’’ Williamson v. Lee Optical, 348 U.S. 483, |
-488 (1955). >
‘‘Eiven if the wisdom of the policy. be vennedel as de--
batable and its effects uncertain, still the legislature is _
_ © entitled to its judgment.’’ West Coast Hotel Co. v. Par-
* rish, 300 U.S. 379, 399 (1937). ‘‘{W]here the legislative —
. judgment is drawn in question, [constittitional inquiries] _
must be restricted to the issue whether any state of facts
either known or which could reasonably be assumed af-
fords support for it.”” United States v. Carolene Products
Co., 304 U.S. 144, 154 (1938). — |
4
= et A eC
4 f ; ~~ | canal UCT RAES OR OCS GORI TO A AIOE
The ‘safety of the public, the safety of railroaders, and
even employment conditions on the railroads are e clearly
of legitimate state concern.
The judgment of the legislature . .-. may be a debat-
able one. It is indeed conceded: by the opposition to. - |
be such. But if our recent cases mean anything, they
leave debatable i issues as respects business, economic,
_and social affairs to legislative decision. We could
strike down this law only if we returned to .the
_ philosophy of the Lochner, Coppage, and Adkins cases.
Day-Brite Lighting, Inc. v.. Missouri, 342 U.S. 421, 425
(1952). See also Olsen v. Nebraska, 313 U.S. 236 (1941);
. Lincoln Federal Labor Union v. Northwestern Iron Co.,
335 U.S. 525 (1949); Ferguson v. Skrupa,-372 U.S. 726
(1963); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384
U.S. 35 (1966). Heatherington, State Economic Regulation
and Substantive Due Process of Law, 53 Nw. L. Rev. 13
i, Note, 40.Micu. L. Rev. 743 (1942).43
The court below rejected out of hand the argument that
since the full crew laws amount to business regulation for
which there is reasonable support, established limits on
judicial evaluation of legislative judgments apply.
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 ¢
_ 43 The facts that the: chaflenged - statutes were passed many
years ago or have been repealed in some other states should not
remove them from the protection of the abstention doctrine. Mr.
Justice Frankfurter,“concurring in AFL v. American Sash Co.,
335 U. S. 538, 553: (1949), noted: “Most laws dealing with eco-
‘nomic: and social problems are matters of trial and error...
[and] even if a law is found wanting on trial, it is better that its
defects ‘should be demonstrated and removed than that the law
should be aborted by judicial fiat.” (Emphasis added.) The rail-
roads: cannot resist em from analogy in legislative rep of
“unjust” full crew laws. al, 950, 993. ee
. .
. ° °
. - '
, , . ’
— 59 =- ane
° \° - i id +
\
unnecessary to decide whether the statutes are sus-
tainable on some other basis.
A. 1192-93.
Rigid dcmmapeition between .‘‘economic”’ wd “safety”?
legislation is belied by the court’s own subsequent discus-
sion, in which it seems highly concerned with the competi-
NG _ tive position and labor relations problems of the. railroads.
Most considerations involved are not exclusively ‘related
“a, to either safety or economics. Time pressures, for exam-
.,..ple, have effects on employee health, business competition,
“blocking public crossings, and accident rates—a ae -
of legitimate legislative interests.
_ But even if, arguendo, Arkansas full crew regulittine
were enacted originally for safety and ‘now are retained
_ to affect quality and quantity of railroad employment, no
_ constitutional infirmity is indicated. o”
A state legislature, in the enactment of laws, has ‘the
widest possible latitude within the limits of the Con-
stitution. In the nature of the case it cannet record a
complete catalogue of the consideratioris which move
its’ members ‘to enact laws.
Carmichael v. Southern Coal Co., 301 U.S. 495, 510 (1936).
2 [T]he continuation of seventeenth century Janguage
does not of itself. prove the continuation of the pur-
. . poses for which the . . -. governments enacted these
laws, or that these are the purposes: ‘for which their
successors of the twentieth have retained them and
modified them.
McGowan v. Maryland, 366 U.S. 420, 497-98 (1961) (Frank- :
-, furter, J., concurring).** See also" East New York Savings —
44 Sunday “blue laws” were deneaaiii originally from religious
considerations, but, erosion of this support did not necessarily re-
sult in their invalidation. They survive on a general relationship
to governmental protection of the “health, safety, recreation and
_ general well-being of our citizens . . . part and parcel of this
» ° great governmental concern wholly. apart — their original pur-
l}
°Co. v. — States, 323 U. S. 18, 22-24 (1944).
¢
. = 60—
ess -- |
Bank v. Hahn, 326 U.S. 230,.235 (1945); Carolene Products .
| Le | % ; C. .
The railroads announce a plan to argue again that the.
Arkansas full crew laws have classification. infirmities, in-
_ voking equal protection and discrimination against inter-
state commerce theories.*® Motion to Affirm at 33, i
“Aside from. the fact that ‘such an argument’ was ap- :
parently rejected in the prior cases upholding the con-
stitutionality of the Arkansas statutes’? (Brotherhood of
Locomotive Engineers v. Lhicago, RI. & Pac. R.R., supra,
_ 382 U.S. at 437, there is ample record sescvish for the
classifications involved.
There are eleven tutniibets railroads which ‘operate in
Arkansas; because of the inileage classifications, only eight
are covered by the full switch crew atatute and ten by the |
full freight crew statute. PX 67, Ex. A. There are seven-
-. teen intrastate railroads in Asineanes state records indi-
cate that two lave sufficiént total mileage to be covered
by the full freight crew statute. PX 67, Ex. B. But see.
PX 47, 48. The correlation between mileage and inten -
state commerce does not on its face indicate hostile dis-
: crimination.
-
There are many obvious factual differences to justify
distinction between covered and non-covered railroads. -
poses or cofinotations. ¥ 366 U.S. at 444-45. aap also Two Guy s
From Harrison-Allentowrf Inc. v. McGinley, 366 U:S. 582 (1961) :
Braunfield v. Brown, 366,U.S. 599 (1961).
45 The court below found it unnecessary to reach these conten- .
tions. A. 1198.
46 The switching over the same ‘crossings argument was. dealt
with in detail in St. Louis, I.M. & S., Ry. v. Arkanggs, supra, 240
U.S: at 521. The mileage classification principle noted: with
—< as recently as said Morey v. Doud, 354 U. ae 465
8 (1957). Benes s
"%
—61—
a Sigiias ag
There is a greater need for more crew members for longer
trains (e.g., A. 188); record data establishes the greater
train length for railroads covered. by the statutes than
those uncovered.* 47
Speed. is. also an 1 important consideration to safety; in
the only mention of speed for the uncovered enterprises _
which the railroads adduced, the top: limit is thirty-five
“tiles per, hour (PX 49), a considerable contrast to - the
‘seventy rhile per — plus sje: of the specine, See
A. 892; 899. ee
The” raitvade ‘sides to argu st of compliance. If
it is a substantial factor, it is relative cost, and the reve-
nues of uncovered in relation: to covered -railroads again
_, furnish a basis for the classification. See PX 67, Ex. A, B.
_ Finally, the nature of the business of the appellees is sub-
~stantially different frem that of railroads with 2, 4, 6—or
49—miles of total track. See, e.g., PX 52, Ex.1,5.° ~
The other classification argument of ‘the railroads com-
pared the industry generally with other forms of trans-
portation. The treatment of this contention in. the New
' - York full crew case leaves little supplement desired. New
. York Cen. R. R. v. Lefkowitz, supra, 259 ms! YS. 2d at 104. a8 ¥
+
AT For example, Missouri Pacific averages ‘ae: twenty-thite Z
_freight cars for ‘each locomotive, Arkansas Western R. Co., the
smallest interstate railroad (not covered by the statutes), about ten
cars per locomotive, and Augusta Railroad: Co., the smallest intra-
state railroad (not covered 7 the statute), two cars an Iecomo- .
tive. PX 67, Ex. A, cols. 6, 8 , Ex. B, cols. 3, 4.
48 It should be noted that the Interstate Commerce Commission
has limited jurisdiction over railroad safety, a basis for spe-
cial state attention to the field. “The Commission’s responsibili-
_ ties in the area of railroad ‘safety are limited to the administration
- of. several laws which cover. only specific aspects of saf
‘Hearings. on the Administration of Public Law 88-108 (Railroad
° agg Rules Dispute), 89th Cong:, Ist Sess. 291 (1965), IX 67,
‘p. 3. Cf. eg.,.46 U.S.C.. § 223 (water) ; 49 U.S.C. § 304 (high-
ways); 49 U.S.C. § 1421 (air). :
" RA ee —— os
CON CLUSION
3 The brotherhoods and the State of ‘Arkesas respectfully :
ask the Court: to reverse the judgment of the District —
Court, to order dismissal of the complaint, and to award 4°
the appellants their costs and other appropriate relief. :
. = “fT yhe clash of fact and opinion should be resolved by -
the democratic process and not by the judicial sword.’’.
“International Bro. ‘of Teamsters v. Honke, 339 U.S. 470,
478 (1950).
Respectfully submitted, .
James E. Younapan.
Wo. Rosert D. Ross’ : oo
: ys 711 ‘West Third Street
Little Rock, Arkansas 72201 ,
——— for the Appellants (950 adi
Jor Purcenn :
- Arrorngy GENERAL OF ARKANSAS *
Leste Evirrs |
eo CHIEF AssIsTANT ArroRNEY GENERAL
or ARKANSAS
Justice Building
Little Rock, Arkansas 7 2201.
; ; Attorneys for the Appellants. (97a)
- Of, Counsel: o oa “*
Joun P. Sizemore “ae es |
ees MocMarz, LEATHERMAN, Woons & YouneDAHL
Pore, Pratt, SHaMBURGER, Burrato & Ross. |
Little’ — Arkansas | | eae
7”
— <t.
Sets, ae one : : -eatge ag nant tgs aie PRET TS let th hts ? GEE LESIONS ORE LET NE AIS SLE ERR ORCS
— - < s-—-+
‘- 7 —68—:
APPENDIX A © mn -
. a a 7
- "(The Congress shall have power). . . To regulate Com- * |
. merce with foreign Nations, and athong the several States,
| and with the Indian Tribes. ; |
a
US. Conse, art. VI,§2 °
This Constitution, and the’ Laws of the United States ”
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the ‘Authority of the
United States, shall be the supreme Law of ‘the Land; and —
‘the Judges in every State shall be‘ ‘bound -thaveby, any
- hing in the Constitution or Laws of any State’ to the:
— notwithstanding. .
U.S. Const. amend. XIV Ȥ1- |
All persons born or naturalized in the United States, .
and subject to the jurisdiction. thereof, are citizens of the ~
United States and of the State wherein théy reside. : No
State shall make or enforce any law which shall abridge
the privileges or immiunities of citizens of the.United =
States; nor shall any State deprive any person of life,
liberty, or property, without due process. of law; nor
deny to any person within its — the — Pro-
saneced of the laws.
a :
°
| APPENDIX B
o ad gr AN | “or
Ark. Srar. Ann. §§ 73-720 through 722 (Repl. 1957)
Par | (Arkansas Act 116 of 1907) -
\ 73-720. Crew "required on freight trains. No: railroad
company or officers of court owning or operating any line. ~~ “a
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
. @n engifieer, 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 eémpany or officer. of court |
whose line or lines-are less than fifty (50) miles in length,
- nor to any railroad i 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) cars, it being the
purpose of this Act to require all railroads in this State
‘whose line or lines are over fifty (50) miles in length en-
gaged in hauling a freight train consisting of twenty- five
(25) cars or more, to equip the same with a crew consist-
ing of not less than an engineer, fireman, a conductor and |
three (3) brakemen, but nothing in this Act shalt be ‘con-
strued so as to prevent any railroad company or officer of
court from adding to or increasing its crew beyond the
: ~ number set out in this Act:
73-722, Penalty for violations—Ezceptions. 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-
legally run shall constitute a separate offense. Provided,
the penalties of this Act shall not apply during strikes of
men in train service of lines involved.
%
i ————— <
_-<“railroad epmpany or corporation, owning or
'. yards or terminals in the cities: within this State, where
Ang. Srar. Axk. $$ 73-726 through 729. (Repl. 1957).
i (Arkansas Act 67 of 1913) a
* 73-796. Switch grews in cities—Requisite members. No
Noceting any
ae
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—N umber in crew may bé im-
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 prevent any railroad company
or corporation from adding to or increasing their switch-
crew or crews beyond the number set out i in this Act.
73-728. Application of act to cities of first and second
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 com- |
‘pany 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 seca operated shall
constitute a separate offense.
a
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