Plaintiff is a duly organized and incorporated railway company which is and has been for many years engaged as a common carrier operating its lines in Michigan, Wisconsin, Illinois and other States into which they extend carrying passengers and freight by rail, both in intra- and inter-state commerce. In 1921 the legislature of this State passed the so-called "cab curtain law" (Act No. 139, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 8396 (24)]) entitled:
"An act requiring railroad companies to equip locomotive engines with either cab curtains or vestibule cabs, providing a penalty for the violation of this act, and making it the duty of the Michigan public utilities commission to enforce its provisions."
By a provision in section 1 of this act it was not to be construed as prohibiting engines not so equipped moving on their own steam, —
"either with or without a train when such a movement is from a point without this State, through and to a *Page 678 point beyond its borders, or from a point without the State to a point within it, or from a point within this State to a point without it, if such passage is for the purpose of moving it to or from a repair shop or shops for the purpose of repairing such locomotive engine, or when it is not intended for service within this State."
Section 1 of this act and its title were amended by Act No. 127, Pub. Acts 1923, omitting that proviso, the amended title and section being as follows:
"An act requiring railroad companies to equip locomotive engines with either cab curtains, vestibule cabs, housing and other devices for the safety and health of railroad employees, providing a penalty for the violation of this act, and making it the duty of the Michigan public utilities commission to enforce its provisions.
"SECTION 1. It shall be unlawful for any railroad company to use within the State of Michigan on its line or lines December first to April first of each year, any locomotive engine not equipped with either approved and suitable cab curtains, vestibule cab, housing and other devices for the safety and health of locomotive enginemen not in conflict with rulings of the interstate commerce commission, as the Michigan public utilities commission may require to be placed upon the engine cab, water tank or coal tender: Provided, That no railroad company shall be required to place housings over the coal tender of any locomotive unless such locomotive is to be used north of Straits of Mackinac: Provided further, That the said Michigan public utilities commission shall be the judge as to the necessity for and the manner of equipping such locomotive engines relative to the closing of the openings between the engine cab and the water tank or coal tender, and may require such curtains, housings or other devices as it may deem necessary to meet the conditions in the several localities in the State of Michigan which will give reasonable protection to the enginemen: Provided further, That the Michigan public utilities commission may from time to time order such changes and additional equipment as the *Page 679 commission may deem necessary for the proper protection of the enginemen."
Plaintiff's Michigan lines extend into and through the western part of the upper peninsula of this State.
Between September 9, 1921, and October 4, 1923, the Michigan public utilities commission promulgated five different orders with respect to the equipment required by locomotives in the State of Michigan under its so-called "cab curtain law." One of these orders, dated January 4, 1922, particularly refers to plaintiff's locomotive cab curtain equipment, with which plaintiff complied and equipped its locomotives with the type of cab curtains ordered by the commission.
On October 4, 1923, another order was made by the commission under the amended act, against which this bill was filed, to restrain its enforcement on the ground that the act as amended is unconstitutional and the order void because it seeks by State legislation to invade a field already occupied by congressional legislation under the Federal Constitution; and also because the order complained of is oppressive, unreasonable, and arbitrary in that it compels plaintiff to discard equipment recently installed by order of the commission and otherwise equip its engines for the same purpose at a heavy expense with impractical appliances which would result in increased danger.
That portion of plaintiff's system most directly affected by the contested order consists of lines which extend north of and from Green Bay, Wisconsin, through Menominee and Escanaba to Ishpeming, Michigan, from Green Bay to Iron river, Michigan, from Escanaba to Watersmeet in Michigan, and two other short lines within this State known as the Schlessinger and Metropolitan branches. It also owns and operates a line between Antigo and Ashland, Wisconsin, which crosses the Michigan State line at Ironwood. These lines all connect with plaintiff's lines extending *Page 680 southward through Milwaukee, Wisconsin, to Chicago, Illinois, there connecting with its lines extending westward and northerly through Illinois, Wisconsin, Iowa, Nebraska, Minnesota, North and South Dakota and Wyoming.
During the winter season plaintiff operates in Michigan an average of 89 locomotives used daily in moving interstate commerce, passenger and freight, the bulk of its traffic being iron ore, forest products and food supplies, with other miscellaneous freight. The traffic over its system in the ten States where its lines run being more or less seasonal, these are interchanged and transferred from time to time to other territory where its lines extend as conditions render expedient.
In other northern States through which its lines extended, plaintiff had abundant experience with heavy falls of drifting snow and long before the Michigan cab curtain law was enacted adopted cab curtains and other equipment for protection against invading snow found from experience, as it claims, to be the most efficient and practical in actual operation. The comparative efficiency of the equipment now in use by plaintiff and that ordered by defendant was made an issue of fact by the conflicting testimony of experienced railroad engineers.
Defendant's order of October 4, 1923, required the cabs to be equipped with two curtains at the gangway on each side, instead of the one now used by plaintiff, which extends over each gangway from the cab back to the front of the tank and from the top of the cab down to the deck, is held at the bottom by a flap turned in on top of the deck and weighted down to close the opening from below, with a cape curtain hanging above at the top of the side curtains, across the back of the cab and fastened to a wooden bulkhead on the tender. It also has a drop curtain at the back of the cab hanging down to the top of the tank and *Page 681 closing the opening between cab and tank. The side curtains are made rigid at the rear edge by thin strips of wood, held in place by clips on the front of the tender in such manner that they can be easily sprung off by one hastily leaving the cab. It is contended that the double curtains ordered by defendant obstruct hasty exit from the cab, occasioning delay and increasing the danger in case of an emergency. Plaintiff also points out that the hood curtain at the rear of the cab as used by it does not prevent the enginemen having a clear view to the rear through the back windows, while that prescribed by defendant does and is in conflict with rule 116 of the interstate commerce commission which requires cab windows to be so located and maintained that the enginemen may have a clear rear view of the track and signals from their proper positions in the cab. We do not find that this is controverted except by testimony that the usual and best view to the rear for the enginemen while snow is flying is by leaning out of the side windows of the cab.
By order of March 13, 1911, relative to safety appliances, the interstate commerce commission required side handholds, commonly called "grab irons," to be safely fastened, "One on each side of the tender near gangway; one (1) on each side of the locomotive at gangway; applied vertically." Plaintiff's grab irons on the tank are placed at the gangway on the front tank corners and do not extend outward beyond its extreme width. To avoid objections made by the Federal inspectors to the prescribed curtains, which it was claimed interfered with use of the grab irons where placed, it would be necessary in order to comply with defendant's curtain requirements to put on new grab irons back from the front around the corner on the outside of the tank. This with the clearance space imposed by the interstate commerce commission *Page 682 required a heavier grab iron, 1 1/4 inch thickness, so projecting beyond the sides of the tender as to increase its width 7 1/2 inches over all, which plaintiff claimed necessitated rebuilding and widening certain of its roundhouses, that at Escanaba with 32 stalls being so constructed that the entrances could not be widened without rebuilding. Defendant's cab curtain order also required the construction of tank housings on top of the tenders which plaintiff claimed under its proofs would bring the top of the housing as high as the engine cab on its large locomotives and reduce their coal carrying capacity, make it impossible to coal up at certain of its coaling chutes without reconstructing and raising them, and the added weight of the tank housing would increase the total load of the tender from 1,500 to 2,000 pounds, which, with a full load of coal, would be beyond the carrying capacity of the tender axles, either necessitating replacing them with heavier and stronger axles or carrying lighter loads of coal and coaling oftener, all of which would cause delay and heavy expense, decrease efficiency of operation and impose an extra burden on interstate commerce.
While most of the testimony relating to those physical conditions is primarily directed to the claim of unreasonable, arbitrary, and impractical features of the order, and in many respects raises issues of fact, undisputed features of the testimony bear more or less upon plaintiff's contention that the cab curtain act and order under it are void because the Federal authorities occupy the field. That claim is founded primarily on the so-called "boiler inspection act" passed by congress on February 17, 1911, as amended March 4, 1915 (36 U.S. Stat. p. 913, 38 Id. p. 1192), entitled:
"An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their *Page 683 locomotives with safe and suitable boilers and appurtenances thereto."
To more plainly outline and enlarge the duties of Federal officials administering the act and make more clear and comprehensive the significance of "appurtenances," this amendment definitely included the entire locomotive and its tender in a single unit, as follows:
"SECTION 2. That the chief inspector and the two assistant chief inspectors, together with all the district inspectors appointed under the act of February seventeenth, nineteen hundred and eleven, 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 seventeenth, nineteen hundred and eleven, 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."
Administered in connection with the safety appliance acts of congress under direction of the Federal interstate commerce commission, inspection of boilers is but one of many duties required by this act and already imposed by numerous rules prescribed by the commission, extending through all parts of the mechanism and equipment of locomotives and tenders, including the following titles:
"Stay bolt testing — Safety valves — Water glass — Flue plugs — Ash pans — Brake and signal equipment — Draw gear and draft gear — Driving gear — Lights — Running gear — Tenders — Throttle and reversing gear — Accident reports," etc.
Various of the 162 rules in evidence promulgated by the interstate commerce commission on that subject *Page 684 prescribed in detail equipment which naturally is for the convenience, comfort and health of the enginemen, as well as for their own safety and that of their engines or the trains they are hauling. Rule 132 prescribes that certain lights shall be located in cabs for their convenience. Rule 152 prescribes that tender frames shall be maintained in "safe and suitable condition for service," that the difference in height between the tender deck and cab floor on the locomotive "shall not exceed 1 1/2 inches" and the "minimum width of the gangway between locomotive and tender, while standing on straight track, shall be 16 inches." Rules 116 and 117 are as follows:
"116 (a) Cabs. — Cabs shall be securely attached or braced and maintained in a safe and suitable condition for service. Cab windows shall be so located and maintained that the enginemen may have a clear view of track and signals from their usual and proper positions in the cab.
"(b) Road locomotives used in regions where snowstorms are generally encountered shall be provided with what is known as a "clear vision" window, which is a window hinged at the top and placed in the glass in each front cab door or window. These windows shall be not less than 5 inches high, located as nearly as possible in line of the enginemen's vision, and so constructed that they may be easily opened or closed.
"(c) Steam pipes shall not be fastened to the cab. On new construction or when renewals are made of iron or steel pipe subject to boiler pressure in cabs, it shall be what is commercially known as double strength pipe, with extra heavy valves and fittings.
"117. Cab aprons. — Cab aprons shall be of proper length and width to insure safety. Aprons must be securely hinged, maintained in a safe and suitable condition for service, and roughened, or other provisions made, to afford secure footing."
Certain basic principles involved in this inquiry are too well settled to invite discussion or extended citation *Page 685 of authority. As early as 1842 it was said by our Federal Supreme Court:
"For, 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. This doctrine was fully recognized by this court, in the case ofHouston v. Moore, 5 Wheat. 1, 21, 22; where it was expressly held, that where congress have exercised a power over a particular subject given them by the Constitution, it is not competent for State legislation to add to the provisions of congress upon that subject; for that the will of congress upon the whole subject is as clearly established by what it has not declared, as by what it has expressed." Prigg v. Pennsylvania, 16 Pet. (U.S.) 539-617.
Vide, also, Oregon-Washington, etc., Navigation Co. v.Washington, U.S. Adv. Ops. 1925-26, p. 332 (46 Sup. Ct. 279).
This was referred to and quoted in substance with approval inSouthern R. Co. v. Railroad Commission, 236 U.S. 439 (35 Sup. Ct. 304), wherein it was held that an Indiana act requiring railway companies to place grab irons on sides and ends of every car operating in that State had been superseded by the Federal safety appliance act.
The defense, as stated in its counsel's brief, is based on the contention that neither the boiler inspection act nor any other Federal statute or rule covers the Michigan cab act to exclusion of inherent authority of the State under its police powers to legislate "for the *Page 686 benefit of the health and protection of its citizens," citing and quoting in support of that contention the following, fromNew York, etc., R. Co. v. New York, 165 U.S. 628 (17 Sup. Ct. 418):
"While the laws of the States must yield to acts of congress passed in execution of the powers conferred upon it by the Constitution (Gibbons v. Ogden, 9 Wheat. 1, 211), the mere grant to congress of the power to regulate commerce with foreign nations and among the States did not of itself and without legislation by congress, impair the authority of the States to establish such reasonable regulations as were appropriate for the protection of the health, the lives and the safety of their people."
Unquestionably a State may legislate upon a subject-matter while the power vested in the Federal government to do so remains dormant. In the case quoted from, the New York law there involved was passed in the absence of any action by congress on the subject. In the instant case congress had, under the power vested in it by the commercial clause of the Federal Constitution, enacted both the safety appliance laws and the boiler inspection act with its amendment before the enactment of the Michigan cab curtain law. These Federal acts had been reviewed and construed in numerous decisions of appellate courts both State and Federal. Presumptively the amendment of the boiler inspection act was not without purpose, and it is significant that both Atlantic Coast Line R. Co. v.Georgia, 234 U.S. 280 (34 Sup. Ct. 829), and Vandalia R. Co. v. Public Service Commission, 242 U.S. 255 (37 Sup. Ct. 93), cited and stressed for defendant, arose prior to the amendment of 1915.
A recent well considered case directly bearing upon the scope of the boiler inspection act as amended is Atlantic Coast LineR. Co. v. Napier, 2 Fed. (2d Series) 891. The court there had under consideration an act passed by the State of Georgia requiring locomotives *Page 687 operating within the State to be equipped with a described automatic door to the fire-box. Suit was brought by the railway company to enjoin its enforcement on the same grounds urged here by plaintiff. In granting the relief asked, the court there quoted the amendment of 1915 and discussed analogous questions to those raised here, in part as follows:
"The interstate commerce commission, since the amendment of 1915 (Comp. St. § 8604a), has promulgated rules of inspection regarding many appliances, looking to safety on locomotives, including headlights of a stated capacity, cab windows of specified arrangement, and having protection from obscuration by snow, whistles, sanding apparatus, and the like. * * * But, whether it (the State law) be an effort to regulate commerce by acting on its instrumentalities or an exercise of police power, the State statute as applied to the locomotives of carriers engaged in interstate commerce finds the field fully occupied by paramount Federal legislation. By the enactments of 1915 and 1924 above referred to congress has required of such carriers the use of locomotives in proper condition and safe to operate in all their parts and appurtenances, and authorized the commission, by rules and regulations, to fix the standard of safety and propriety.
"Though the act contemplates liberty in the carrier to initiate these rules and regulations for the commission's approval, the commission may disapprove what is offered, and promulgate its own tests of fitness. This resembles the process of rate making, and, just as the rates when approved and filed are the exclusive law of transportation to which they apply, so these rules, when approved, are the law of locomotive equipment. * * * The title of the act of 1911 states that its purpose was to 'compel common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto,' not simply to inspect and keep in order such boilers and appurtenances as they had. * * * This purpose by the amendments is broadened into the compelling of a safe locomotive in all its parts and *Page 688 appurtenances. When a locomotive meets the tests and rules fixed by the commission, it must, so far as carriers of interstate commerce are concerned, be esteemed proper and safe. The States cannot supplement or take from the requirements. There can be no division of responsibility and control. The provisions made by congress are exclusive. Erie R. Co. v. NewYork, 233 U.S. 671 (34 Sup. Ct. 756, 52 L.R.A. [N. S.] 266, Ann. Cas. 1915D, 138)."
Defendant's counsel urge that the State legislature exercised its reserved police power "to meet a purely local condition" in enacting its cab curtain law as a health measure, that the boiler inspection act is "an inspection act and nothing else," it and the safety appliance laws are so general in their provisions that they cannot be held exclusive beyond special matters expressly covered by them and neither they or any rules promulgated by their authority deal with the subject of cab curtains.
Cold weather, heavy snow falls and drifting snow which at times during the winter interfere with efficient operation of railroads are not purely a local condition or concern of northern Michigan. Like conditions prevail throughout the northern portion of the northern States from Maine to beyond the Rocky mountains. The deep snows and fierce, drifting blizzards of the northern prairie States are matters of common knowledge. An old engineman of plaintiff familiar with all parts of its system testified that Wyoming "is the hardest territory we have got, to handle during the winter time." Heavy snow falls and drifting winter winds are far from a purely local condition confined to northern Michigan. The scope of like seasonal occurrences of such conditions in our northern States naturally touches and materially affects interstate commerce. If each State where such conditions prevail was free to separately dictate how locomotives within its borders engaged in interstate *Page 689 commerce should be equipped to meet such conditions, the various appurtenances which their conflicting legislation might in combination impose could lay a heavy additional burden on such commerce.
It is urged that the rules of interstate commerce are confined to uniformity throughout the country, and its various climatic conditions do not permit such a rule. A rule of uniformity may rest upon a reasonable classification, making it applicable to kindred conditions or circumstances as in the rate cases, and, more closely analogous, special rules promulgated under this law relative to locomotives using coal oil for fuel.
We do not find or think that any court has held the boiler inspection law purely an inspection act and nothing more. It primarily and specifically provides for an inspection. But if those authorized to administer it could only inspect and nothing more it would be a purposeless, vain, and toothless law. Its original title, however, states its purpose is to promote the safety of employees and travelers bycompelling interstate commerce common carriers to equip their locomotives with safe and suitable boilers and appurtenances to that end. By the amendment it was made certain that the law covered "the entire locomotive and tender and all their parts," which the carrier was compelled to equip with safe and suitable appurtenances. For execution of that purpose many rules have been promulgated and enforced by the interstate commerce commission under authority of this act, dictating the nature and use of various appurtenances and kinds of equipment. We are not aware that any court has denied its power to do so.
The fact that the interstate commerce commission promulgated no rule relative to cab curtains is not the test of whether congress had occupied the field. Plaintiff and some other, if not all, railroads similarly situated with lines in the northern zone of deep snows *Page 690 had adopted cab curtains as regular appurtenances for locomotives operated in those regions long before the boiler inspection act was passed. By the amendment of 1915, if not before, it became the duty of inspectors appointed under that act to inspect all parts and appurtenances of locomotives and tenders engaged in interstate commerce. Presumptively they did so and found no fault. It is not, however, a question of what they did but of what they were required by the law to do and should have done. The title of the Michigan act provides "Either cab curtains, vestibule cabs, housings, and other devices," are to be prescribed for "the safety and health of railroad employees" and repeats such requirements in the body of the act as applied to locomotive enginemen. The purpose of the Federal act as expressed in its title is to compel carriers of interstate commerce by rail to equip their locomotives with safe and suitable appurtenances "to promote the safety of employees and travelers." Both are, comprehensively viewed, directed to an analogous purpose. The use of the word "health" in the State act as applied to cab curtains, vestibule cabs, etc., cannot circumscribe the more comprehensive word "safety" as applied to the "entire locomotive and tender and all their parts."
In Whish v. Public Service Commission, 205 N. Y. App. Div. 756 (200 N. Y. Supp. 282), where the court held a New York law requiring vestibule cabs and locomotives for protection of enginemen in winter invaded the field occupied by Federal authority under the amended boiler inspection law, the opinion ably discusses the questions raised here in part as follows:
"In the case under consideration congress has not provided in its statute for any rule of universal application, but has distinctly provided that each carrier shall file with the commission its proposed rules and instructions, which are subject to the approval and *Page 691 modification of the commission. The mere fact that the commission has adopted a set of rules applicable generally, through the concerted recommendations of the carrier as a matter of convenience, does not mean that the commission cannot adopt a vestibule cab for the carriers operating in States where the rigors of the climate might demand it. The act of congress clearly indicates the contrary. The main underlying principle seems to have been conclusively settled since the early decisions of the United States Supreme court. Where congress takes the field, it operates to supersede any State legislative action, or to prevent any such legislative action upon the same subject. If it depends upon the intent of congress as urged to determine whether or not congress has taken the field, we find that here the plain intent of congress has been to act in the field by requiring the interstate commerce commission to make such regulations as it deems proper with reference to the entire locomotive and tender and all their parts."
The above case, as also Atlantic Coast Line R. Co. v. Napier,supra, and Louisville, etc., R., Co. v. State, 16 Ala. App. 199 (76 So. 505), deal exhaustively with the scope of the amended boiler inspection act, are directly in point here and convincingly reasoned, in harmony with the principles controlling this case as we conclude.
A decree should be prepared enjoining the application of the State statute to plaintiff's locomotives and tenders engaged in interstate commerce, as prayed, with costs to plaintiff.
BIRD, C.J., and FELLOWS and WIEST, JJ., concurred with STEERE, J.