Fleming v. Richardson

I find myself unable to join in the majority opinion. In my judgment it overlooks the real litigated issue herein, and that is whether the United States Safety Appliance Acts so invaded the field of the regulation of the construction and maintenance of railway cabooses as to invalidate any state regulations upon the same subject by the states.

The parties by pleading and brief and argument have set forth the matters in issue and I think that this court should confine its decision to such issue.

In this dissent I shall endeavor to set forth such issues. I have made brief citations of cases which in my opinion clearly control. Many others might be cited but as they simply bear out and support the ones cited I will not set them out. I think that the majority opinion will have the effect of adding confusion to a situation which calls for clarification.

This controversy grows out of an order made on December 20, 1944, by the Iowa State Commerce Commission (hereinafter referred to as the commission), directed to Joseph B. *Page 858 Fleming and Aaron Colnon, Trustees of the Estate of the Chicago, Rock Island, and Pacific Railway Company (hereinafter referred to as the railroad), requiring the railroad to desist from the use of caboose cars not having an outside platform across each end thereof, on its lines in Iowa. This order was issued upon a complaint filed with the commission on November 30, 1940, by a branch of the railroad brotherhoods, wherein it was charged that the railroad was operating, over some of its lines in Iowa, one-platform cabooses, in violation of section 7972, Code of Iowa, 1939 (section 477.27, Code, 1946), and asking the commission to enforce the provisions of such section.

On December 20, 1944, following a hearing, said commission ordered that the railroad discontinue the use of one-platform cabooses then in use on lines of its railroad in Iowa.

On December 31, 1944, the railroad, designating itself as plaintiff, appealed to the district court of Polk County, Iowa, from the ruling and order of the commission pursuant to the provisions of section 7887, Code of Iowa, 1939 (section 474.28, Code, 1946), and petitioned that said order be vacated and set aside, setting forth as grounds thereof that at the hearing before the commission its order requiring the discontinuance of one-platform cabooses on its lines in Iowa was in excess of its power and authority and that such question was wholly cognizable either by the Congress of the United States or the Interstate Commerce Commission created by an act of Congress, and that as said Interstate Commerce Commission had specifically taken control of the subject matter of cabooses, platforms, and equipment, by virtue of its delegated authority to regulate the matter of safety appliances on cars and trains engaged in interstate commerce, and by reason of the assumptive jurisdiction of said subject matter the State of Iowa, through its commission, had no right or authority to act in such field.

Following a hearing upon such petition, a decree was entered in said court on July 11, 1945, wherein the ruling and order of the commission of December 20, 1944, was set aside and held to be of no force and effect with regard to the use of one-platform cabooses used in the furtherance of *Page 859 interstate commerce in Iowa and, further that the order was valid, lawful, and enforceable in respect to purely intrastate commerce or transportation in Iowa. Both parties have appealed.

On the appeal from the decree of the district court adverse to the commission, this dissent will refer to the commission as the appellant and to the railroad as the appellee. On the appeal of the railroad from that part of the decree of the district court sustaining the commission the railroad will be referred to as the cross-appellant. I will first consider the appeal by the commission.

I. The facts in the case are not in dispute. They appear from the stipulation of the parties and from the uncontroverted pleadings. Some question is raised as to the competency of evidence offered and particularly to a letter introduced by appellant and purporting to have emanated from the Bureau of Safety of the Interstate Commerce Commission and relating to safety appliances upon cabooses.

The appellant commission based its right to issue the order appealed from by reason of the provisions of section 7972, Code of Iowa, 1939 (section 477.27, Code of 1946), which section, so far as is material herein, provides as follows:

"It shall be unlawful, except as otherwise provided in this chapter, for any such common carrier by railroad to use on its lines any caboose car or other car used for like purposes, unless such caboose or other car shall be at least twenty-four feet in length, exclusive of the platform, and equipped with two four-wheel trucks, and shall be provided with a door in each end thereof and an outside platform across each end of said car; each platform shall not be less than eighteen inches in width and shall be equipped with proper guard rails, and with grab irons, hand brakes, and steps for the safety of persons getting on and off said car; said steps shall be equipped with a suitable rod, board, or other guard at each end and at the back thereof, properly designed to prevent slipping from said step."

Under the stipulated facts, the appellee railroad on November 30, 1940, and up to the time of the hearing, had in *Page 860 use on some of its lines in Iowa, cabooses with but one platform thereon. The appellee justified such use by reason of the National Safety Appliance Act of the Congress of the United States, as implemented by the orders of the Interstate Commerce Commission made pursuant to the authority delegated to it by the United States Congress, claiming that thereby the United States Government had occupied the field of regulation respecting the standards of safety equipment on caboose cars and that the state of Iowa had no right or authority to attempt to regulate said matters.

The trial court, in referring to the interstate business of the appellee, held that the decisions of the Supreme Court of the United States affirmatively showed that the subject of caboose platforms had been taken over exclusively by the Interstate Commerce Commission under authority of an Act of Congress, and, such being the case, the states cannot add to or subtract anything therefrom.

In essence appellant's claim for reversal is based upon two propositions:

(1) That the trial court erred in holding that a platform on a caboose was a safety appliance or equipment and was not a feature of construction; and further erred

(2) In holding that the Interstate Commerce Commission by its regulations had invaded the field of caboose construction with regard to platforms and that consequently the state of Iowa had no right to legislate in that field.

As these two propositions are more or less related and are interdependent we think they may be considered together.

Counsel for appellant in brief states:

"It is admitted by the parties that in the event that the National Safety Appliance Acts have invaded the field and are applicable to the issues involved in this case, then Section 7972, Code, 1939, is invalid."

Further in brief counsel for appellant commission makes a rather significant statement:

"A caboose platform is not a safety appliance and the Iowa statute should be upheld." *Page 861

That the Interstate Commerce Commission has entered the field in regard to cabooses and safety appliances thereon appears from the regulations set forth in an exhibit, "United States Safety Appliances," Fourteenth Edition, 1935, and issued by the Mechanical Division of the Operation and Maintenance Department of the Association of American Railroads.

An examination of this exhibit shows detailed regulations, and drawings regarding cabooses. It deals with cabooses with platforms and those without platforms. These regulations go into detail as to doors, hand brakes, running boards, ladders, steps, roof handholds, cupola handholds, end-platform handholds, and caboose-platform steps. Reference is made to the location of a brake shaft on caboose cars with platforms. Necessarily there is some difference in regard to the appliances required on caboose cars without platforms.

It can readily be seen, following a study of such regulations and the appliance requirements and the details of construction, the fastenings and location, that they were formulated to safeguard employees engaged in the operation of the cars.

The order of the Interstate Commerce Commission was made in 1911 and was pursuant to the Safety Appliance Acts of 1893 and 1910, and therein was fixed the standard of construction of caboose cars. The Act of Congress clearly and expressly delegated to the Interstate Commerce Commission the power and authority to provide standards in the construction of cabooses. The requirements promulgated pursuant to such clearly and distinctly relate to safety and safety appliances.

In argument counsel for appellant commission asserts that the authority delegated to or to be assumed by the Interstate Commerce Commission under the National Safety Appliance Acts relates to the number of, dimensions, and location of safety appliances that are used on certain cars, including cabooses.

In referring to section 7972 appellant states:

"The reason for this enactment was to provide for the safety of passengers and trainmen." *Page 862

We quote a further statement from the brief of appellant:

"When these cabooses are placed at the end of the train with the platform next to the car ahead an immediate hazard arises for both passengers and trainmen. The passenger may walk out of the rear door and fall to the rails, while the brakeman, conductor and switchman would be subject to the hazard of all of them trying to swing on a platform which was not placed at the end of the car and would be handicapped in their efforts with the liability of falling and other accidents. So the purpose of the statute was reasonable. The National Safety Appliance Acts have the same purpose but only so far as safety appliances, their number and location on the caboose itself is concerned."

While section 7972 is not by express terms designated as a safety measure, yet the clear and unmistakable language thereof can have no other purpose. It refers to brakes, trucks, platforms, the width thereof and the guard rails thereon, grab irons, steps for safety of persons getting on and off the caboose, which steps "shall be equipped with a suitable rod, board, or other guard at each end and at the back thereof, properly designed to prevent slipping from said step."

The order of the appellant commission seems to be based upon the premise that the United States Safety Appliance Acts and the orders of the Interstate Commerce Commission do not exclusively occupy the field to the extent that the provisions of sections 7972 and 7973, Code of Iowa, 1939, have been superseded or nullified. (Italics supplied.)

It is readily apparent following a comparison of regulations of the Interstate Commerce Commission and those of the state as set forth in section 7972, Code of Iowa, 1939, that to a very considerable extent they cover the same field. Such being the case, those promulgated by the Interstate Commerce Commission must prevail.

In addition to the statute, section 7972, appellant, in support of the position taken, relies upon a letter (Exhibit 6) dated August 19, 1944, and signed by S.N. Mills, under the designation of Director of the Bureau of Safety of the Interstate Commerce Commission, and directed to Robert G. Janss, *Page 863 Assistant Commerce Counsel of Iowa. Said letter is as follows:

"You are correct in your understanding that under the safety appliance acts the Commission exercises supervision only in respect to the application of safety appliances, and not in respect to features of construction of the car itself as platforms or blind ends."

When this letter was offered by appellant it was objected to by appellee on various grounds, among which were that the identity and authority of the purported writer were not established by proof; that it was self-serving; that it did not state facts but only legal conclusions. While the court did not rule upon the objections it did state that it gave it no consideration.

Taking into consideration the subject matter involved, we think that the letter was not admissible and was not evidence of any order or directive of the Interstate Commerce Commission and the objections thereto should be sustained.

It seems to me that both the Federal Safety Appliance Acts and that of the state of Iowa as set forth in section 7972 relate to safety appliances used on or about cabooses. Appellant argues throughout that a platform on a caboose is merely a feature of construction. It seems to me that the designation of brakes, steps, handholds, etc., are features of construction and at the same time are safety appliances. It seems unreasonable and illogical to say that a platform at one or both ends of a caboose is simply a feature of construction and is not a safety appliance. From a platform a door leads into the caboose. Standing on a platform one would be in a position of safety. Platforms have steps, guards, rails, and handholds. It seems to me that many things about a caboose may be features of construction and at the same time appliances of safety.

It will thus be seen that the specific claim of appellant is that as the regulations of the Interstate Commerce Commission regarding safety appliances upon cabooses do not deal with one-platform cabooses that field was left open for state *Page 864 legislation, and that section 7972, Code of Iowa, 1939, did not conflict with the regulations of the Interstate Commerce Commission.

It would seem difficult to harmonize this claim with the further claim of appellant that the platform of a one-platform caboose is simply a feature of construction, all in the face of the regulations of the Interstate Commerce Commission wherein two-platform cabooses are dealt with.

It would seem that the regulations of the Interstate Commerce Commission viewed platforms as safety measures. Such regulations located the brake shaft "on caboose cars with platforms." Such end platforms required four handholds; steps leading to caboose platforms are provided for. Without such platform there would be no place to set the brake shaft or fasten the handholds or set the steps.

The same regulations clearly contemplate end doors to cabooses where there are end platforms and side doors in the absence of end platforms. This is shown by the requirements of the handholds which are used in boarding and alighting from the caboose.

Heretofore I have set out the concession of appellant, which, in effect, is that if the National Safety Act has invaded the field and its regulations are applicable to the issues, then section 7972, Code of Iowa, 1939, is invalid. It can hardly be denied that the act has invaded the field of cabooses in that it made certain requirements concerning the same, all being in line with the element of safety of employees. Appellant admits that the distinction which is sought to be drawn in this case is a fine one.

In short, appellant's claim, in essence, is that a platform on a caboose is not a safety appliance within the purview of the Safety Appliance Act. That act does not define the term. However, the title or preamble to the act may throw some light upon that matter. We quote:

"An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving wheel brakes, and for other purposes." (Italics supplied.) *Page 865

The earliest Safety Appliance Act was in 1893 and affected cars to be used in interstate commerce. In 1903 it was amended and was extended to all cars used upon any railroad which is a highway of interstate commerce. Southern R. Co. v. United States,222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72. These acts impose an absolute duty upon an employer and prescribe penal sanctions for breach. Tipton v. Atchison, T. S.F. Ry. Co., 298 U.S. 141, 56 S. Ct. 715,80 L. Ed. 1091, 104 A.L.R. 831. The Federal Safety Appliance Act is remedial to protect employees and the public from injuries because of defective appliances and to safeguard interstate commerce itself from obstructions and injury due to defective appliances upon locomotives and cars used on the highways of interstate commerce, although their individual use may be intrastate. See, also, Swinson v. Chicago, St. P., M. O.R. Co.,294 U.S. 529, 55 S. Ct. 517, 79 L. Ed. 1041, 96 A.L.R. 1136.

It was pursuant to this act and its subsequent amendments that the present regulations of the Interstate Commerce Commission were promulgated. Safety of employees and travelers was the fundamental purpose of the act. The various courts of the country, including the Supreme Court of the United States, have so regarded it in construing and applying its provisions. "Safe" or "safety" within a safe-place statute, means such freedom from danger to life, health, safety, or welfare of employees as nature and place of employment will reasonably permit. Baker v. Janesville Traction Co., 204 Wis. 452, 234 N.W. 912; Kelly v. Kneeland-McLurg Lumber Co., 161 Wis. 158, 152 N.W. 858; Olson v. Whitney Bros. Co., 160 Wis. 606, 150 N.W. 959; Hollister v. Kingsbury, 129 Cal. App. 420, 18 P.2d 1006; Maryland Casualty Co. v. Thomas Furnace Co., 185 Wis. 98, 201 N.W. 263. The term when used in connection with the operation of railroad transportation quite uniformly has reference to the perils and hazards incident to such operation. Webster defines "safety" as the "condition or state of being safe; freedom from danger or hazard; exemption from hurt, injury, or loss."

"Safety appliances" include all things which will secure safety and this refers to all physical conditions existing. Cook v. Big Muddy-Carterville Mining Co., 249 Ill. 41, *Page 866 94 N.E. 90. A platform on top of an ordinary freight boxcar was held to be a safe place for a car repairer, under the Federal Safety Appliance Acts. Borde v. New Orleans G.N.R. Co., La. App.,140 So. 810. "Safety gates" at railroad crossings are something more than warning signals. They are physical hindrances in the way of those seeking to cross railroad tracks. West Jersey S.S.R. Co. v. City of Bridgeton, 64 N.J. Law 189, 44 A. 848. A bridge over railroad tracks, when necessary to make a crossing safe for public use, is a "safety device." State ex rel. City of Minneapolis v. St. Paul, M. M. Ry. Co., 98 Minn. 380,108 N.W. 261, 28 L.R.A., N.S., 298, 120 Am. St. Rep. 581, 8 Ann. Cas. 1047. Anything which is provided by the employer in the operation of a machine, the use of which would reduce hazard to the employee from the machine operation, is a safety appliance. Herman v. Aetna Casualty Surety Co., 71 Ga. App. 464,31 S.E.2d 100.

I am unable to understand why a platform on a caboose is not a safety appliance even though it may not be specifically so designated by the regulations of the Interstate Commerce Commission. There always will be certain hazards and risks incident to boarding or alighting from railroad cars. Quite frequently employees board a caboose while the train is in motion, and this is true in alighting therefrom. A platform furnishes a secure place upon which to stand. It has side steps, rails, and handholds.

While it may be a feature of construction the same as doors, floors, and windows of a caboose, yet at the same time it is a safety appliance when used in connection with the operation. To hold otherwise would be to disregard something which is a matter of almost universal understanding on the part of those who make use of it.

II. The various Safety Appliance Acts were largely brought about to protect employees and travelers from perils and hazards incident to travel and operation of railroads and were enacted in the exercise of the police power of the state. The primary purpose of police power is to protect the public welfare and permit the enactment of laws essential to the public safety, health, and morals. To justify the exercise of such power it must appear that the interests of the public so require *Page 867 and that the means are reasonably necessary for the accomplishment of such purpose. Lawton v. Steele, 152 U.S. 133,14 S. Ct. 499, 38 L. Ed. 385; State ex rel. Mitchell v. Thompson's School of Beauty Culture, 226 Iowa 556, 285 N.W. 133.

"The police power is very broad, and so elastic that no comprehensive definition has ever been attempted. Of necessity, this must be so, for it must ever respond to such social conditions `as an advancing civilization of a highly complex character requires.' Anything which legitimately tends to promote public morals, health, or security is within its scope * * *." State v. Armour Packing Co., 124 Iowa 323, 330, 100 N.W. 59, 61, 2 Ann. Cas. 448.

As to police powers generally, see 11 Am. Jur. 966. On page 989 of said volume 11, section 257, it is stated that the exercise of the police power by a state is beyond interference by the Federal Government except by virtue of some authority derived from the Constitution of the United States. All that the Federal Government can do ordinarily is to see that the states do not, in attempting to exercise the police power, invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has vested in the National Government, or deprive a citizen of rights guaranteed to him by the Federal Constitution.

The various United States Safety Appliance Acts are essentially police regulations, enacted for the purpose of protecting and safeguarding the employees of railroads and the traveling public from injury.

It seems quite evident that section 7972, Code of Iowa, 1939, is likewise a safety measure and was enacted pursuant to the police power of the state of Iowa and for the same purpose as the United States Safety Appliance Act.

In discussing the matter of police power, the court, in Jacobson v. Massachusetts, 197 U.S. 11, 25, 25 S. Ct. 358, 361,49 L. Ed. 643, 3 Ann. Cas. 765, said:

"According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations *Page 868 established directly by legislative enactment as will protect the public health and the public safety."

This court has frequently had for consideration the police powers of a sovereignty. See Loftus v. Department of Agriculture,211 Iowa 566, 232 N.W. 412 [appeal dismissed 283 U.S. 809,51 S. Ct. 647, 75 L. Ed. 1427]; State v. Erle, 210 Iowa 974,232 N.W. 279, 72 A.L.R. 137.

I will follow with a citation and brief discussion of various decisions which I think sustain the holding of the trial court wherein the order was made vacating the order of appellant commission.

In the case of Southern R. Co. v. Railroad Commission of Indiana, 236 U.S. 439, 446, 35 S. Ct. 304, 305, 59 L. Ed. 661, there was involved a statute of the state of Indiana which required handholds on sides or ends of cars, while the federal regulation required handholds be placed both on the sides and ends of cars. The case holds that in the field of interstate commerce the jurisdiction of the Federal Government is supreme and that where it or its instrumentalities created under its authority have entered that field it renders state legislation in that field invalid. The case further holds that an intrastate railroad comes within the purview of the Safety Appliance Act.

I think the holding in that case supports and sustains the holding of the trial court of Polk county. I quote the following excerpt from the decision in the Southern case as follows:

"Such is the case here where Congress, in the exercise of its power to regulate interstate commerce, has legislated as to the appliances with which certain instrumentalities of that commerce must be furnished in order to secure the safety of employés. Until Congress entered that field the States could legislate as to equipment in such manner as to incidentally affect without burdening interstate commerce. But Congress could pass the Safety Appliance Act only because of the fact that the equipment of cars moving on interstate roads was a regulation of interstate commerce. Under the Constitution the nature of that power is such that when exercised it is exclusive, *Page 869 and ipso facto, supersedes existing state legislation on the same subject. Congress of course could have `circumscribed its regulations' so as to occupy a limited field. Savage v. Jones,225 U.S. 501, 533 [56 L. Ed. 1182, 1194, 32 Sup. Ct. Rep. 715]. Atlantic Line v. Georgia, 234 U.S. 280, 293 [58 L. Ed. 1312,1318, 34 S. Ct. 829]. But so far as it did legislate, the exclusive effect of the Safety Appliance Act did not relate merely to 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. Commonwealth of Pennsylvania, 16 Pet. 539, 617 [10 L. Ed. 1060]: `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 farther 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.'"

In the case of Erie Railroad v. People of the State of New York, 233 U.S. 671, 34 S. Ct. 756, 58 L. Ed. 1149, 52 L.R.A., N.S., 266, there was involved the question as to the right of the state to regulate the working hours of railroad employees. The state statute penalized a carrier which worked its employees more than eight hours per day; the federal statute penalized the carrier if the employee worked more than nine hours per day. The court (United States) held that while there was a conflict between the state and federal statutes the latter controlled and that those of the state were invalid. *Page 870

It seems to me that the identical question involved in the present case has been ruled upon in the case of State ex inf. Haley v. Missouri Pac. R. Co., 323 Mo. 653, 19 S.W.2d 879, 882. In 1924 the legislature of that state passed a law requiring every caboose car operated upon any Missouri railroad to have outside platforms across each end of said car not less than thirty inches wide. The railroad was prosecuted, convicted, and fined for violation of such statute. The railroad contended that the state law was inapplicable because the field of regulation had been taken over by the United States Safety Appliance Act and the regulations of the Interstate Commerce Commission. Upon appeal the Supreme Court of Missouri sustained the railroad and reversed the judgment. In so doing, that court said:

"The statute in issue here prohibits `the use of any caboosecars in any commerce, traffic, transportation or intercourse between two or more points or places wholly within this State,' or on `any railroad or railway in whole or in part within thisState,' unless said caboose cars shall be constructed and equipped as therein prescribed; and said specifications include, among other things, end platforms equipped with guardrails, grabirons, and steps with riser and skirt boards at the sides andback thereof. The Interstate Commerce Commission's order of March 13, 1911, made in pursuance of the Safety Appliance Acts of 1893 and 1910, fixed the standard of construction and equipment of `Caboose Cars With Platforms' and of `Caboose Cars Without Platforms.' And it has been held that the Safety Appliance Acts of Congress are `intended to embrace all locomotives, cars and similar vehicles used on any railroad which is a highway ofinterstate commerce.' (Our italics.) [Southern Ry. Co. v. United States, 222 U.S. l. c. 26]. Therefore, the defendant railroad company, being engaged in interstate commerce, cannot be held to account for its failure to comply with legislation of this State relating to the construction and equipment of caboose cars. The statute in question does not discriminate between caboose cars used by railroad companies engaged exclusively in intrastate commerce and caboose cars used by railroad companies engaged in both intrastate and *Page 871 interstate commerce. In undertaking to provide how caboose cars used by railroad companies engaged in interstate commerce shall be constructed and equipped, the State of Missouri has invaded a field of regulation over which Congress has exercised its exclusive control; and, in undertaking to prohibit the use ofcaboose cars without platforms by railroad companies engaged in interstate commerce, the State of Missouri enacted a statute which is in direct conflict with the Safety Appliance Acts of Congress and the regulations of the Interstate Commerce Commission made in pursuance thereof, the use of caboose cars without platforms being expressly authorized thereby. As we have already indicated, this statute is wholly ineffectual as to the construction and equipment of caboose cars used by railroad companies engaged in interstate commerce, because Congress has taken over that field of regulation." (Italics supplied.)

It seems to us that the holding of the Missouri court has direct application to the issues involved in the instant case.

In the case of Pennsylvania Railroad Co. v. Public Service Commission of Pennsylvania, 250 U.S. 566, 569, 40 S. Ct. 36, 37,63 L. Ed. 1142, there was involved a Pennsylvania statute which required the last car of each train to be equipped with a platform thirty inches in width, with guard rails and steps. The railroad ran trains consisting solely of mail and express cars which did not comply with this statute. Upon appeal the case was reversed. From the opinion, written by Justice Holmes, I quote:

"But when the United States has exercised its exclusive powers over interstate commerce so far as to take possession of the field, the States no more can supplement its requirements than they can annul them. Southern Ry. Co. v. Railroad Commission of Indiana, 236 U.S. 439, 446 [59 L. Ed. 661, 665]. Charleston Western Carolina Ry. Co. v. Varnville Furniture Co.,237 U.S. 597, 604 [59 L. Ed. 1137, 1140]. New York Central R.R. Co. v. Winfield, 244 U.S. 147 [61 L. Ed. 1045]. In the present instance the rules for the construction of mail cars, admitted to be valid, not only exclude the wide platform but provide an equipment for them when *Page 872 used as end cars. The Safety Appliance Act with its careful requirements for the safety of the men was followed by most elaborate regulations issued by the Interstate Commerce Commission which include three large pages of prescriptions for `Caboose Cars without Platforms.' Caboose cars constantly are used as end cars and these pages like the Post Office order as to mail cars recognize the lawfulness of an end car such as the Pennsylvania statute forbids.

"The question whether Congress and its commissions acting under it have so far exercised the exclusive jurisdiction that belongs to it as to exclude the State, must be answered by a judgment upon the particular case. The subject-matter in this instance is peculiarly one that calls for uniform law and in our opinion regulation by the paramount authority has gone so far that the statute of Pennsylvania cannot impose the additional obligation in issue here. The Interstate Commerce Commission is continually on the alert, and if the Pennsylvania law represents a real necessity, no doubt will take or recommend steps to meet the need."

It seems to me that the question involved was passed upon by our highest court in Napier v. Atlantic Coastline R. Co. and Chicago Northwestern R.R. Co. v. Railroad Commission,272 U.S. 605, 612, 47 S. Ct. 207, 210, 71 L. Ed. 432, in which it passed upon state legislation in Georgia and an order of the Wisconsin Railroad Commission dealing with certain equipment upon locomotives operated in such respective states. The ultimate question was, Since Congress had occupied the field of regulation, were the state statutes inoperative? In ruling against the contentions of the two states, the court, speaking through Justice Brandeis, said:

"The federal and the state statutes are directed to the same subject — the equipment of locomotives. They operate upon the same object. It is suggested that the power delegated to the Commission has been exerted only in respect to minor changes or additions. But this, if true, is not of legal significance. It is also urged that, even if the Commission has power to prescribe an automatic fire-box door and a cab curtain, it has not done so; and that it has made no other requirement *Page 873 inconsistent with the state legislation. This, also, if true, is without legal significance. The fact that the Commission has notseen fit to exercise its authority to the full extent conferred,has no bearing upon the construction of the act delegating thepower. We hold that state legislation is precluded, because the Boiler Inspection Act, as we construe it, was intended to occupy the field. The broad scope of the authority conferred upon the Commission leads to that conclusion. Because the standard set by the Commission must prevail, requirements by the States are precluded, however commendable or however different their purpose. Compare Louisville Nashville R. Co. v. State, 16 Ala. App. 199 [76 So. 505]; Whish v. Public Service Commission,205 A.D. 756 [200 N.Y. Supp. 282], 240 N.Y. 677 [148 N.E. 755]; Staten Island Rapid Transit Co. v. Public Service Commission, 16 F.2d 313. [Italics supplied.]

"If the protection now afforded by the Commission's rules is deemed inadequate, application for relief must be made to it. The Commission's power is ample. Obviously, the rules to be prescribed for this purpose need not be uniform throughout the United States; or at all seasons; or for all classes of service."

While the appellant commission has cited various cases to sustain its claims, yet it seems to base its main reliance upon the case of the Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 4, 63 S. Ct. 420, 422,87 L. Ed. 571. I think that case is readily distinguishable from the present case. In that case the Illinois commission required the Terminal Association to install cabooses on trains engaged in both interstate and intrastate traffic. Its requirement was upheld by the Supreme Court of Illinois and appeal was taken to the Supreme Court of the United States. In the appeal it was urged that the Illinois Commerce Commission had no jurisdiction to make an order affecting interstate commerce. This claim was denied, the court holding that the record failed to show that the Interstate Commerce Commission had entered the controverted field and made any regulations as to such cabooses. In doing so, it was stated: *Page 874

"* * * it is unnecessary to consider on this occasion and without the participation of the Interstate Commerce Commission what may be the extent of its power under these Acts [Safety Appliance Acts]. If it should in the exercise of granted power determine whether appellant [Terminal Railroad Association] must provide cabooses, the State would be powerless to gainsay it."

The order made by the Illinois Commerce Commission was sustained by the Illinois Supreme Court as "obviously promulgated to protect the lives and health of citizens of this State engaged in appellee's business within the State," and as not imposing an unlawful burden upon interstate commerce.

The regulation promulgated by the Illinois Commerce Commission was obviously under the police powers of the state to protect the lives and health of its citizens.

Summed up, the case holds that a state may make necessary and reasonable orders in the field of interstate commerce where the same has not been taken over by the Federal Government or its agencies. When the Federal Government or an agency created thereunder invades the field the state cannot add to, modify, or supplement any directives or orders promulgated by the federal authority. It holds that the state may enter such field in the event the higher authority has kept out of such field.

In the Terminal case, the supreme court, in discussing the issues, stated:

"We must decide the question of state power in this case in the absence of any Act of Congress that conflicts with the order [the order of the Illinois Railroad Commission] or may be said to occupy its field."

Inasmuch as there was no Act of Congress which conflicted with the action of the Illinois commission its orders were allowed to stand. I fail to see wherein this case supports the contention of appellant commission.

I have heretofore quoted from the language of the Supreme Court of the United States upon the subject of the *Page 875 jurisdiction of the Federal Government in matters of interstate commerce, and from the case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. (U.S.) 539, 10 L. Ed. 1060, and I need not repeat such quotation. In that case the decision was by the eminent jurist, Story, and therein he set forth some of the limitations and restrictions upon the power of Congress to legislate in such cases. So far as I have been able to determine, the decision in that case has never been overruled or modified by our highest court. It seems to me that it has application in the present case.

The Act of Congress gave to the Interstate Commerce Commission power and authority to make certain regulations, limited by the outline of the purposes of the act. The majority opinion seems to be based upon the premise that the Interstate Commerce Commission did not enter the field unless they made detailed and specific rules; that the failure to make such detailed and specific rules in regard to cabooses with but one platform left that field open to state regulations. It is difficult to harmonize this claim with the holding of the Supreme Court of the United States in the cases heretofore cited: Southern Railway v. United States, supra; Southern Railway v. Railroad Commission of Indiana, supra. Note the language of this cited case: "Under the Constitution the nature of that power is such that when exercised it is exclusive, and ipso facto, supersedes existing state legislation on the same subject." 236 U.S. 439, 446, 35 S. Ct. 304, 305, 59 L. Ed. 661. See, also, State ex inf. Haley v. Missouri Pac. Ry. Co., supra; Pennsylvania R.R. Co. v. Public Service Commission of Pennsylvania, supra. (I commend a careful study of this case by the justices who have joined in the majority opinion.) The setting out in the majority opinion of long involved discussion adds nothing to a solution of the real question.

The appellant commission concedes that in the event the National Safety Appliance Acts have invaded the field, then the state has no right to legislate concerning the matters in issue.

The Act of Congress creating the Interstate Commerce Commission related to railroads, tracks, engines, and rolling *Page 876 stock. Certainly a caboose is a part of the rolling stock of a railroad. The commission issued elaborate and detailed regulations "for all classes of cars and locomotives." As before set forth, these regulations relate to cabooses with two platforms and those with one. It seems difficult to harmonize such with the long and involved discussion of the majority opinion that the narrow field between no platform and two platforms had been left open to state regulation. I do not find that the cases above cited and quoted from have ever been criticised or overruled and the majority opinion, in a wilderness of citations, seems for the most part to have overlooked them. I think that the cited case of State ex inf. Haley v. Missouri Pac. Ry. Co., 323 Mo. 653, 19 S.W.2d 879, is a decision which cannot be overlooked. It is absolutely on "all fours" with the present case.

I will next consider the appeal of plaintiff, heretofore referred to as the cross-appellant. This cross-appeal is based upon the following finding and conclusion of the trial court:

"Insofar as the order of the Commerce Commission of the State of Iowa is confined to trains engaged exclusively in intrastate commerce it is the finding and conclusion of this court that under the law, that is a legal and valid exercise of power by the state of Iowa being exercised under the rules and orders of the Commerce Commission of the State of Iowa, and is a valid and enforceable order."

Later the trial court filed a decree in harmony with such finding and conclusion.

This ruling of the trial court, under the record herein, cannot be sustained. I think that the question involved was squarely passed upon by the Supreme Court of the United States in passing upon the National Safety Appliance Acts. That court has held that such acts are applicable to all operations of an interstate carrier by railroad regardless of whether these operations were interstate or intrastate.

In support of the foregoing, I desire to quote the language of the headnotes in the case of Southern R. Co. v. United States, supra, 222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72, as follows: *Page 877

"Congress had the power, under the commerce clause of the Federal Constitution, to require, as it did in the safety-appliance act * * * that all locomotives, cars, and similar vehicles used on any railway engaged in interstate commerce, shall be equipped with designated safety appliances, regardless of whether such vehicles are used in moving intrastate or interstate traffic." [32 S. Ct. 2, headnote 2.]

Further in that same case we find the following:

"Cars used in moving intrastate traffic on a railway which is a highway of interstate commerce are comprehended by the provisions of the safety-appliance act * * * declaring, inter alia, that its provisions and requirements shall `apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce.'" [32 S. Ct. 2, headnote 1.]

See, also, Swinson v. Chicago, St. P., M. O. Ry. Co., supra; Southern Ry. Co. v. Railroad Commission of Indiana, supra.

I would affirm on appellant's appeal and reverse on the cross-appeal.

MILLER, HALE, and SMITH, JJ., join in this dissent.