Southern Pac. Co. v. Peterson, 196

• Decision Date: 07 July 1930
• Docket Number: No. 196,195.,196
• Citation: 43 F.2d 198
• Parties: SOUTHERN PAC. CO. v. PETERSON, Atty. Gen. of Arizona. ATCHISON, T. & S. F. RY. CO. v. SAME.
• Court: U.S. District Court — District of Arizona

43 F.2d 198 (1930)

SOUTHERN PAC. CO. v. PETERSON, Atty. Gen. of Arizona.

ATCHISON, T. & S. F. RY. CO. v. SAME.

Nos. 196, 195.

District Court, D. Arizona.

July 7, 1930.

Alex B. Baker and Louis B. Whitney, both of Phœnix, Ariz. (Guy V. Shoup and Henly C. Booth, both of San Francisco, Cal., of counsel), for plaintiff Southern Pac. Company.

L. H. Chalmers, H. M. Fennemore, and Thomas G. Nairn, all of Phœnix, Ariz., and Robert Brennan, of Los Angeles, Cal. (E. E. McInnis and H. W. Davis, both of Chicago, Ill., of counsel), for plaintiff Atchison, T. & S. F. Ry. Co.

K. Berry Peterson, Atty. Gen. of Arizona, Charles L. Strouss, Asst. Atty. Gen. of Arizona, and Donald R. Richberg, Sp. Asst. Atty. Gen. of Illinois, for defendant.

JACOBS, District Judge.

These suits were commenced by the plaintiffs in the Phœnix division of the United States District Court of the District of Arizona. In each case, the plaintiff seeks to permanently enjoin the Attorney General of the State of Arizona from enforcing what is known as the Arizona Train Limit Law approved by the Governor on May 16, 1912, and also seeks temporary injunction. This law makes it unlawful for any railroad company in the state of Arizona to operate any passenger train consisting of more than fourteen cars and any freight train consisting of more than seventy freight cars, exclusive of caboose, over its road or any portion thereof, and provides for a penalty of not less than $100 nor more than $1,000 fine for each offense. The cause of action and the relief sought in each case being the same, upon filing of the bills, an order was entered by the trial court consolidating the cases and as they come within the provisions of section 266 of the Judicial Code (28 USCA § 380) the judge of the District Court called to his assistance Hon. Curtis D. Wilbur, United States Circuit Judge, and Hon. Adolphus F. St. Sure, United States District Judge, of the Ninth Circuit, at San Francisco, Cal.

The defendants filed answers and motions to dismiss, and, upon stipulation of all parties, the hearing of the applications for a temporary injunction and the motions to dismiss were set down for September 30, 1929, at San Francisco, Cal.

It appears from the bills that plaintiffs are operating transcontinental railroads from points in the state of California through the state of Arizona to Eastern States. That the bulk of the traffic, both freight and passenger, is interstate. That Arizona is the only state wherein any train limit law is in force.

That transcontinental freight trains leaving points in California frequently consist of from 80 to 160 cars. These trains are hauled to a division point west of and nearest the western boundary of Arizona, where they are broken up into shorter trains of seventy cars or less, to comply with the Arizona Train Limit Law, additional train and engine crews provided, then hauled through the state of Arizona to a division point east of and nearest the eastern boundary of the state, where the short trains are again coupled up into one long train, which continues on its transcontinental journey. The same practice exists as to west-bound transcontinental traffic.

Plaintiffs claim that this practice, which is made necessary in order to comply with the Arizona Train Limit Law, causes great delay in the handling and movement of their interstate traffic, both passenger and freight, including perishable food products, and necessitates the expenditure, between both companies, of an additional overhead cost of operation of about $1,000,000 annually. That the Arizona Train Limit Law is void, being an unlawful attempt to regulate interstate commerce, imposes an undue and unreasonable burden thereon, is in conflict with the Interstate Commerce Act and related acts, deprives plaintiffs of their property without due process of law, and denies the plaintiffs equal protection of the law, contrary to the Fourteenth Amendment to the Constitution of the United States. That Congress, under power conferred by the Constitution, having entered the field of legislation involved herein, the state of Arizona has thereby been deprived of the right to exercise its police power over the subject.

The motions to dismiss challenge the jurisdiction of the court upon the grounds: The bills fail to state a case or controversy and merely seek to obtain a declaratory judgment upon the validity of a state statute; that plaintiffs have not exhausted their remedies provided by the laws of Arizona; that the suits are against the state of Arizona by a citizen of another state in violation of the Eleventh Amendment to the Constitution; that defendant has not threatened and is not about to commence proceedings to enforce the statute against the plaintiffs; that there is want of equity, in that plaintiffs seek to restrain the enforcement of a penal statute said to be unconstitutional without showing (a) the institution or threat of any proceeding to enforce the law, (b) any injury to property rights actual or threatened, (c) lack of an adequate remedy at law, (d) existence or threat of any great, immediate, and irreparable injury, or (e) the necessity for or propriety of any equitable relief.

The answers admit the existence of the Arizona statute; deny that the statute is void on the ground that a limitation of train lengths is not a lawful subject of state legislation and is subject to exclusive legislation of Congress; and allege no information concerning other material allegations of the bills, and on that ground deny the same. They also allege that, if the plaintiffs insist upon the right to ignore the Arizona law and the defendant, after investigation, is of the opinion that the said law is not invalid, he will prosecute a test case in the state court and consent that all other proceedings except the test case be stayed until the validity or invalidity of the law is determined by the state court.

The applications for temporary injunction and the motions to dismiss were heard at San Francisco, Cal., on September 30 and October 1, 1929, and the court at the conclusion of the argument, owing to the state of the pleadings, denied the motions for temporary injunction and took under advisement the motions to dismiss.

It is unnecessary to comment at length on many of the questions raised by the defendant, as the law is well settled by judicial decisions against his contentions and a citation of authorities would lengthen this opinion unnecessarily. Suffice it to say that the bills do not merely seek to obtain a declaratory judgment upon the...