Missouri Pac. R. Co. v. Norwood

• Decision Date: 31 December 1935
• Docket Number: No. 501.,501.
• Parties: MISSOURI PAC. R. CO. v. NORWOOD, Atty. Gen. of Arkansas, et al.
• Court: U.S. District Court — Western District of Arkansas

13 F. Supp. 24

MISSOURI PAC. R. CO. v. NORWOOD, Atty. Gen. of Arkansas, et al.

No. 501.

District Court, W. D. Arkansas.

Edward J. White, of St. Louis, Mo., and Thomas B. Pryor, of Ft. Smith, Ark., for plaintiff.

Hal L. Norwood, Atty. Gen., of Arkansas, Charles W. McKay, of Magnolia, and Chester Holland, Pros. Attys., of Ft. Smith, Ark., Frank L. Mulholland, Sp. Counsel, of Toledo, Ohio, and W. D. Jackson, Sp. Counsel, of Little Rock, Ark., for defendants.

Before STONE, Circuit Judge, and OTIS and MARTINEAU, District Judges.

PER CURIAM.

In 1907, Arkansas enacted a "full crew" law (affecting freight trains) requiring three brakemen on trains of 25 or more cars (Ark. Laws 1907, Act No. 116 page 295) and, in 1913, a "full crew" law requiring 3 switch "helpers" in all cities of the first and second class where switching movements were made across public crossings within the city limits (Ark. Laws 1913, Act No. 67 page 211). The validity of these laws was promptly questioned. The contest and controversy was over the third brakeman and the third switch helper; the railways contending these third men were unnecessary. The brakeman law was first upheld in Chicago, R. I. & P. Ry. Co. v. State of Arkansas, 86 Ark. 412, 111 S.W. 456, which was affirmed by the Supreme Court in 219 U.S. 453, 31 S.Ct. 275, 55 L. Ed. 290. The switchman law was first upheld in St. Louis, I. M. & S. Ry. Co. v. State of Arkansas, 114 Ark. 486, 170 S.W. 580, affirmed in 240 U.S. 518, 36 S.Ct. 443, 60 L.Ed. 776. Some years after these decisions, this plaintiff filed its petition attacking the validity of both laws. The earlier attacks were (as to federal grounds) based upon violation of the Interstate Commerce provisions of the Constitution (article 1, § 8) and the Fourteenth Amendment. The bases of this plaintiff's action covered the grounds in the two earlier suits, and also that Congress had, prior and since those decisions, occupied the field covered by these two laws. As to the Fourteenth Amendment, plaintiff alleged such a change in conditions affecting the application of the two laws as to render them then invalid. Before a statutory court of three judges, plaintiff applied for a temporary injunction, and defendants moved to dismiss the complaint as insufficient. That court sustained the motion and dismissed the complaint for failing to show any ground for relief. (D.C.) 42 F.(2d) 765. On appeal, that decree was affirmed. 283 U.S. 249, 51 S.Ct. 458, 75 L.Ed. 1010. In that opinion, Mr. Justice Butler (for the court) said that the complaint contained "much by way of argument, assertions as to questions of law together with inferences and conclusions of the pleader as to matters of fact" (283 U. S. 249, page 254, 51 S.Ct. 458, 461, 75 L. Ed. 1010); that such were not deemed admitted by the motion to dismiss (283 U.S. 249, page 254, 51 S.Ct. 458, 461, 75 L.Ed. 1010); and that "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. 249, page 255, 51 S.Ct. 458, 461, 75 L. Ed. 1010). Also, the court said (283 U.S. 249, page 255, 51 S.Ct. 458, 461, 75 L.Ed. 1010): "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 specified number of brakemen and helpers in freight train and switching crews. It is not made to appear that the expense of complying with the state laws is now relatively more burdensome than formerly."

Based upon these and related expressions in the opinion, plaintiff filed its motion to modify the mandate so as to permit filing of an amended petition. The mandate was modified to an affirmance "without prejudice to any application to the District Court to amend the pleadings or otherwise." 283 U.S. 809, 51 S.Ct. 652, 75 L. Ed. 1428. Under this modification, plaintiff was allowed to file an amended petition (further amended since in some respects). A motion to dismiss was denied; the application for a temporary injunction was denied "on the ground of a balance of convenience in favor of defendants"; defendants answered and a special master was appointed to take testimony. Conceiving it contrary to the spirit and purposes of the act (Jud. Code, § 266, amended, U.S.C.A. title 28, § 380) creating the statutory court to permit a master to make findings of fact or to state conclusions of law, which under ordinary equity practice would have certain force, the court expressly denied the master such functions and confined his powers and duties to taking and reporting the testimony and to filing "an index and a summary or abstract" of the evidence "as an aid to the Court in ready examination of the evidence." Under this authority, the master has returned over 1900 pages of testimony and about 100 paper exhibits. This entire record has been read as well as copious briefs.

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 interstate commerce, and as violating the Fourteenth Amendment. We deem all of these issues settled by the above three decisions of the Supreme Court, except one. That issue arises under the Fourteenth Amendment.

The Rock Island (219 U.S. 453, 31 S. Ct. 275, 55 L.Ed. 290) and the Iron Mountain (240 U.S. 518, 36 S.Ct. 443, 60 L.Ed. 776) cases determined that these laws were valid as applied to the conditions presented at the time these cases were tried. We must presume the actual conditions then existing were revealed in those cases. The Missouri Pacific Case (283 U.S. 249, 51 S. Ct. 458, 75 L.Ed. 1010) was decided upon the face of a complaint held imperfect, in part because of method of statement; such being argument, legal assertions, and inferences and conclusions of fact rather than direct allegation of facts. While that opinion contains valuable statements as to what plaintiff had alleged (283 U.S. pages 255, 256, 51 S.Ct. 461, 462) or failed to allege (283 U.S. pages 254, 255, 51 S.Ct. 461), it was not intended as a determination of the validity of these laws under the conditions at the time that case was determined in the lower court. However, that opinion (283 U.S. page 255, 51 S.Ct. 461) clearly suggested the issue which plaintiff would have to meet to overthrow the laws because of the Fourteenth Amendment. Broadly, this issue was whether there had been such a change in the situations to which the laws applied as to render their application to the new conditions clearly arbitrary and unreasonable. More particularly (and having in mind the contentions of plaintiff as shown by its then petition), the court stated there was 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," or that the expense of complying with the laws was "relatively more burdensome than formerly." With these expressions in mind, this court confined the evidence (in the order appointing the master) to two lines of inquiry: "First, to changes in conditions alleged in the amended petition 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; second, to show that the expense of complying with these statutes is now relatively so much more burdensome as to render compliance therewith at this time unreasonable."

Concisely, the issue is whether conditions in operation affecting these freight train and switching activities and/or expense of compliance with the laws have so changed since these statutes became law as to render application of them now clearly unreasonable and arbitrary, although such was not so under conditions existing when they were enacted. The "conditions" and the changes therein are to be considered as to their effect upon the safety of employees and of the public. The "expense" is to be considered as "an element properly to be taken into account in determining whether such laws are arbitrary." Missouri Pac. R. Co. v. Norwood, 283 U.S. 249, 255, 51 S. Ct. 458, 461, 75 L.Ed. 1010.

We are dealing with operating conditions of freight trains (both on the road and in the yards) and the changes on the road which have come about therein within the 25 years since the brakeman law was enacted in 1907, and changes in the city yards during the 19 years since the switchman law was enacted in 1913. To give a picture of these changes, counsel have properly found it necessary to introduce much evidence and upon many different details. It has been no light task to study the bulk, and even more difficult to assemble from various witnesses and to state the results of the evidence in this somewhat complicated situation with its mass of detail. Probably this can be aided by having in mind what the parties contend this evidence proves.

Plaintiff regards the evidence as showing that there have been such improvements in roadbed, equipment, safety training and devices, and operating conditions 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...