Penn Cent. Co. v. Department of Public Utilities

• Decision Date: 04 December 1969
• Citation: 356 Mass. 478,253 N.E.2d 339
• Parties: PENN CENTRAL COMPANY et al., 1 v. DEPARTMENT OF PUBLIC UTILITIES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 339

253 N.E.2d 339

356 Mass. 478

PENN CENTRAL COMPANY et al., ¹ v. DEPARTMENT OF PUBLIC UTILITIES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1969.

Decided Dec. 4, 1969.

Richard J. Ferriter, Boston, for Penn Cent. Co. (Chester A. Prior, Boston, for Boston & Maine Corporation with him).

Walter H. Mayo, III, Asst. Atty. Gen., for the Department of Public Utilities.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

CUTTER, Justice.

The railroads seek review under G.L. c. 25, § 5, as amended, of an order (May 15, 1968) of the department (the D.P.U.) requiring certain tools and emergency lighting to be provided on railroad passenger cars operating in Massachusetts. In the county court the case was reserved and reported without decision by a single justice.

The D.P.U. in 1967, as a consequence of certain serious accidents involving self-propelled Budd cars on the Boston and Maine Railroad, ordered hearings concerning proposed safety regulations (see D.P.U. 15,418, 15,449, 15,577). Before the D.P.U. the railroads ² filed motions to dismiss the proceedings for want of jurisdiction on the grounds that the proposed rules would be in violation of art. 1, § 8 (the Commerce Clause), of the Constitution of the United States and that, by virtue of 45 U.S.C. §§ 1--46 (1964), jurisdiction to prescribe regulations with respect to the matters covered in the proposed D.P.U. rules had been pree mpted and assigned to the Interstate Commerce Commission. ³ The D.P.U. denied the motions. Thereafter, the D.P.U. received evidence. On May 15, 1968, the D.P.U. issued an order (see D.P.U. 15,577) prescribing regulations, the pertinent portions of which are set out in the margin. ⁴

1. The D.P.U. has broad power to prescribe safety regulations. G.L. c. 159, § 16. See also c. 160, § 163, as amended by St.1967, c. 701. Cf. St.1967, c. 853. The railroads contend, however, without attacking any Massachusetts statute, that D.P.U. 15,577, is not permissible, as a regulation in the field of railroad safety appliances, in the light of congressional enactments and regulations thereunder. They do not specify the particular Federal statutory sections with which they contend D.P.U. 15,577 is in conflict. In this court the railroads seem to rely generally upon the Boiler Inspection Act of 1911, 36 Stat. 913, now found in 45 U.S.C. §§ 22--34 (1964). Before the D.P.U. it was argued by one or more of the railroads that the field of railroad safety had been pree mpted by 45 U.S.C. §§ 1--46 (1964), containing Federal legislation on the subject of railroad safety equipment.

We thus must consider the extent to which the Federal statutes and regulations deal with the subjects covered in D.P.U. 15,577 (see fn. 4). First we discuss the Federal Boiler Inspection Act.

Section 23 of Title 45 makes it unlawful for any rail carrier subject to the Interstate Commerce Act (see § 22) to use 'on its line any locomotive unless * * * (the) locomotive, its boiler, tender, and all parts and appurtenances * * * are in proper condition and safe' and unless the locomotive, its boiler, tender, and parts have been inspected as provided in §§ 28 to 30 and 32 and are able to withstand such tests as may be prescribed in rules and regulations. Section 28 provides that each carrier shall file rules for the inspection of locomotive boilers which shall become obligatory upon approval by the Interstate Commerce Commission (I.C.C.), subject to the proviso that, if the carrier does not file its rules, the I.C.C.'s director of locomotive inspection may prescribe obligatory rules subject to the I.C.C.'s approval. See United States v. Baltimore & Ohio R.R., 293 U.S. 454, 459--462, 55 S.Ct. 268, 79 L.Ed. 587. Section 29 provides for inspections by I.C.C. inspectors. Section 30 provides that the director of locomotive inspection and two assistants shall have 'the same powers and duties with respect to all the parts and appurtenances of the locomotive and tender that they have with respect to the (locomotive) boiler' and that the provisions of §§ 22 to 29 and 31 to 34 shall 'apply to * * * the entire locomotive and tender and all their parts' as fully as to locomotive boilers.

The Federal railroad administrator on December 18, 1968, issued a new compilation of the regulations of the Department of Transportation which are under the jurisdiction of the Federal Railroad Administration. See 33 Fed.Reg. 19607. Certain of these are set out in the margin. ⁵ Part 230 of these regulations is entitled 'Locomotive Inspection.' It is stated (33 Fed.Reg. 19622) that the basic statutory authority for the part is 45 U.S.C. §§ 23, 28 (portions of the Federal Boiler Inspection Act). There obviously is doubt whether any of these regulations cover the same ground with which D.P.U. 15,577 purports to deal, and whether the definition of 'locomotive' in § 230.0 was designed to deal with Budd cars at all.

Part 231 of the same regulations (33 Fed.Reg. 19663) is entitled, 'Railroad Safety Appliance Standards.' It recites as its statutory basis, 45 U.S.C. §§ 2, 4, 6, 8, 10, 11--16 (1964). These are portions of the statute (see also 49 U.S.C. § 26 (1964)) sometimes referred to as the Safety Appliance Acts. See 45 U.S.C. § 16 (1964). In general these provisions relate to specific safety devices. ⁶ In any event, the regulations contained in part 231, so far as applicable to passenger train cars (§§ 231.12--231.14), do not seem to deal in specific terms with emergency lights and emergency tools.

The railroads put principal reliance on Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432. In that case, under the Boiler Inspection Act (as amended through 1924, see 43 Stat. 659), State statutes requiring certain features to be included in locomotives were held invalid, because Congress by the act, as amended, had shown an intention (pp. 611--613, 47 S.Ct. p. 209) 'to occupy the * * * field' of 'the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.' State legislation in the field was held to be precluded, even though there had been no effort by the I.C.C. under its regulatory power to deal with the precise aspects of locomotives regulated by the State statutes. The Safety Appliance Act (now 45 U.S.C. §§ 1--16) was distinguished because 'its requirements are specific.' See Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280, 293, 34 S.Ct. 829, 58 L.Ed. 1312, where State regulation of headlights was held permissible, because (p. 294, 34 S.Ct. p. 833) 'Congress * * * (had) not yet decided to establish regulations, either directly or through its subordinate body, as to the appliance' there discussed. Cf. Southern Ry. v. Railroad Comm. of Ind., 236 U.S. 439, 446--447, 35 S.Ct. 304, 59 L.Ed. 661, and Gilvary v. Cuyahoga Valley Ry., 292 U.S. 57, 60--61, 54 S.Ct. 573, 78 L.Ed. 1123, which may state too broadly the rule concerning precluding State regulation. The Napier case was followed in United States v. Baltimore & Ohio R.R., 293 U.S. 454, 458--459, 55 S.Ct. 268. It was somewhat limited in its application to an extra experimental device in Southern Ry. v. Lunsford, 297 U.S. 398, 402, 56 S.Ct. 504, 80 L.Ed. 740.

Later cases may have blunted the force of the Napier case in some areas. For example, in Terminal R.R. Assn. of St. Louis v. Brotherhood of R.R. Trainmen, 318 U.S. 1, 4--9, 63 S.Ct. 420, 87 L.Ed. 571, the Supreme Court said that an Illinois commission could order caboose cars for certain trains and services (p. 7, 63 S.Ct. p. 423) 'in the absence of any Act of Congress that conflicts with the order or may be said to occupy its field,' although (pp. 8--9, 63 S.Ct. p. 424) the order might 'in some measure * * * retard and increase the cost of movements in interstate commerce.' ⁷ See Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443--448, 80 S.Ct. 813, 4 L.Ed.2d 852, holding that the Detroit smoke abatement code applies to ships, generally engaged in interstate commerce, but the opinion (p. 443, 80 S.Ct. p. 815) cites the Napier case in saying, 'Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action * * * or unduly burdensome on * * * interstate commerce.' Cf. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 766--784, 65 S.Ct. 1515, 89 L.Ed. 1915, but see p. 766, 65 S.Ct. p. 1518 ('Congress, in enacting legislation * * * (regulating) interstate commerce, will not be deemed to have intended to strike down a state statute designed to protect the * * * (public) safety * * * unless its purpose to do so is clearly manifested * * * or unless the state law, in terms or in its practical administration, conflicts with the Act of Congress, or plainly * * * infringes its policy').

In a careful recent decision the Supreme Court of New Jersey upheld an order of that State's board of public utility commissioners requiring partial restoration of manual flagging in territory protected by manual block signals, in part on the ground that the Interstate Commerce Act (49 U.S.C. § 26 (1964)) did not preclude such State action. In re Complaint of Brotherhood R.R. Trainmen, 49 N.J. 174, 229 A.2d 505. It was stated (p. 182) by Jacobs, J. that the Napier case, 272 U.S. 605, 611, 47 S.Ct. 207, 'has never been applied as broadly as the (r)ailroads contend * * * (I)n any event it dealt, not with a supplemental local emergency safety device * * * but with equipment attached to the locomotive which passes * * * from state to state and with respect to which the national interest in uniformity is vital and paramount.' This language, of course, recognized that the Napier case may still be followed with respect to locomotive equipment where the boiler inspection legislation clearly is applicable, despite (pp. 182--183, 229 A.2d 505) the tendency of the later Federal decisions, already cited, to treat State regulation,...