Chi. & N. W. Ry. Co. v. R.R. Comm'n of Wis.

• Decision Date: 17 November 1925
• Citation: 188 Wis. 232,205 N.W. 932
• Parties: CHICAGO & N. W. RY. CO. v. RAILROAD COMMISSION OF WISCONSIN. CHICAGO, M. & ST. P. RY. CO. v. RAILROAD COMMISSION OF WISCONSIN. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. v. RAILROAD COMMISSION OF WISCONSIN.
• Court: Wisconsin Supreme Court

188 Wis. 232

205 N.W. 932

CHICAGO & N. W. RY. CO.

v.RAILROAD COMMISSION OF WISCONSIN.

CHICAGO, M. & ST. P. RY. CO.

v.RAILROAD COMMISSION OF WISCONSIN.

MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

v.RAILROAD COMMISSION OF WISCONSIN.

Supreme Court of Wisconsin.

Nov. 17, 1925.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Separate actions by the Chicago & Northwestern Railway Company, by the Chicago, Milwaukee & St. Paul Railway Company, and by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, to review an order of the Railroad Commission requiring railroad companies, operating within the state, to equip their locomotives with cab curtains as specified in such order. From a judgment of the circuit court affirming the order, plaintiffs appeal. Judgment affirmed.R. N. Van Doren and Nye F. Morehouse, both of Chicago, Ill., and J. F. Baker, of Milwaukee, for appellant Chicago & N. W. Ry. Co.

H. H. Field, of Chicago, Ill., and Sanborn, Blake & Aberg, of Madison, for appellant Chicago, M. & St. P. Ry. Co.

Hayes, Sawyer & Sondel, of Milwaukee (John B. Sanborn, of Madison, and Henry S. Mitchell, of Minneapolis, Minn., of counsel), for appellant Minneapolis, St. P. & S. S. M. Ry. Co.

H. L. Ekern, Atty. Gen., and Robert M. Rieser, Sp. Counsel, of Madison, for respondent.

OWEN, J.

These actions were brought by the respective appellants to review an order of the Railroad Commission requiring railroad companies operating in the state of Wisconsin to equip their locomotives with cab curtains as specified in said order. The order of the Railroad Commission was affirmed by the judgment of the circuit court, and, according to stipulation approved by this court, one bill of exceptions entitled in all three cases was settled and returned to this court to be taken and considered as the bill of exceptions in each of said three cases. The cases were argued together, and will be disposed of in one opinion.

The order of the Railroad Commission was made pursuant to chapter 139, Laws 1923. That law prohibits any railroad company from using, between the 15th day of November and the 1st day of April in each year, any locomotive engine not equipped with approved cab curtains. It provides that--

“Such curtains shall be so constructed as to efficiently inclose the openings between the engine cab and the water tank or coal tender attached to such locomotive engine. The windows of the cab shall be properly and closely fitted and all openings for levers or pipes and all other openings whatsoever through which cold or drafts may bring discomfort to the occupants, shall be efficiently protected in such manner as may be required and according to plans approved by the Railroad Commission of Wisconsin.”

The law required all railroad companies to submit plans for such equipment to the Railroad Commission for approval not later than September 1, 1923. The law also provides that--

“It shall be the duty of the Railroad Commission of Wisconsin to enforce the provisions of this act.”

In obedience to these provisions, the various railroads of the state of Wisconsin submitted to the Railroad Commission plans for this equipment. The commission, having concluded that an efficient enforcement and administration of the law required the promulgation of a general order rather than the specific approval of individual plans and specifications submitted by the railroad companies, held hearings throughout the state upon due notice to the railroad companies and interested parties, and on October 31, 1923, issued its order prescribing minimum specifications for cab curtains which should be regarded as a compliance with said law. The order divided the state into two districts; all that district lying north of the Green Bay & Western Railroad system being called the Northern district, and that portion of the state lying south of the said system being called the Southern district. Different specifications were prescribed for each district. Different specifications were also prescribed for switch engines and locomotives used in the transportation service. Each of the appellants brought actions to review this order in the circuit court for Dane county, attacking the reasonableness and validity of the order and challenging the jurisdiction of the commission to make the same.

The trial of these actions commenced May 8, 1924, and at the conclusion of the evidence, on motion of the commission, the record was returned to it for such modification of its order of October 31, 1923, as it might find proper, in accordance with the provisions of section 195--32, Stats. The commission amended its order, and, under date of July 19, 1924, said amended order was submitted to the court, with a return of a copy of the evidence previously taken by the court. This amended order was then considered and passed upon by the court in lieu of the first order, as required by said section 195--32. The court held that order invalid, because it provided for a curtain or covering over the tank or tender. The court held that chapter 139, Laws 1923, did not require any curtain or covering over the tank or tender, and that that part of the order of the Railroad Commission was beyond the powers which the statutes had conferred upon the commission. Accordingly, it entered judgment declaring the whole order void. On the same day, and without any further notice or hearing, the Railroad Commission promulgated the order which these actions are brought to review. The order is identical with the order declared invalid by the court in the first action, except that the requirement contained in the former order for a tank or tender covering is omitted, and includes only so much of the former order as the court held valid in the former actions.

[1][2][3] The principal contentions made by appellants are that the order imposes an undue burden upon interstate commerce, and that its requirements conflict with federal legislation and rules of the Interstate Commerce Commission, promulgated under congressional authority. Manifestly, chapter 139, Laws 1923, was enacted for the purpose of promoting the public health and comfort. As such, it is a police regulation and undoubtedly within the powers of the state; but the legislation touches an instrumentality of interstate commerce, the regulation of which, so far as exercised, is entirely within the power of the federal government. But for the fact that the legislation affects an instrumentality of interstate commerce, the power of the state could not be questioned. If, however, the legislation, though having for its purpose the promotion of the public health of the state, comes in conflict with legislation enacted by Congress, pursuant to its power to regulate interstate commerce, so that the two cannot stand together, then the state legislation must give way to the federal legislation. These principles are so well established by the Supreme Court of the United States that statements thereof are mere legal banalities. It is conceded by appellants that the legislation is valid unless it conflicts with legislation enacted by Congress. It is conceded by the Attorney General that the legislation is invalid if it does conflict with federal legislation. The burden therefore rests upon the appellants to point out federal legislation with which chapter 139, Laws 1923, and the order of the Railroad Commission made in pursuance thereof, come in conflict.

Appellants meet this burden by referring to the so-called Locomotive Boiler Inspection Act of February 17, 1911 (36 Stats. at L. 913 [U. S. Comp. Statutes, §§ 8630-8639]), and its amendments thereto, and also the so-called Safety Appliance Act, enacted March 2, 1903 (32 Stats. at L. p. 943 [[U. S. Comp. St. §§ 8613-8615]) and the amendments to that act. The Boiler Inspection Act of February 17, 1911, is entitled:

“An act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto.”

It prohibits the use of any locomotive engine in interstate commerce unless the boiler of said locomotive and appurtenances thereof are in proper condition and “safe” to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without “unnecessary peril to life or limb,” and all boilers shall be inspected from time to time in accordance with the provisions of the act, and be able to withstand such test or tests as may be prescribed in the rules and regulations therein provided for. The act also provides for a chief and two assistant boiler inspectors, and charges them with the duty and authority of enforcing the act. It requires each carrier to file its rules and instructions for the inspection of locomotive boilers with the chief inspector, and, after hearing and approval by the Interstate Commerce Commission, such rules and instructions, with such modifications as the Commission requires, shall become obligatory upon such carrier. This act was amended March 4, 1915 (U. S. Comp. St. §§ 8639a-8639d), so as to confer upon the boiler inspectors the same powers and duties with respect to all parts and appurtenances of the locomotive and tender that they then had with respect to the boiler of a locomotive and the appurtenances thereof, and provides that the said Act of February 17, 1911, shall apply to and include the entire locomotive and tender and all their parts “with the same force and effect as it now applies to locomotive boilers and their appurtenances.”

The contention is made that by this act Congress has assumed exclusive jurisdiction and dominion over locomotives used in interstate commerce, and it is apparent that this is so to the extent that it is necessary to promote the safety of the public and of the employés. This act is a safety act, pure and simple. It is entitled, “An act to...