Defendant was convicted under an indictment returned March 17, 1916, charging a violation of an act of the Legislature entitled "An act relating to the safety of employés and other persons on railroads, by providing for power headlights on all engines operated in road service in the night-time, with a penalty for the violation thereof," approved July 17, 1915, and commonly called the "Locomotive Headlight Law." General Acts 1915, p. 257. By the provisions of that law, all companies, etc., operating railroads (with certain exceptions), were required to equip, maintain, and use upon every locomotive, operated in road service in the state in the nighttime, a power headlight of not less than 1,500 candle power brilliancy, measured with the aid of a suitable reflector, etc.; 25 per cent. of such locomotives to be equipped within six months, and 50 per cent. within nine months from the passage and approval of the act. The question of paramount importance presented is: Had Congress, by the act approved March 4, 1915 (38 Stat. 1192, c. 169 [U.S. Comp. St. 1916, §§ 8639a-8639d]), *Page 200 entitled "An act to amend an act entitled 'An act to promote the safety of employés and travelers upon railroads, and to compel common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances,' " and subsequent proceedings of the Interstate Commerce Commission thereunder, and prior to the commission of the offense charged, occupied the field intended to be covered by the act of the Legislature to the exclusion of that act?
The defendant is a common carrier of interstate and intrastate commerce, and the evidence shows without conflict that during the period covered by the indictment it operated all parts of its railroad as a common carrier of interstate commerce, as also of intrastate commerce, and that all of its locomotives in road service in the state in the nighttime were at all times covered by the indictment operated and used in hauling interstate and intrastate freight and passengers. The Congress of the United States having the paramount right to legislate upon all subjects affecting interstate commerce, it of course follows, from the exclusive nature of its authority, that when it once enters that field all state legislation upon or regulation of that particular subject is ipso facto excluded or superseded. On the other hand, it is equally well settled that in the absence of legislation by Congress the states are not denied the exercise of their police power to secure safety in the physical operation of railroad trains within their territory, even though such trains are used in interstate commerce, and interstate commerce is thereby incidentally affected, so long as it is not directly burdened or interfered with. The mere grant of such a power to Congress did not imply a prohibition on the states to, exercise their power over the same subject within reasonable limitations.
The crucial test here, then, it will be observed, is: Had Congress so pre-empted or occupied the field as, to nullify or supersede the operation of the act of the Legislature? The question must be answered in the negative (Atlantic Coast Line R. R. Co. v. Georgia, 234 U.S. 280, 34 Sup. Ct. 829,58 L.Ed. 1312), unless that result is accomplished by the amendatory act of Congress of March 4, 1915, and proceedings of the Interstate Commerce Commission thereunder, to which we have referred. Sections 1 and 2 of that act (U.S. Comp. St. 1916, §§ 8639a, 8639b) are as follows:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that section two of the act entitled 'An act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto,' approved February 17, 1911, shall apply to and include the entire locomotive and tender and all parts and appurtenances thereof.
"Sec. 2. That the chief inspector and the two assistant chief inspectors, together with all the district inspectors, appointed under the act of February 17, 1911, shall inspect, and shall have the same powers and duties with respect to all the parts and appurtenances of the locomotive and tender that they now have with respect to the boiler of a locomotive and the appurtenances thereof, and the said act of February 17, 1911, shall apply to and include the entire locomotive and tender and all their parts with the same force and effect as it now applies to locomotive boilers and their appurtenances. That upon the passage of this act, all inspectors and applicants for the position of inspector shall be examined touching their qualifications and fitness with respect to the additional duties imposed by this act."
It was provided that the provisions of the act should not become effective for six months from its passage. Looking back to the original act, and reading into it the provisions of the amendatory act, section 2 provides that:
"From and after the 1st day of July, 1911, it shall be unlawful for any common carrier, its officers or agents, subject to this act, to use any locomotive engine propelled by steam power in moving interstate or foreign traffic, unless the 'entire locomotive and tender, and all parts and appurtenances thereto' are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all 'locomotives and tenders, and all parts and appurtenances thereto' shall be inspected from time to time in accordance with the provisions of this act, and be made able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for."
Section 3 (U.S. Comp. St. 1916, § 8632) provides for the appointment by the President, by and with the advice and consent of the Senate, of a chief inspector and two assistant chief inspectors of "locomotives and tenders, and all parts and appurtenances thereto," who shall have general superintendence of the inspectors thereinafter provided for, directing them in the duties thereby imposed upon them, and so that the requirements of the act, and the rules, regulations, and instructions made or given thereunder, are observed by the carriers subject thereto.
Section 6 (U.S. Comp. St. 1916, § 8635) requires each inspector to become familiar, as far as practicable, with the condition of "each locomotive and tender, and all parts and appurtenances thereto," ordinarily housed and repaired in his district, to make personal inspection of the entire locomotive and tender and all parts and appurtenances thereto under his care from time to time as may be necessary to fully carry out the provisions of the act. He shall see that the carriers make inspections in accordance with the rules and regulations established or approved by the interstate Commerce Commission, and that carriers repair the defects which such inspection discloses before the locomotive, or tender, or any part pertaining thereto, is again put in service. Whenever any district inspector shall, in the performance of his duty, find any locomotive, tender, or any part *Page 201 or appurtenance thereto, not conforming to the requirements of the law, or the rules and regulations established and approved, as therein stated, he shall notify the carrier in writing that the locomotive is not in serviceable condition, and thereafter such locomotive shall not be used until put in serviceable condition.
Section 9 (U.S. Comp. St. 1916, § 8638) provides that any carrier violating the provisions of the act, or any rule or regulation made under its provisions, or any lawful orders of any inspector, shall be liable to a penalty, etc.
Pursuant to the amendatory act of March 4, 1915, the chief inspector submitted to the Interstate Commerce Commission for approval rules and instructions for the inspection and testing of locomotives and tenders, all of which were, at a general session held October 11, 1915, approved by the Commission, with the exception of Rules 18, 29, and 31. Rule 18 is not material. Rules 29 and 31 are as follows:
"29. Lights — Locomotives, Used in RoadService. — Each locomotive used in road service between sunset and sunrise shall have a headlight which will enable persons with normal vision in the cab of the locomotive, under normal weather conditions, to see a dark object the size of a man for a distance of 1,000 feet or more ahead of the locomotive; and such headlights must be maintained in good condition.
"Locomotives used in road service, which are regularly required to run backward for any portion of their trip, except to pick up a detached portion of their trains, or in making terminal movements, shall have on their rear a headlight which will meet the foregoing requirements.
"When two or more locomotives are used in the same train, the leading locomotive only will be required to display a headlight."
"31. Locomotives used in Yard Service. — Each locomotive used in yard service between sunset and sunrise shall have two headlights, one located on the front of the locomotive, and one on the rear, each of which will enable persons with normal vision, in the cab of the locomotive, under normal weather conditions, to see a dark object the size of a man for a distance of 300 feet or more; and such headlights must be maintained in good condition."
Those rules were referred to in the order of the Commission in the following manner:
"Whereas, all of the rules prepared by the chief inspector having been agreed to by representatives of the railroad employés, and all except rules numbered 18, 29, and 31 having been agreed to by representatives of the carriers; and whereas, it appearing that the interests of all may be best served by the immediate promulgation of the rules which have been agreed to, thus avoiding the delay incident to the consideration of evidence and briefs with respect to the said rules numbered 18, 29, and 31, which will be acted on later, the said rules and instructions have been fully considered by the Commission: It is ordered," etc.,
— and were not specifically adopted by the Commission, it is conceded, until June 6, 1916, after the commission of the offense charged. It is insisted by the state that not, at least, until June 6th, did Congress, or the Commission, assume jurisdiction over the specific subject of headlights, and that until that time the state was free to act. It is quite true — "that the mere creation by Congress of the Interstate Commerce Commission, and the grant to it of a measure of control over interstate commerce, does not of itself, in the absence of specific action by the Commission, or by Congress itself, interfere with the authority of the states." Missouri Pac. R. R. Co. v. Larabee Flour Mills Co., 211 U.S. 612,29 Sup. Ct. 214, 53 L.Ed. 352; Missouri, K. T. R. Co. v. Harris, 234 U.S. 412, 34 Sup. Ct. 790, 58 L.Ed. 1377, L.R.A. 1915E, 942.
But:
"When Congress acts in such a way as to manifest its purpose to exercise its constitutional authority, the regulating power of the states ceased to exist." Erie R. Co. v. N.Y.,233 U.S. 671, 34 Sup. Ct. 756, 58 L.Ed. 1149, 52 L.R.A. (N.S.) 266, Ann. Cas. 1915D, 138.
In that case Congress had passed an act relating to the subject-matter there involved, but had postponed its operation for a period of one year, during which time it was insisted that the state was authorized to legislate on the same subject. In discussing the principle involved, the Supreme Court, referring to a similar contention made in the case of Northern P. R. Co. v. Washington, 222 U.S. 370, 32 Sup. Ct. 160,56 L.Ed. 237, said:
"We reversed the judgment on the ground that the view expressed was not 'compatible with the paramount power of Congress over interstate commerce,' and we considered it elementary that the police power of the state could only exist from the silence of Congress upon the subject, and ceased when Congress acted or manifested its purpose to call into play its exclusive power. It was further said that the mere fact of the enactment of the act of March 4, 1907 [34 Stat. 1415, c. 2939 (U.S. Comp. St. 1911, p. 1321)], was a manifestation of the will of Congress to bring the subject within its control, and to reason that because Congress chose to make its prohibitions take effect only after a year, it was intended to leave the subject to state power, was to cause the act of Congress to destroy itself. There was no conceivable reason, it was said, for postponing the prohibitions if it was contemplated that the state law should apply in the meantime. The reason for the postponement, it was pointed out, was to enable the railroads to meet the new conditions. The reasoning of the opinion and the decision oppose the contention of defendant in error, and of the Court of Appeals, that the state law and the federal law can stand together, because, as expressed by the Court of Appeals, 'the state has simply supplemented the action of the federal authorities,' and on account of special conditions prevailing within its limits has raised the limit of safety; and the form of the federal statute, although 'not expressly legalizing employment up to that limit, fairly seems to have invited and to have left the subject open for supplemental state legislation if necessary.' We realize the strength of these observations, but they put out of view, we think, the ground of decisions of the cases, and, indeed, the necessary condition of the supremacy of the congressional power. It is not that there may be division of the field of regulation, but an exclusive occupation of it when Congress manifests a purpose to enter it. Regulation is not intended to be a mere wanton exercise of power. It is a restriction upon the management of the railroads. It is induced by the public interest or safety and the Hours of Service Law of March 4, 1907, is the judgment of Congress of the extent of the restriction necessary. It admits of no supplement; it is the prescribed measure of what is necessary and sufficient for the public safety, and of the cost *Page 202 and burden which the railroad must endure to secure it."
And in the case of Southern R. Co. v. Railroad Commission,236 U.S. 439, 35 Sup. Ct. 304, 59 L.Ed. 661, it was said:
"Congress could pass the Safety Appliance Act [Act Cong. March 2, 1893, c. 196, 27 Stat. 531 (Comp. St. 1913, §§ 8605-8612)] only because of the fact that the equipment of cars moving on interstate roads was it regulation of interstate commerce. Under the Constitution, the nature of that power is such that, when exercised, it is exclusive, and ipso facto supersedes existing legislation on the same subject. Congress, of course, could have 'circumscribed its regulations' so as to occupy a limited field. * * * But, so far as it did legislate, the exclusive effect of the Safety Appliance Act did not relate merely to the details of the statute, and the penalties it imposed, but extended to the whole subject of equipping cars with appliances intended for the protection of employés. The states thereafter could not legislate so as to require greater, or less, or different, equipment; nor could they punish by imposing greater, or less, or different, penalties. For, as said in Prigg v. Com., 16 Pet. 618, 10 L.Ed. 1090: 'If Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state Legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. * * * The will of Congress upon the whole subject is as clearly established by what it had not declared as by what it has expressed.' Without, therefore, discussing the many cases sustaining the right of the states to legislate on subjects which, while not burdening, may yet incidentally affect, interstate commerce, it is sufficient here to say that Congress has so far occupied the field of legislation relating to the equipment of freight cars with safety appliances as to supersede existing and prevent further legislation on that subject. The principle is too well established to require argument. Its application may be seen in rulings in the closely analogous cases relating to state penalties for failing to furnish cars, and to state penalties for retaining employés at work on cars beyond the time allowed by the Hours of Service Law."
"When the question is whether a federal act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power." Savage v. Jones, 225 U.S. 501,32 Sup. Ct. 715, 56 L.Ed. 1182.
In C., R.I. P. Ry. v. Hardwick Elevator, 226 U.S. on page 435, 33 Sup. Ct. on page 175, 57 L.Ed. 284, 46 L.R.A. (N.S.) 203, the court, speaking through Mr. Chief Justice White, uses the following pertinent language:
"As legislation concerning the delivery of cars for the carriage of interstate traffic was clearly a matter of interstate commerce regulation, even if such subject was embraced within that class of powers concerning which the state had a right to exert its authority in the absence of legislation by Congress, it must follow, in consequence of the action of Congress to which we have referred, that the power of the state over the subject-matter ceased to exist from the moment that Congress exerted its paramount and all-embracing authority over the subject. We say this because the elementary and long-settled doctrine is that there can be no divided authority over interstate commerce, and that the regulations of Congress on that subject are supreme. It results, therefore, that in a case where, from the particular nature of certain subjects, the state may exert authority until Congress acts, under the assumption that Congress, by inaction, has tacitly authorized it to do so, action by Congress destroys the possibility of such assumption, since such action, when exerted, covers the whole field, and renders the state impotent to deal with a subject over which it had no inherent, but only permissive power. Southern R. Co. v. Reid, 222 U.S. 434,32 Sup. Ct. 140, 56 L.Ed. 257."
While courts will adopt any reasonable construction of which a statute is susceptible, in order to avoid striking it down as unconstitutional, yet, when we come to consider whether or not two powers — one of superior and the other of inferior jurisdiction — occupy the same field, it would seem proper that any reasonable doubt, if such there is, should be resolved in favor of the superior jurisdiction. There will be found running through the decisions of the state courts a growing tendency to yield such matters in favor of the superior jurisdiction. Western Union Tel. Co. v. Hawkins, 198 Ala. 682,73 So. 973; Central of Ga. Ry. Co. v. Groesbeck Armstrong,175 Ala. 189, 57 So. 380.
Viewing the amendatory act of Congress of March 4, 1915, and the objects obviously designed to be attained, namely, the safety of interstate commerce, and of those who are employed in its movement, we cannot escape the conclusion that Congress had thereby so manifested a clear intent to occupy the field with respect to the entire equipment of locomotives engaged in interstate commerce, and every part thereof, as to exclude the right of the state, and that upon its approval, and irrespective of what may have been done by the Commission thereunder, it was in effect a caveat or warning to the states. The mere fact that the Commission had not made any specific rule with respect to headlights on locomotives, of the entire equipment of which it had assumed general supervision — its silence on the subject — may well be taken as an indication that existing conditions, up to the time it did promulgate such rules under and by virtue of the authority conferred by said act, were deemed by the Commission satisfactory. That was merely one of the details of a broad and general subject, which details seem to have been given attention after proper tests and investigation had been made. See orders and rules promulgated by the Interstate Commerce Commission on June 6 and December 26, 1916, relating to lights required to be used on locomotives.
In the very recent case of Vandalia R. Co. *Page 203 v. Public Service Commission of Indiana, 242 U.S. 255,37 Sup. Ct. 93, 61 L.Ed. 276 (opinion December 11, 1916), a somewhat similar act of the state of Indiana was under consideration; but the Supreme Court held that it would not then pass upon the effect of the provisions of the act of Congress of 1915, "for the reason that the decision of the Supreme Court of Indiana, refusing an injunction to restrain the enforcement of the state Commission's order, was rendered and judgment thereon entered before the passage by Congress of the act referred to." The significant suggestion, however, is there made by the court that:
"If, however, by virtue of the provisions of the act of 1915, or of any action heretofore or hereafter taken by the Interstate Commerce Commission under it, plaintiff in error is entitled to an injunction against the further enforcement of the order of the state Commission, that right may be asserted in another action, and will not be prejudiced by our present decision."
The result is that, entertaining the views above expressed, it becomes our duty to certify the question of the validity of the statute under consideration to the Supreme Court (section 1 of act approved April 18, 1911, 1 Ala. App. p. 10).