| Southern Pacific Co. v. Arizona
(No. 56)
61 Ariz. 66, 145 P.2d 530, reversed. |
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| Syllabus
| Opinion
[ Stone ] | Dissent
[ Black ] | Dissent
[ Douglas ] |
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Southern Pacific Co. v. Arizona
APPEAL FROM THE SUPREME COURT OF ARIZONA
MR. JUSTICE BLACK, dissenting.
In Hennington v. Georgia, 163 U.S. 299, 304, a case which involved the power of a state to regulate interstate traffic, this Court said,
The whole theory of our government, federal and state, is hostile to the idea that questions of legislative authority may depend . . . upon opinions of judges as to the wisdom or want of wisdom in the enactment of laws under powers clearly conferred upon the legislature.
What the Court decides today is that it is unwise governmental policy to regulate the length of trains. I am therefore constrained to note my dissent.
For more than a quarter of a century, railroads and their employees have engaged in controversies over the relative virtues and dangers of long trains. Railroads have argued that they could carry goods and passengers cheaper in long trains than in short trains. They have also argued that, while the danger of personal injury to their employees might, in some respects, be greater on account of the operation of long trains, this danger was more than offset by an increased number of accidents from other causes brought about by the operation of a much larger number of short trains. These arguments have been, and are now, vigorously denied. While there are others, the chief causes assigned for the belief that long trains unnecessarily jeopardize the lives and limbs of railroad employees relate to "slack action." Cars coupled together retain a certain free play of movement, ranging between 1 1/2 inches and 1 foot, and this is called "slack action." Train brakes do not ordinarily apply or release simultaneously on all cars. This frequently results in a severe [p785] shock or jar to cars, particularly those in the rear of a train. It has always been the position of the employees that the dangers from "slack action" correspond to, and are proportionate with, the length of the train. The argument that "slack movements" are more dangerous in long trains than in short trains seems never to have been denied. The railroads have answered it by what is, in effect, a plea of confession and avoidance. They say that the added cost of running short trains places an unconstitutional burden on interstate commerce. Their second answer is that the operation of short trains requires the use of more separate train units; that a certain number of accidents resulting in injury are inherent in the operation of each unit, injuries which may be inflicted either on employees or on the public; consequently, they have asserted that it is not in the public interest to prohibit the operation of long trains.
In 1912, the year Arizona became a state, its legislature adopted and referred to the people several safety measures concerning the operation of railroads. One of these required railroads to install electric headlights, a power which the state had under this Court's opinion in Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280. Another Arizona safety statute, submitted at the same time, required certain tests and service before a person could act as an engineer or train conductor, and thereby exercised a state power similar to that which this Court upheld in Nashville, C. & St.L. R. Co. v. Alabama, 128 U.S. 96. The third safety statute which the Arizona legislature submitted to the electorate, and which was adopted by it, is the train limitation statute now under consideration. By its enactment, the legislature and the people adopted the viewpoint that long trains were more dangerous than short trains, and limited the operation of train units to 14 cars for passenger and 70 cars for freight. This same question was considered in other states, and some of them, [p786] over the vigorous protests of railroads, adopted laws similar to the Arizona statute. [n1]
This controversy between the railroads and their employees, which was nationwide, was carried to Congress. Extensive hearings took place. The employees' position was urged by members of the various Brotherhoods. The railroads' viewpoint was presented through representatives of their National Association. In 1937, the Senate Interstate Commerce Committee, after its own exhaustive hearings, unanimously recommended that trains be limited to 70 cars as a safety measure. [n2] The Committee, in its Report, reviewed the evidence and specifically referred to the large and increasing number of injuries and deaths suffered by railroad employees; it concluded that the admitted danger from slack movement was greatly intensified by the operation of long trains; that short trains reduce this danger; that the added cost of short trains to the railroad was no justification for jeopardizing the safety of railroad employees, and that the legislation would provide a greater degree of safety for persons and property, increase protection for railway employees and the public, and improve transportation services for shippers and consumers. The Senate passed the bill, [n3] but the House Committee failed to report it out.
During the hearings on that measure, frequent references were made to the Arizona statute. It is significant, however, that American railroads never once asked Congress to exercise its unquestioned power to enact uniform legislation on that subject, and thereby invalidate the [p787] Arizona law. That which, for some unexplained reason, they did not ask Congress to do when it had the very subject of train length limitations under consideration, they shortly thereafter asked an Arizona state court to do.
In the state court, a rather extraordinary "trial" took place. Charged with violating the law, the railroad admitted the charge. It alleged that the law was unconstitutional, however, and sought a trial of facts on that issue. The essence of its charge of unconstitutionality rested on one of these two grounds: (1) the legislature and people of Arizona erred in 1912 in determining that the running of long trains was dangerous; or (2) railroad conditions had so improved since 1912 that previous dangers did not exist to the same extent, and that the statute should be stricken down either because it cast an undue burden on interstate commerce by reason of the added cost or because the changed conditions had rendered the Act "arbitrary and unreasonable." Thus, the issue which the court "tried" was not whether the railroad was guilty of violating the law, but whether the law was unconstitutional, either because the legislature had been guilty of misjudging the facts concerning the degree of the danger of long trains or because the 1912 conditions of danger no longer existed.
Before the state trial court finally determined that the dangers found by the legislature in 1912 no longer existed, it heard evidence over a period of 5 1/2 months, which appears in about 3,000 pages of the printed record before us. It then adopted findings of fact submitted to it by the railroad, which cover 148 printed pages, and conclusions of law which cover 5 pages. We can best understand the nature of this "trial" by analogizing the same procedure to a defendant charged with violating a state or national safety appliance act, where the defendant comes into court and admits violation of the act. In such cases, the ordinary procedure would be for the court to pass upon [p788] the constitutionality of the act, and either discharge or convict the defendants. The procedure here, however, would justify quite a different trial method. Under it, a defendant is permitted to offer voluminous evidence to show that a legislative body has erroneously resolved disputed facts in finding a danger great enough to justify the passage of the law. This new pattern of trial procedure makes it necessary for a judge to hear all the evidence offered as to why a legislature passed a law, and to make findings of fact as to the validity of those reasons. If, under today's ruling, a court does make findings as to a danger contrary to the findings of the legislature, and the evidence heard "lends support" to those findings, a court can then invalidate the law. In this respect, the Arizona County Court acted, and this Court today is acting, as a "super legislature." [n4] [p789]
Even if this method of invalidating legislative acts is a correct one, I still think that the "findings" of the state court do not authorize today's decision. That court did not find that there is no unusual danger from slack movements in long trains. It did decide on disputed evidence that the long train "slack movement" dangers were more than offset by prospective dangers as a result of running a larger number of short trains, since many people might be hurt at grade crossings. There was undoubtedly some evidence before the state court from which it could have reached such a conclusion. There was undoubtedly as much evidence before it which would have justified a different conclusion.
Under those circumstances, the determination of whether it is in the interest of society for the length of trains to be governmentally regulated is a matter of public policy. Someone must fix that policy -- either the Congress, or the state, or the courts. A century and a half of constitutional history and government admonishes this Court to leave that choice to the elected legislative representatives of the people themselves, where it properly belongs both on democratic principles and the requirements of efficient government.
I think that legislatures, to the exclusion of courts, have the constitutional power to enact laws limiting train lengths, for the purpose of reducing injuries brought about by "slack movements." Their power is not less because a requirement of short trains might increase grade crossing accidents. This latter fact raises an entirely different [p790] element of danger which is itself subject to legislative regulation. For legislatures may, if necessary, require railroads to take appropriate steps to reduce the likelihood of injuries at grade crossings. Denver & R.G. R. Co. v. Denver, 250 U.S. 241. And the fact that grade crossing improvements may be expensive is no sufficient reason to say that an unconstitutional "burden" is put upon a railroad, even though it be an interstate road. Erie R. Co. v. Public Utility Commissioners, 254 U.S. 394, 408-411.
The Supreme Court of Arizona did not discuss the County Court's so-called findings of fact. It properly designated the Arizona statute as a safety measure, and, finding that it bore a reasonable relation to its purpose, declined to review the judgment of the legislature as to the necessity for the passage of the act. In so doing, it was well fortified by a long line of decisions of this Court. Today's decision marks an abrupt departure from that line of cases.
There have been many sharp divisions of this Court concerning its authority, in the absence of congressional enactment, to invalidate state laws as violating the Commerce Clause. See e.g., Adams Manufacturing Co. v. Storen, 304 U.S. 307; Gwin, White & Prince v. Henneford, 305 U.S. 434; McCarroll v. Dixie Greyhound Lines, 309 U.S. 176. That discussion need not be renewed here, because even the broadest exponents of judicial power in this field have not heretofore expressed doubt as to a state's power, absent a paramount congressional declaration, to regulate interstate trains in the interest of safety. For, as early as 1913, this Court, speaking through Mr. Justice Hughes, later Chief Justice, referred to
the settled principle that, in the absence of legislation by Congress, the states are not denied the exercise of their power to secure safety in the physical operation of railroad trains within their territory, even though such trains are used in interstate commerce. That has been the law [p791] since the beginning of railroad transportation.
Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280, 91. Until today, the oft-repeated principles of that case have never been repudiated in whole or in part.
But, it is said today, the principle there announced does not apply, because, if one state applies a regulation of its own to interstate trains, "uniformity" in regulation, or rather non-regulation, is destroyed. Justice Hughes, speaking for the Court in the Atlantic Coast Line case, made short shrift of that same argument. He there referred to the contention that,
if state requirements conflict, it will be necessary to carry additional apparatus and to make various adjustments at state lines which would delay and inconvenience interstate traffic.
In answer to this argument, he reiterated a former declaration of this Court in New York, N.H. & H. R. Co. v. New York, 165 U.S. 628, on this subject, and added that
[i]f there is a conflict in such local regulations, by which interstate commerce may be inconvenienced -- if there appears to be need of standardization of safety appliances and of providing rules of operation which will govern the entire interstate road irrespective of state boundaries -- there is a simple remedy, and it cannot be assumed that it will not be readily applied if there be real occasion for it. That remedy does not rest in a denial to the state, in the absence of conflicting federal action, of its power to protect life and property within its borders, but it does lie in the exercise of the paramount authority of Congress, in its control of interstate commerce, to establish such regulations as, in its judgment, may be deemed appropriate and sufficient. Congress, when it pleases, may give the rule and make the standard to be observed on the interstate highway.
P. 292.
That same statement has, in substance, been made in many other decisions of this Court, a number of which are cited in the Atlantic Coast Line case, and all of them [p792] are today swept into the discard. In no one of all these previous cases was it more appropriate than here to call attention to the fact that Congress could, when it pleased, establish a uniform rule as to the length of trains. Congress knew about the Arizona law. It is common knowledge that the Interstate Commerce Committees of the House and the Senate keep in close and intimate touch with the affairs of railroads and other national means of transportation. Every year brings forth new legislation which goes through those Committees, much of it relating to safety. The attention of the members of Congress and of the Senate has been focused on the particular problem of the length of railroad trains. We cannot assume that they were ignorant of the commonly known fact that a long train might be more dangerous in some territories and on some particular types of railroad. The history of congressional consideration of this problem leaves little if any room to doubt that the choice of Congress to leave the state free in this field was a deliberate choice, which was taken with a full knowledge of the complexities of the problems and the probable need for diverse regulations in different localities. I am therefore compelled to reach the conclusion that today's decision is the result of the belief of a majority of this Court that both the legislature of Arizona and the Congress made wrong policy decisions in permitting a law to stand which limits the length of railroad trains. I should at least give the Arizona statute the benefit of the same rule which this Court said should be applied in connection with state legislation under attack for violating the Fourteenth Amendment, that is, that legislative bodies have
a wide range of legislative discretion, . . . and their conclusions respecting the wisdom of their legislative acts are not reviewable by the courts.
Arizona Employers' Liability Cases, 250 U.S. 400, 419. [p793]
When we finally get down to the gist of what the Court today actually decides, it is this: even though more railroad employees will be injured by "slack action" movements on long trains than on short trains, there must be no regulation of this danger in the absence of "uniform regulations." That means that no one can legislate against this danger except the Congress, and even though the Congress is perfectly content to leave the matter to the different state legislatures, this Court, on the ground of "lack of uniformity," will require it to make an express avowal of that fact before it will permit a state to guard against that admitted danger.
We are not left in doubt as to why, as against the potential peril of injuries to employees, the Court tips the scales on the side of "uniformity." For the evil it finds in a lack of uniformity is that it (1) delays interstate commerce, (2) increases its cost and (3) impairs its efficiency. All three of these boil down to the same thing, and that is that running shorter trains would increase the cost of railroad operations. The "burden" on commerce reduces itself to mere cost, because there was no finding, and no evidence to support a finding, that, by the expenditure of sufficient sums of money, the railroads could not enable themselves to carry goods and passengers just as quickly and efficiently with short trains as with long trains. Thus, the conclusion that a requirement for long trains will "burden interstate commerce" is a mere euphemism for the statement that a requirement for long trains will increase the cost of railroad operations.
In the report of the Senate Committee, supra, attention was called to the fact that, in 1935, 6,351 railroad employees were injured while on duty, with a resulting loss of more than 200,000 working days, and that injuries to trainmen and enginemen increased more than 29% in 1936. [n5] Nevertheless, [p794] the Court's action in requiring that money costs outweigh human values is sought to be buttressed by a reference to the express policy of Congress to promote an "economical national railroad system." I cannot believe that, if Congress had defined what it meant by "economical," it would have required money to be saved at the expense of the personal safety of railway employees. Its whole history for the past 25 years belies such an interpretation of its language. Judicial opinions, rather than legislative enactments, have tended to emphasize costs. See Tiller v. Atlantic Coast Line R. Co., supra, 560. A different congressional attitude has been shown by the passage of numerous safety appliance provisions, a federal employees' compensation act, abolition of the judicially created doctrine of assumption of risk and contributory negligence, and various other types of legislation. Unfortunately, the record shows, as pointed out in the Tiller case, that the courts have, by narrow and restricted interpretation, too frequently reduced the full scope of protection which Congress intended to provide.
This record in its entirety leaves me with no doubt whatever that many employees have been seriously injured and killed in the past, and that many more are likely to be so in the future, because of "slack movement" in trains. Everyday knowledge, as well as direct evidence presented at the various hearings, substantiates the report of the Senate Committee that the danger from slack movement is greater in long trains than in short trains. It may be that offsetting dangers are possible in the operation of short trains. The balancing of these probabilities, however, is not, in my judgment, a matter for judicial determination, but one which calls for legislative consideration. Representatives elected by the people to make their laws, rather than judges appointed to interpret those laws, can best determine the policies which govern the people. That, at least, is the basic principle on which our democratic [p795] society rests. I would affirm the judgment of the Supreme Court of Arizona.
1. A resume of these laws and their reception by the courts is set out in the opinion of the Supreme Court of Arizona in this case, 61 Ariz. 66, 145 P.2d 530.
2. Senate Report No. 416, 75th Cong., 1st Sess.
3. 81 Cong.Rec. 7596. The record does not show any dissenting votes cast against the bill. The debate on the measure appears at pp. 7564-7595.
4. The Court today invalidates the Arizona law in accordance with the identical "super legislature" method (so designated by Justices Brandeis and Holmes) used by the majority to invalidate a Nebraska statute regulating the weights of loaves of bread. Burns Baking Co. v. Bryan, 264 U.S. 504, 534. For here, as there, this Court has overruled a state legislature's finding that an evil existed, and that the state law would not impose an unconstitutional "burden" upon those regulated. The dissent in the Burns case said:
To decide, as a fact, that the prohibition of excess weights "is not necessary for the protection of the purchasers against imposition and fraud by short weights;" that it "is not calculated to effectuate that purpose," and that it "subjects bakers and sellers of bread" to heavy burdens, is, in my opinion, an exercise of the powers of a super legislature -- not the performance of the constitutional function of judicial review.
That decision rested on the Due Process Clause, while today's decision rests on the Commerce Clause. But that difference does not make inapplicable here the principles invoked by the dissenters in the Burns case.
The use of the "super legislature" technique has been repeated to strike down other statutes. See e.g., Chicago, M. & St.P. R. Co. v. Wisconsin, 238 U.S. 491, 499; Weaver v. Palmer Bros. Co., 270 U.S. 402, dissent at 415. See also dissents in Schlesinger v. Wisconsin, 270 U.S. 230, 241, 242; New State Ice Co. v. Liebmann, 285 U.S. 262, 284-285. For a case in which this Court declined to review the "economics or the facts" behind a legislative enactment, see Central Lumber Co. v. South Dakota, 226 U.S. 157, 161; cf. Standard Oil Co. v. Marysville, 279 U.S. 582, 586. See also Powell v. Pennsylvania, 127 U.S. 678, 686; dissenting opinion, Polk Co. v. Glover, 305 U.S. 5, 10-19.
5. These figures appear to be considerably less than those later reported. See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 59, note 4.
