The State act (Act No. 139, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 8396 (24)]), providing for the equipment of locomotives with either cab curtains or *Page 692 vestibule cabs, is a police regulation, designed to promote the health and comfort of the employees working therein. It incidentally affects interstate commerce.
"But when the local police regulation has real relation to the suitable protection of the people of the State, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce, provided it does not conflict with legislation enacted by congress pursuant to its constitutional authority." Savage v. Jones, 225 U.S. 501,525 (32 Sup. Ct. 715).
The question here presented, then, is: Does this statute and the order promulgated pursuant thereto invade a field already occupied by congressional legislation? Or, as stated by. Mr. Justice Harlan in Missouri, etc., R. Co. v. Haber,169 U.S. 613 (18 Sup. Ct. 488):
"May not these statutory provisions stand without obstructing or embarrassing the execution of the act of congress? This question must of course be determined with reference to the settled rule that a statute enacted in execution of a reserved power of the State is not to be regarded as inconsistent with an act of congress passed in the execution of a clear power under the Constitution, unless the repugnance or conflict is sodirect and positive that the two acts cannot be reconciled orstand together."
There can be no division of the field of occupation. To prevent State legislation there must be such legislation by congress "upon the precise subject-matter" (Gulf, etc., R., Co. v. Hefley, 158 U.S. 98, 104 [15 Sup. Ct. 802]) as results in an exclusive occupation of the field. See, also, Atlantic CoastLine v. Georgia, 234 U.S. 280 (34 Sup. Ct. 829); PennsylvaniaR. Co. v. Public Service Commission, 250 U.S. 566, 569 (40 Sup. Ct. 36). We must examine the provisions of the several acts of congress to determine the question. *Page 693 The first of these was enacted on March 2, 1893 (27 U.S. Stat. p. 531), and is entitled:
"An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes."
The title is suggestive of the provisions of the act. It applies to locomotives as well as to cars, and by an amendment in 1903 (32 U.S. Stat. p. 943) tenders were brought within its provisions. Amendments were later enacted relating to ash pans, mail cars and the like, the purpose apparently being to bring the entire train and all its equipment within the provisions of the law.
By an act passed in 1910 (36 U.S. Stat. p. 298) the safety appliances designated by the commission were to be standards of the equipment to be used on all cars subject to the provisions of the act.
The "boiler inspection act" was enacted in 1911 (36 U.S. Stat. p. 913). Its title reads as follows:
"An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto."
The gist of this act appears in section 2, which reads as follows:
"From and after the first day of July, nineteen hundred and eleven, 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 boiler of said locomotive and appurtenances thereof 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 *Page 694 traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for."
Its purpose is apparent. It contains no requirements as to the construction of the boilers, but provides that they must be kept "in proper condition and safe to operate * * * without unnecessary peril to life or limb." The sections following provide for the appointment of inspectors, charged with the duty of seeing to it that this provision is complied with.
We next come to the act of 1915 (38 U.S. Stat. p. 1192), amending that of 1911 by adding to section 2 a provision that the inspectors shall have the same powers and duties with respect to all parts of the locomotives and tenders as are conferred by the act with respect to boilers and their appurtenances.
The claim of invalidity of the State statute rests upon the assertion that under this amendment the interstate commerce commission may adopt a regulation providing for cab curtains on locomotives and, if empowered by the act so to do, the field of regulation in that respect is already occupied by Federal legislation and the State left without authority to legislate in reference thereto.
Does this amendment, when read in connection with the act itself and the several acts which preceded it, evince an intention on the part of congress to empower the commission to provide by regulation for curtains on the cabs of locomotives? Or, as suggested by the trial court, "Can it be said that an appliance, primarily devised to protect the health of employees, is an appliance 'to promote the safety of employees and travelers?' " Such a requirement can have but one purpose — to protect the health and provide for the *Page 695 comfort of the employees while in the cabs of the locomotives. Unless means be provided for excluding the snow from the cabs, large quantities will enter during the storms and blizzards, which are not infrequent in the northern part of this State. It collects upon the clothing of the engineers and firemen, as well as upon the floor and other parts of the cab. The heat causes it to melt, and steam arises therefrom. The clothing of the men becomes dampened, and, when they alight from the cab, it frequently becomes more or less frozen.
The several provisions in the act of 1893 and the amendments thereto were designed to promote the safety of persons and property in transportation, and to protect the lives and limbs of the trainmen. Under the boiler inspection act the commission is charged with the duty to see to it that the boiler and appurtenances thereof —
"are in proper condition and safe to operate in the service to which the same is put, that the same may be employed * * *without unnecessary peril to life or limb."
The amendment of 1915 extends this duty to "the entire locomotive and tender and all their parts." The purpose of this amendment, it seems to me, was to secure the same degree of safety in the operation of the locomotive and tender that was provided for in the act in the operation of the boiler. I can see no intimation in it of an intent to protect the health of the men employed in operating the locomotive. The several regulations referred to and quoted by Mr. Justice STEERE are not, in my opinion, health regulations. Many of them doubtless are conveniences and aids to the enginemen in the performance of their duties. Their efficiency is increased, and not only their personal safety but the safety of the passengers or freight carried on the trains is promoted thereby. *Page 696
In Second Employers' Liability Cases, 223 U.S. 1, 47 (32 Sup. Ct. 169, 38 L.R.A. [N. S.] 44), it was said:
"The duties of common carriers in respect of the safety of their employees, while both are engaged in commerce among the States, * * * have a real or substantial relation to such commerce."
It may well be asked, Does any such duty devolve upon the carriers in respect to the health or comfort of their employees?
In my opinion, the words "health" and "safety," as used in these acts, are not synonymous terms. "Health" is defined by Webster as "The state of being hale, sound, or whole, in body, mind, or soul; especially, the state of being free from physical disease or pain," and "safety" as "freedom from danger or hazard; exemption from hurt, injury, or loss."
While some of the safety provisions of the Federal acts may tend to protect the health of the employees, such protection is but incidental to the main purpose, that of safeguarding the lives and limbs of the employees and protecting that which is being transported, be it passengers or freight. The Federal statutes are spoken of in all the cases in which they are referred to as "safety appliance acts." The State law, if given effect, in no way interferes with the provisions of the safety appliance acts, or the boiler inspection act, or the regulations adopted by the commission pursuant thereto. Mr. Justice Hughes, in Savage v. Jones, supra, at page 533, said:
"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 *Page 697 their natural effect — the State law must yield to the regulation of congress within the sphere of its delegated power."
He further said:
"But the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of congress fairly interpreted is in actual conflict with the law of the State. This principle has had abundant illustration."
In Sinnot v. Davenport, 22 How. (U.S.) 227, 243, it was said:
"In the application of this principle of supremacy of an act of congress in a case where the State law is but the exercise of a reserved power, the repugnance or conflict should bedirect and positive, so that the two acts could not be reconciled or consistently stand together."
The rule thus stated was quoted with approval by Mr. Justice Harlan in Reid v. Colorado, 187 U.S. 137, 148 (23 Sup. Ct. 92), in which it was also said:
"It should never be held that congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested."
The duty of enforcing the several provisions of the Federal acts is cast on the interstate commerce commission. Its members have had long experience in construing and enforcing acts of congress dealing with interstate commerce. The record discloses that a blue print showing the proposed requirement was submitted to that commission and the following reply received from one of its members: *Page 698
"The application of cab curtains and handholds in accordance with blue print submitted with your letter of October 25, 1922, does not conflict with the safety appliance laws, the locomotive inspection laws, or the rules and instructions issued by this commission pursuant thereto."
Any construction placed by the commission or any of its members on the acts of congress would be in no way binding upon the courts, but it is persuasive that in the opinion of the commission the order in question in no way interferes with any regulation made by it under the authority conferred by said acts, and that the Federal acts and the State act may be enforced without conflict.
A similar order to that here considered was promulgated by the commission of Wisconsin and its validity sustained by the supreme court of that State in Chicago, etc., R. Co. v.Railroad Commission (Wis.), 205 N.W. 932. The questions here presented are discussed at length by Mr. Justice Owen, in an opinion in which the entire bench concurred. The opinion is so readily accessible that I refrain from quoting from it.
The decision in Whish v. Public Service Commission, 205 N. Y. App. Div. 756 (200 N. Y. Supp. 282), is based upon the assumption that the 1915 amendment to the boiler inspection act conferred upon the interstate commerce commission the exclusive power to provide the nature and kind of appurtenances which should be used on the cabs of locomotives. The distinction between requirements affecting the health of the employees and those providing for their safety and the safety of the persons or property on the train received but little, if any, consideration. And yet it quotes approvingly from Southern R.Co. v. Railroad Commission, 236 U.S. 439, 446 (35 Sup. Ct. 304), wherein it was pointed out that such appliances were *Page 699 provided for in the Federal acts "in order to secure the safety of employees."
In Louisville, etc., R. Co. v. State, 16 Ala. App. 199 (76 So. 505), the State law which was attacked provided that a particular kind of headlight should be used on trains. This was a safety regulation, pure and simple, and clearly within the Federal statute.
It is also urged that the equipment required by the order is unnecessary and expensive and "an unwarranted attempted exercise of police power." The record in this case, and in the Wisconsin case, supra, discloses that several of the railroads affected by these orders have complied with their provisions. I am not impressed that the commission abused the power conferred on it by the act in the requirements provided for. In view of the length of this opinion, I adopt the reasoning of the Wisconsin court in this respect.
The Wisconsin order did not provide for the housing over the tank as their statute did not authorize it. While the evidence is somewhat conflicting as to its use, the fact that several roads have installed it, and are using it without seeming interference with the operation of their locomotives, impels me to conclude that we should not interfere with the order made in that respect.
Acts of our State legislature "are to be presumed constitutional until the contrary is shown." Sears v. Cottrell,5 Mich. 259; Cummings v. Garner, 213 Mich. 408; Moore v.Harrison, 224 Mich. 512. Any rational doubt which exists as to the constitutionality of a law must be resolved in favor of its validity. Bowman v. Wayne Circuit Judge, 214 Mich. 518, 528.
In my opinion, the act and the order of the commission promulgated pursuant thereto should be held to be valid as a proper exercise of the police power of *Page 700 the State. The decree rendered by the trial court will be affirmed, with costs to defendant.
SNOW,1 CLARK, and McDONALD, JJ., concurred with SHARPE, J.
Justice MOORE took no part in this decision.
1 SNOW, J., took put in this decision by consent of counsel.
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