# Brief for the Appellant — Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0036%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Appellant - **Published:** January 1, 1969 - **Citation:** 393 U.S. 129 ## Text ‘SUPREME COURT.0. 8 oe /b )8 . MAY 29 1969 Nos. gs and@uy” 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 « 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 = 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 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” —