CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO. v. Hardin

• Decision Date: 03 October 1967
• Docket Number: Civ. No. H.S. 944.
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, the Kansas City Southern Railway Company, Missouri Pacific Railroad Company, St. Louis-San Francisco Railway Company, St. Louis Southwestern Railway Company, and the Texas and Pacific Railway Company, Plaintiffs, v. Robert N. HARDIN, Prosecuting Attorney for the Seventh Judicial Circuit of Arkansas, and W. F. Denman, Jr., Prosecuting Attorney, for the Eighth Judicial Circuit of Arkansas, Defendants, and Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen, Brotherhood of Railroad Trainmen, Order of Railway Conductors and Brakemen, and Switchmen's Union of North America, Intervenors.
• Court: U.S. District Court — Western District of Arkansas

274 F. Supp. 294

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, the Kansas City Southern Railway Company, Missouri Pacific Railroad Company, St. Louis-San Francisco Railway Company, St. Louis Southwestern Railway Company, and the Texas and Pacific Railway Company, Plaintiffs, v. Robert N. HARDIN, Prosecuting Attorney for the Seventh Judicial Circuit of Arkansas, and W. F. Denman, Jr., Prosecuting Attorney, for the Eighth Judicial Circuit of Arkansas, Defendants, and Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen, Brotherhood of Railroad Trainmen, Order of Railway Conductors and Brakemen, and Switchmen's Union of North America, Intervenors.

Civ. No. H.S. 944.

United States District Court W. D. Arkansas, Hot Springs Division.

October 3, 1967.

COPYRIGHT MATERIAL OMITTED

Robert V. Light, Little Rock, Ark., Martin M. Lucente, Chicago, Ill., for plaintiffs.

Joe Purcell, Atty. Gen., State of Arkansas and Jack Lessenberry, Little Rock, Ark., for defendants.

John P. Sizemore, Robert D. Ross, Little Rock, Ark., for intervenors.

Before VAN OOSTERHOUT, Circuit Judge, and MILLER and HENLEY, District Judges.

HENLEY, District Judge.

Memorandum Opinion

By this suit in equity interstate rail carriers operating in and through Arkansas challenge once again the constitutional validity of two Arkansas statutes prescribing minimum crew consists for freight trains in road and yard service. The two statutes are Act 116 of 1907, Ark.Stats., Ann., § 73-720 et seq. and Act 67 of 1913, Ark.Stats., Ann., § 73-726 et seq. Plaintiffs seek a declaration that the statutes are violative of the Due Process and Equal Protection Clauses of the 14th Amendment to the Constitution of the United States and of the Commerce Clause itself, U. S. Constitution, Art. I, section 8, Clause 3, and they seek an injunction against continued enforcement of the statutes. The defendants are two Arkansas Prosecuting Attorneys; five railroad Brotherhoods representing certain classifications of railroad employees have been permitted to intervene and to align themselves with the defendants. The case has been heard by a District Court of three judges, and this opinion incorporates the Court's findings of fact and conclusions of law.

The suit, filed in April 1964, seems to have been inspired by developments in the railroad industry in the last thirty or so years and by the fact that in 1963, to avert a threatened national strike of railroad workers, Congress adopted the Joint Resolution of August 28, 1963, P.L. 88-108, 77 Stat. 129, which provided in substance that the serious dispute between the rail carriers and the Brotherhoods about crew consists should be resolved by arbitration with the award to be binding for a period of not more than two years. Pursuant to that Resolution there was created Arbitration Board No. 282 made up of representatives of railroad management, the Brotherhoods, and the public. In November 1963 that Board made a basic award to go into effect in 1964 and to expire in November 1965; that award permitted the carriers to make substantial reductions in consists of crews both in road and yard service.

In their original complaint plaintiffs alleged, in addition to their constitutional contentions, that the passage of P.L. 88-108 and the award of Arbitration Board No. 282 amounted to a federal preemption of the field of crew consists.

In the fall of 1964 plaintiffs filed a motion for summary judgment based in part on the pre-emption contention. A majority of this Court sustained the motion on that ground without reaching the constitutional questions posed by the complaint. Chicago, R. I. & P. R. Co. v. Hardin, W.D.Ark., 239 F.Supp. 1.

Defendants and intervenors appealed to the Supreme Court of the United States, and the judgment of this Court was stayed about three weeks after it was entered. The Supreme Court reversed our decision and remanded the case for consideration of the constitutional questions on the merits. Brotherhood of Railroad Locomotive Engineers v. Chicago, R. I. & P. R. Co. (Hardin v. Chicago, R. I. & P. R. Co.), 382 U.S. 423, 86 S.Ct. 594, 15 L.Ed.2d 501.

Act 116 provides in substance that all freight trains in road service operated on railroads fifty miles or more in length and consisting of twenty-five cars or more must be manned by a crew consisting of not less than one engineer, one fireman, one conductor, and three brakemen. Act 67 provides that railroads one hundred miles or more in length conducting switching operations over public crossings in first and second class cities in Arkansas must utilize crews consisting of not less than one engineer, one fireman, one foreman, and three helpers. Substantial pecuniary penalties are prescribed for violations of the respective statutes.

When those statutes were passed, all locomotives were powered by steam. In those days engineers, conductors, foremen, and firemen were indispensable crew members in road and switching operations. Hence, the practical effect of the statutes was to require the affected railroads to employ an "extra brakeman" and an "extra helper", depending upon the nature of the operation.

Over a period beginning in 1907 and ending in 1933 different rail carriers on three occasions attacked the validity of the statutes without success. Claims that the enactments violated the 14th Amendment, the Commerce Clause, the Interstate Commmerce Act, and the Railway Labor Act were successively rejected. Chicago, Rock Island & P. R. Co. v. State, 86 Ark. 412, 111 S.W. 456, aff'd 219 U.S. 453; St. Louis, I. M. & S. R. Co. v. State, 114 Ark. 486, 170 S.W. 580, aff'd 240 U.S. 518, 36 S.Ct. 443, 60 L.Ed. 776; Missouri Pacific R. Co. v. Norwood, W.D. Ark., 42 F.2d 765, aff'd but with leave to amend complaint, 283 U.S. 249, 51 S.Ct. 458, 75 L.Ed. 1010, 283 U.S. 809, 51 S.Ct. 652, 75 L.Ed. 1428, decided on merits, 13 F.Supp. 24, aff'd per curiam, 290 U.S. 600, 54 S.Ct. 227, 78 L.Ed. 527.

In that series of cases the statutes were authoritatively characterized as safety measures and were upheld as such. While the Courts recognized that the relationship and significance to safety of operations of fixed crew consists were questionable, the Courts on the records before them were not able to say that the statutory requirements were not reasonable and permissible police regulations.

In the Norwood case in particular the plaintiff carrier contended that changes in railroad equipment and operations in the years which had followed the adoption of the statutes had been such as to deprive them of their validity, and that they should be declared unconstitutional on the basis of changed conditions. In its decision on the merits, 13 F.Supp. 24, the District Court recognized that there had been many material changes in the railroad industry, and it discussed them in great detail. However, the Court was not persuaded that the changes had been so great or significant as to render unconstitutional the continued enforcement of the statutes. And in its affirming per curiam opinion the Supreme Court "saw no reason to disagree with the determinations of fact reached by the District Court." 290 U.S. 600, 54 S.Ct. 227.

In the instant case plaintiffs now contend that changes in the industry which have taken place since Norwood have rendered the statutes obsolete and irrelevant as far as railroad safety is concerned, and that if they did not do so before, the statutes now amount to violations of the Due Process and Equal Protection Clauses, and that they discriminate against interstate commerce and are an unconstitutional burden of that commerce.

Countering those contentions the defendants and intervenors, while admitting that there have been changes and improvements relevant to safety of operations, deny that those changes have been as far reaching and significant as plaintiffs contend, and deny that the improvements have been universally and uniformly adopted by the carriers; they also contend that railroad operations today present hazards that did not exist when Norwood and the other earlier cases were decided; and they challenge the cost figures of the carriers. They say that even after giving full weight to the changes and improvements the question of the reasonableness of the statutes as safety measures still remains fairly debatable and that this Court should not substitute its judgment for the judgment of the Arkansas Legislature.¹

Alternatively, defendants and intervenors contend that even if the statutes have lost their significance as safety measures, they are still sustainable as "economic legislation," and they cite in that connection a line of cases beginning with West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, and apparently ending with Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336. We dispose of this alternative contention at this point by observing that the statutes have been characterized as safety measures and nothing else. We accept the characterization of the earlier decisions and find it unnecessary to decide whether the statutes are sustainable on some other basis.²

As has been seen, the Arkansas statutes have been upheld by the Supreme Court of the United States, with the Norwood litigation being terminated finally in 1933. In view of the judicial history of the statutes, it is necessary for us to determine what issues are open to us here and to what extent our inquiries are foreclosed by the earlier adjudications. The plaintiffs say that all issues are open for consideration in the light of changed conditions. Defendants and intervenors say that all issues are foreclosed, except the contention based on the Due Process Clause.

In connection with their appeal from our order granting summary judgment in the case, defendants and intervenors argued in the Supreme Court that the constitutional issues tendered by plaintiffs are insubstantial. That Court...