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CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD v. HARDIN

March 5, 1965

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, SUCCESSOR IN OFFICE TO LAWSON E. GLOVER, AND JOHN W. GOODSON, 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.



Before Van Oosterhout, Circuit Judge, and Miller and Henley, District Judges.

The opinion of the court was delivered by: John E. Miller, District Judge.

Plaintiffs' motion for summary judgment under the provisions of Rule 56, Fed.R.Civ.P., is before the court for disposition. The parties have served and submitted elaborate and thorough briefs in support of their respective contentions, and none of the parties has requested oral argument, but in view of the extensive briefs, the court does not believe any useful purpose would be served by oral argument and the motion has been considered upon the exhibits thereto, the affidavits, the pleadings and briefs.

Before discussing the questions presented by the motion, we believe it would be helpful to briefly outline the pleadings, other motions filed by intervenors prior to the filing of the motion for summary judgment, and the action of the court on such motions.

The complaint was filed April 10, 1964.*fn1 Paragraphs 1, 2 and 3 of the complaint are jurisdictional allegations. Paragraph 4 contains allegations of identity of the plaintiffs, and alleged that they are engaged in the transportation of property in interstate commerce over railroads which they own and operate in the State of Arkansas and numerous other states; that each plaintiff owns and operates lines more than 100 miles in length, regularly operates freight trains in Arkansas consisting of more than 25 cars, and regularly conducts switching operations in cities of the first and second class across public crossings, that by reason of such operations they are subject to the provisions of Act 116 of the Acts of Arkansas of 1907, Exhibit A*fn2 to complaint, and Act 67 of the Acts of Arkansas of 1913, Exhibit B*fn3 to complaint.

Paragraph 5 identifies the defendants as Prosecuting Attorneys in their respective circuits of Arkansas, and it is alleged therein that by virtue of the duties imposed upon them by law and by virtue of their oaths of office, they are threatening to enforce the penalties of these Acts and will enforce the penalties unless restrained by this court.

In paragraphs 6, 7 and 8 it is alleged:

    "(6) As applied to these plaintiffs, these Acts are
  in violation of the due process clause of the
  Fourteenth Amendment to the United States
  Constitution in that they are arbitrary, capricious,
  discriminatory and unreasonable in their operation
  and bear no reasonable relationship to the purported
  purpose of safety to employees and the public.
    "(7) As applied to these plaintiffs, these Acts are
  in violation of the equal protection clause of the
  Fourteenth Amendment to the United States
  Constitution in that they single out the railroad
  industry in the State of Arkansas, of which
  plaintiffs are a part, and impose by statute upon it
  alone, arbitrary, inflexible requirements as to the
  minimum number of employees which must be assigned in
  its business as therein provided.
    "(8) As applied to these plaintiffs, these Acts are
  in violation of Article I, Section 8, Clause 3 of the
  Constitution of the United States, known as the
  Commerce Clause, in that they impose upon plaintiffs'
  conduct of interstate commerce unreasonable and
  arbitrary requirements constituting a direct
  interference with, burden upon, and impediment of
  such commerce, and in that they greatly and
  unreasonably increase plaintiffs' operating costs
  within the State of Arkansas. * * In addition to the
  financial burden imposed on plaintiffs by these Acts,
  they further operate to unduly and unreasonably
  burden interstate commerce in that some plaintiffs
  are required to stop or slow interstate trains at
  various points entering and leaving the State of
  Arkansas for the sole purpose of loading or unloading
  employees who are unnecessary to the safe and
  efficient operation of these trains, and such
  interstate commerce is therefore unreasonably
  delayed."

In paragraph 9 it is alleged that the Acts are also in violation of the Commerce Clause in that they discriminate against interstate commerce in favor of local or intrastate commerce. Act 116 of 1907 applies only to plaintiffs and seven other interstate railroads operating in Arkansas, because each of the twelve interstate railroads operating in Arkansas owns and operates in excess of 50 miles of line; the Act exempts all sixteen of the intrastate railroads operating in Arkansas because each has less than 50 miles of line; Act 67 of 1913 exempts all intrastate railroads and penalizes only plaintiffs and two other interstate railroads with at least 100 miles of line; and this classification "constitutes a direct, substantial and discriminatory burden upon interstate commerce."

Paragraphs 14, 15, 16, 17, 18, 19, 20 and 21 are factual allegations relative to the enactment of Public Law 88-108, August 28, 1963 (Plaintiffs' Exhibit 3).

Paragraphs 22, 23, 24 and 25 are allegations of the proceedings that followed the enactment of Public Law 88-108 and the award and opinion issued November 26, 1963, by the Arbitration Board.

In paragraph 26 the plaintiffs alleged that as a result of the award "the federal government has entered the field pertaining to regulation of manning of trains and locomotives and, by reason of the Commerce Clause and Supremacy Clause of the United States Constitution, has pre-empted the State of Arkansas' power and authority to enforce state legislation inconsistent with, and contrary to, that Award."

In paragraph 27 plaintiffs alleged:

    "The enforcement of Exhibits `A' and `B' will
  frustrate, hinder and prevent the execution and
  operation in Arkansas of Public Law 88-108, and the
  Award made pursuant thereto, and would further
  frustrate and prevent the nationally uniform
  operation of federal legislation intended by the
  Congress to provide a uniform solution to a national
  problem."

In paragraph 28 the plaintiffs alleged that they have no adequate remedy at law, and that unless the court enters a judgment declaring the Acts of Arkansas void and invalid and restrains and enjoins the defendants from the enforcement of the Acts, plaintiffs will either be compelled to bear the heavy burden and cost of complying with these Acts or will be exposed to prosecution for violation of the laws. The prayer of the complaint was in accordance with the allegations of the complaint.

On April 13, the Chief Judge of the Eighth Circuit, Hon. Harvey M. Johnsen, designated the acting Judges "as members of a Three-Judge District Court to hear and determine said action and proceeding."

On April 29 the intervenors named in the caption hereof filed a motion for permission to intervene. On May 8 an order was entered granting such leave and allowing intervenors 60 days in which to plead. On July 6 intervenors filed a motion to dismiss the complaint "for failure to state a claim upon which relief should be granted." On July 31 intervenors filed a motion to dismiss for failure to "establish statutory jurisdiction for a Three-Judge Federal Court."

On May 11 the defendants upon their motion were allowed 60 days in which to answer or otherwise plead. The answer of defendants was filed July 10, substantially denying allegations of the complaint and specifically denying paragraphs 26 and 27. In paragraph 13 of the answer the defendants admitted that in the event plaintiffs do not comply with the Acts, they will be exposed to prosecution for violation.

Simultaneously with the filing of the motion of intervenors to dismiss for lack of jurisdiction, they also moved for an order setting consolidated oral argument on the motion to dismiss for failure to state a claim and the motion to dismiss for lack of statutory jurisdiction. On August 19 the motion for order setting consolidated argument on the motions was denied and overruled. On August 25 by separate orders the court overruled both the motions.

On September 4 the answer of intervenors was filed, in which they denied that the "Arkansas Statutes in controversy are void and unconstitutional." In paragraph 4 of their answer the intervenors alleged:

    "Intervenors specifically deny each and every
  allegation of paragraphs 6, 7, 8, 9 and 13, together
  with all assertions of law and implications of fact
  therein, except that Intervenors admit the allegation
  in paragraph 7 that plaintiffs each operate railroads
  of more than 100 miles and there are other railroad
  companies in Arkansas with less than 100 and less
  than 50 miles of line and that Act 116 of 1907
  applies to 12 railroads operating in Arkansas and Act
  67 of 1913 applies to 8 railroads operating in
  Arkansas."

In paragraph 9 of the answer the intervenors alleged:

    "Intervenors specifically deny the allegations of
  paragraphs 26 and 27 of the complaint that the
  federal government has pre-empted the field of local
  railroad operations concerning the consist of crews
  through Public Law 88-108, the Special Arbitration
  Award, or executive branch pronouncements or actions
  so as to prevent the operation of the Arkansas
  Statutes in controversy."

On September 15 intervenors filed identical motions to require each of plaintiffs to produce certain named documents pursuant to Rule 34, Fed.R.Civ.P. On September 16 plaintiffs filed their response to the motion in which, inter alia, they stated:

    "That plaintiffs will file a motion for summary
  judgment herein in the near future on the grounds (a)
  that the state laws in question are pre-empted by
  federal legislation and (b) that the state laws in
  question constitute discriminatory legislation
  against interstate commerce in favor of intrastate
  commerce in contravention of the Commerce Clause of
  the Constitution of the United States. The documents
  sought by the motions are not relevant to the issues
  that will be raised by the motion for summary
  judgment, if summary judgment is granted they will
  never become relevant in this litigation, and
  therefore the very burdensome task of producing such
  documents should be deferred until disposition of the
  motion for summary judgment."

On September 18 the court entered an order that hearing and action on the motions "be deferred until the filing and disposition of the motion for summary judgment which plaintiffs contemplate filing, as set forth in their response, or until the further orders of the court."

The motion for summary judgment was filed October 17, and as grounds therefor the plaintiffs alleged:

"1.

"2.

    "That Act 116 of the Acts of Arkansas of 1907 and
  Act 67 of the Acts of Arkansas of 1913 constitute
  discriminatory legislation against interstate
  commerce in favor of intrastate commerce in
  contravention of the Commerce Clause of the
  Constitution of the United States.

"3.

    "That Act 116 of the Acts of Arkansas of 1907 and
  Act 67 of the Acts of Arkansas of 1913 constitute a
  denial of the equal protection of the laws to
  plaintiffs in contravention of the Equal Protection
  Clause of the Fourteenth Amendment to the
  Constitution of the United States.

"4.

    "That there is no genuine issue as to any material
  fact relating to the foregoing allegations."

In the second paragraph of the introductory statement of plaintiffs' brief in chief, they stated:

    "The legal questions presented are whether federal
  law has superseded state regulation in the area of
  railroad crew consist, whether these state laws
  constitute prohibited discrimination against
  interstate commerce, and whether they deny plaintiffs
  equal protection of the law. The Court's ruling on
  those issues, in effect, will resolve the important
  question of whether the plaintiff railroads are to
  continue to sustain a massive financial burden. It is
  unnecessary to calculate the precise cost of
  compliance with these laws in order to pass on the
  questions raised by the Motion. The annual cost of
  compliance to plaintiffs is alleged in the Complaint
  to exceed $6,000,000. Intervenors in paragraph 7(b)
  of their Answer alleged such cost to be not `not
  significantly higher' than 1% of plaintiffs' total
  revenues. Plaintiffs' total revenues during 1963 are
  indicated by Plaintiffs' Exhibit 6 to have been
  $813,212,183, thus 1% would be $8,132,122. It is
  sufficient for the purpose of this Motion that the
  cost of compliance is undisputed to be a very large
  sum."

The court has jurisdiction of the subject matter and the parties. The Bordon Co. v. Liddy, (8 Cir. 1962) 309 F.2d 871; Kessler v. Dept. of Public Safety of Utah, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962).

The relevant facts as set forth in the affidavits and exhibits to the motion for summary judgment are not controverted, and "there is no genuine issue as to any material fact" relevant to the questions raised by the allegations in paragraph number one of the motion.

The contention of plaintiffs on the question of pre-emption is stated in their brief as follows:

    "It is the position of plaintiffs that Public Law
  88-108, The Railway Labor Act of which it became a
  part, and the Interstate Commerce Act constitute
  occupation by the Congress of the field of regulation
  of railroad crew consist to the exclusion of such
  regulation by the states."

In the first paragraph of the Message from the President of the United States to the Congress, July 22, 1963, the President stated:

    "This Nation stands on the brink of a nationwide
  rail strike that would, in very short order, create
  widespread economic chaos and distress. After more
  than 3 1/2 years of constant but fruitless attempts
  to achieve a peaceful settlement between the parties
  through every private and public means available,
  this dispute has reached the point where

  only prompt and effective congressional action can
  assure that serious injury to the public will be
  prevented."

The entire message with the various reports and appendices were introduced as plaintiffs' Exhibit 1. It is House Document No. 142.

Briefly stated, on November 2, 1959, virtually all the Nation's railroads served upon the five railroad operating Brotherhoods (intervenors), notices pursuant to Section 6 of the Railway Labor Act, 45 U.S.C. § 156, proposing changes in existing collective bargaining agreements relating to the use of firemen, the consist of train crews, and other subjects. On September 7, 1960, the Brotherhoods served joint notices pursuant to the same statute upon the railroads relating to the consist of both engine and train crews and other subjects.

The gist of the railroads' proposals with regard to crew consist was to eliminate prior agreements requiring the use of firemen and various stipulated numbers of other crew members and to restore these matters to management discretion and decision. The proposals of the Brotherhoods in this area were to establish new national rules fixing the minimum crew consist on all locomotives as an engineer and a fireman and a minimum crew of three trainmen in all freight and yard assignments. On November 1, 1960, a Presidential Railroad Commission was established to investigate the facts and make recommendations for the resolution of the dispute arising out of the notices. After extensive hearings the Commission issued its report and recommendations on February 28, 1962, which found firemen unnecessary on freight trains, and which provided for the elimination of firemen in freight service and for procedures whereby the number of brakemen and switchmen could be reduced. The report is contained in an official publication by the U.S. Government Printing Office and was attached to the motion as plaintiffs' Exhibit 2. The Commission recommended that a new national agreement be perfected which would include the following provisions:

    "1. After July 1, 1962, firemen-helpers need not be
  assigned to other than steam locomotives in freight
  and yard service, except as provided in paragraphs 4,
  5, 6, and 9 below.
    "2. After July 1, 1962, new firemen-helpers need
  not be hired to man road freight and yard diesels.
    "3. Firemen-helpers and engineers shall be retired
  from active service in accordance with the provisions
  of the national retirement rules set forth in
  recommendation 4 of chapter 3."

The remainder of the recommendation deals with allowances in the form of protective measures for persons separated from service. (Pp. 48-49, Exhibit 2.) Chapter 6, pp. 53-64, inclusive, deals with the subject of consist of crews other than engine service. At page 56 of Exhibit 2, the Commission stated:

  "It is established that those few carriers which are
  not subject to crew consist rules and practices have
  crews somewhat smaller on the average than those
  carriers subject to such rules and practices. This
  suggests, although it does not conclusively prove,
  that the latter are to some extent subject to excess
  manning requirements. More persuasive is the fact
  that there are varying crew consists in road service
  on trains operated under similar conditions, as they
  pass from States having no `full crew' laws into
  States having such laws. This is inferential evidence
  that the parties themselves consider that the
  difference in manpower requirements is not always
  warranted."

Beginning on page 63 of the Exhibit, the Commission stated:

The report and recommendations of the Presidential Railroad Commission were accepted by the railroads but rejected by the Brotherhoods. Thereafter the Brotherhoods requested mediation by the National Mediation Board pursuant to Section 5 of the Railway Labor Act, 45 U.S.C. § 155, and on June 26, 1962, that Board pursuant to Section 5 of the Railway Labor Act, 45 U.S.C. § 155, proffered arbitration of the dispute under Sections 7 and 8 of that Act. The railroads agreed to arbitration, but the Brotherhoods rejected the proffer, whereupon the National Mediation Board terminated its services. Litigation followed. Brotherhood of Loc. Eng. v. B. & O.R. Co., 372 U.S. 284, 83 S.Ct. 691, 9 L.Ed.2d 759 (1963), in which the court at page 291 of 372 U.S., at page 695 of 83 S.Ct., in disposing of the case, said:

  "What is clear, rather, is that both parties, having
  exhausted all of the statutory procedures, are
  relegated to self-help in adjusting this dispute,
  subject only to the invocation of the provisions of §
  10 providing for the creation of an Emergency Board."

Section 10 of the Railway Labor Act, as amended, 45 U.S.C. § 160, provides that if a dispute between a carrier and its employees is not settled under other provisions of the Act and such dispute should, in the judgment of the Mediation Board, threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President, who may thereupon, in his discretion, create a board to investigate and report respecting such dispute.

The President created such an emergency board which submitted its report and recommendations on May 13, 1963, which were accepted by the railroads and rejected by the Brotherhoods as a basis for settling the national labor dispute. Other efforts were made by the President but with no avail, and ultimately the President sent the Message, hereinbefore referred to, (Exhibit 1), to the Congress recommending legislation to impose a settlement on the parties and avoid a threatened national railway strike.

Upon receipt of the Message the Congress acted quickly and efficiently. Public Law 88-108 was enacted August 28, 1963, 77 Stat. 132, 45 U.S.C. § 157 note (1964 Supp.). Section 2 of the Act provided for the creation of an Arbitration Board, which was directed to decide the questions raised in the notices served by the railroads and Brotherhoods relating to the use of firemen and train consist crews and to make an award. Section 3 of the Act, inter alia, provides:

  "The arbitration board shall make a decision,
  pursuant to the procedures hereinafter set forth, as
  to what disposition shall be made of those portions
  of the carriers' notices of November 2, 1959,
  identified as `Use of Firemen (Helpers) on Other Than
  Steam Power' and `Consist of Road and Yard Crews' and
  that portion of the organizations' notices of
  September 7, 1960, identified as `Minimum Safe Crew
  Consist' and implementing proposals pertaining
  thereto. The arbitration board shall incorporate in
  such decision any matters on which it finds the
  parties were in agreement, shall resolve the matters
  on which the parties were not in agreement, and
  shall, in making its award, give due consideration to
  those matters on which the parties

  were in tentative agreement. Such award shall be
  binding on both the carrier and organization parties
  to the dispute and shall constitute a complete and
  final disposition of the aforesaid issues covered by
  the decision of the board of arbitration." (Emphasis
  added.)

Section 4 of the Act provided that the arbitration was to be conducted pursuant to the arbitration provisions of the Railway Labor Act to the extent that such was feasible, and "the board's award shall be made and filed as provided in said sections and shall be subject to section 9 of said Act. The United States District Court for the District of Columbia is hereby designated as the court in which the award is to be filed * * *." The Arbitration Board, pursuant to the provisions of the statute, after extensive hearings and proceedings, issued its award on November 26, 1963. The award provided that subject to certain protective provisions for employees, 90 percent of the firemen positions (excluding passenger service) on railroads were to be abolished. This was predicated upon the Board's finding that such employees were unnecessary to the safe and efficient operation of freight and yard Diesel locomotives. The full findings of the Arbitration Board on this issue appear in full in subsection 7, pp. 27-28, of the opinion of the neutral members (Plaintiffs' Exhibit 4). As to the crew consist issue, the Board found that the consist of freight and yard crews had "* * * been determined generally by local rules, practices, state full crew laws, or regulations issued by public utility commissions." At page 45 of the opinion of the neutral members (Plaintiffs' Exhibit 4), the following statement appears:

    "It has been explained earlier in this opinion that
  the size of road and yard crews in other than engine
  service has never been the subject of a national rule
  in the railroad industry. The consist of these crews,
  involving primarily helpers and road brakemen, has
  been determined generally by local rules, practices,
  state full crew laws, or regulations issued by State
  Public Utility Commissions. Only a relatively few
  carriers are unrestricted in determining the size of
  crews, and it is doubtful if even they have complete
  freedom to change crew size as they wish. It is clear
  from the evidence before us that the myriad of local
  arrangements has led to numerous inconsistencies in
  the manning of crews. It is equally clear that some
  of the existing rules, originating as they did more
  than a half-century ago, are anachronistic and do not
  reflect the present state of railroad technology and
  operating conditions."

The award provided a binding arbitration procedure whereby the number of crew members to be used in road, freight and yard crews was to be fixed on a local basis. (See pp. 14-19 of the Award, Plaintiffs' Exhibit 4.) The special boards of adjustment authorized in the Award to fix the size of such crews have convened and discharged that mandate on each of the plaintiff railroads, with the result that many switch crews have been fixed at less than three helpers and many freight crews have been fixed at less than three brakemen.

The awards of the special boards of adjustment under and by virtue of the provisions of the Act to fix train and yard crew consists on the Missouri Pacific Railroad and the Texas and Pacific Railroad appear in Exhibit 5. The award respecting the northern, central and southern districts of Missouri Pacific Railroad Company is of utmost importance in this litigation since it covers the vast majority of the operation of the railroad in Arkansas. The award is as follows:

  "1. (a) All main line local freight trains will be
          operated with a minimum of two brakemen.
      (b) All classes of road service, including all
          miscellaneous and unclassified service, on

          branch lines will be operated with ...

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