State Ex Rel. Conway v. Southern Pacific Co.

When the opinion in this case was handed down on December 23, 1943, I was unable, because of illness, to give my reasons for dissenting. I now do so

The validity of the Arizona Train Limit Law Section 69-119, Arizona Code 1939, as applied to interstate transportation of persons and property is the question for decision. Such law undertakes to penalize any railroad in the State of Arizona that runs over its lines, or any part thereof, any train consisting of more than 70 freight, or other cars, exclusive of caboose, or any passenger train of more than 14 cars.

The act is silent as to its purpose. If it was enacted to protect the safety, health and well-being of railroad employees, or the traveling public, it does not so recite, as in theWilliamson case, 36 F. Supp. 607, cited in the majority opinion.

The law's observance until now by the interstate railroads operating in Arizona, as the evidence and findings conclusively show, has not only cost such utilities large sums of money but, also, has delayed and interfered with their business of transportation of goods and persons, at both the east and west boundaries of the state, without any material benefit to the traveling public, in the way of safety or health, or of the employees unless it be that more of them thereby have secured employment, increasing the operating expenses of the roads.

One sure result of a compliance with the law has been to force interstate companies to operate many more trains in the conduct of their business than the safety and well-being of the employees would seem to require, greatly increasing their costs.

Under the law, a fruit or cattle train made up in California for the Kansas City or Chicago markets, if it consists of more than 70 cars, must, when or before it reaches Yuma, Arizona, be broken down to the limit of 70 cars before it proceeds through Arizona. When this same train has crossed Arizona it may be rebuilt to the California length and proceed on its course to the point of destination. The traffic from the east to California must also conform to this arbitrary rule at the state's boundary. In effect, the law limits length of trains from California and New Mexico to and through Arizona and practically outside of the state.

The regulation of the length of interstate trains, if permissible, is by reason of the state's right under the Constitution to pass laws for the protection of its people's lives, safety, health and well-being and to do that the state may enter the field appropriated under the Federal Constitution to the federal government, when such field has not been wholly occupied by that government. Powers belonging under the Constitution to the federal government but not exercised may in all proper cases be exercised by the state for its use and protection, and a state law to that end will be valid and enforceable.

The Train Limit Law, if an allowable state regulation originally, is no longer allowable for the following reasons:

1. The danger to life and health in the operation of long trains, because of the improvement in the operating services as shown by the evidence and findings, has been greatly minimized, if not wholly done away with.

2. That because of such improvement, if the Train Limit Law was ever a valid police regulation, it now, under the evidence, serves but one purpose, to wit, the employment of more employees and trains, with the expense and hazards incident thereto.

3. It invades the field of regulation occupied by the Congress in its legislation providing for safety appliances in railroad operations (Virginian R. Co. v. United States, 4 Cir., 1915,223 Fed. 748) and the safety provisions of the Interstate Commerce Act.

4. In Ex Parte No. 156, November 8, 1943, the Interstate Commerce Commission refused to modify its Service Order No. 85, theretofore entered, suspending during the war the operation of state laws limiting the number of cars in trains, stating, among other things:

"If state laws limiting the number of cars in trains are to be held valid (a question we do not decide), it would be possible for each state to set a different number of cars as the maximum to be hauled in a train. A state might even limit the length of trains to one car, although such a law would be clearly arbitrary and unreasonable. Higher limits might be set by states and found reasonable, but lack of uniformity would place a serious burden on interstate commerce. . . .

"The fact that freight trains in excess of 70 cars and passenger trains in excess of 14 cars are safely operated in states without train-limit laws ``is convincing evidence of its safety, except where unusual operating conditions exist.' . . .

"We find that these state laws were and are in fact rules and regulations with respect to car service within the meaning of section 1, paragraph (10) and (15); that Service Order No. 85 was and is in accord with the national transportation policy . . . and is fully authorized by section 1 . . . of the Interstate Commerce Act [49 U.S.C.A. § 1]."

The Interstate Commerce Commission refused to modify or change said Service Order No. 85 for the reasons (a) that it was a valid order made pursuant to act of Congress and (b) because as a matter of fact "freight trains in excess of 70 cars and passenger trains in excess of 14 cars are safely operated in states without train-limit laws," which "``is convincing evidence of its safety, except where unusual operating conditions exist.'" This finding of fact by the Commerce Commission is fully and well supported by the evidence taken in this case and is in accord with the learned trial court's findings.

Four states, Arizona, Nevada, Louisiana and Oklahoma, have enacted train limit laws. The laws in the first three named states have been passed upon and declared to be invalid (Atchison, T. S.F.R. Co. v. La Prade, D.C., 2 F. Supp. 855;Southern Pac. Co. v. Mashburn, D.C., 18 F. Supp. 393;Texas New Orleans R. Co. v. Martin et al., D.C., 1936, No. 428-Equity) (unreported), in Oklahoma it was sustained by a divided court. Missouri-Kansas-Texas R. Co. v. Williamson,D.C., 36 F. Supp. 607. The rulings of these courts is another very cogent reason why the Train Limit Law should not be sustained. These decisions were by three-judge federal courts and were unanimous in holding the law invalid, except in the state of Oklahoma. In other words, of the 12 judges presiding in these cases 10 joined in declaring the law invalid and two (in the Oklahoma case) sustained the law.

I think the judgment of the lower court should be affirmed.