dissenting. The obstruction on which this conviction was based arose out of a moving train. The pivotal question, as I see it, is whether § 151 of G-. L. c. 160 applies to an obstruction caused by a moving train. In my opinion it does not. I am mindful of the language of Knowlton, J., in Howard v. Union Freight R.R. 156 Mass. 159, 160 (quoted in the majority opinion), that the statute was designed to prevent obstructions by “passing or standing” cars. That language, I submit, was dictum. No question was presented in that case as to whether § 151 applied to passing trains. But whether that language was dictum or an actual holding, it should be reexamined in the light of subsequent developments in the law and changed circumstances. See Vigeant v. Postal Tel. Cable Co. 260 Mass. 335, 342-344.
In Southern Pac. Co. v. Arizona ex rel. Sullivan, Atty. Gen. 325 U. S. 761, it was held that even in the absence of Federal regulation, a State could not limit the length of trains moving in interstate commerce. If § 151 is construed as applicable to moving trains it has the effect of doing just that, although it does so indirectly rather than directly. To comply with the statute as construed by the court below, the defendant railroad has been obliged to shorten materially the length of its trains and alter its method of operations, and, as the majority opinion concedes, this has resulted in a “much more inefficient and costlier operation.” Increased operating costs are of sub*731stantial importance at a time when the continued maintenance of rail service in the community is a matter of grave public concern.
The majority opinion emphasizes the local aspects of the particular operation to which the statute is here held applicable. It is hard to see how a clear line, susceptible of practical administration, can be drawn between such local operations and the movement of trains more obviously engaged in interstate commerce; for example, trains passing from one State, through this Commonwealth, to another State. An attempt to do so could only lead to confusion and uncertainty as to precisely what train movements are governed by the statute. Accordingly, I feel constrained to construe today’s decision on the basis of its application to all trains moving within the Commonwealth. So viewed, the statute in my opinion violates the commerce clause of the United States Constitution as interpreted in Southern Pac. Co. v. Arizona ex rel. Sullivan, Atty. Gen. 325 U. S. 761. If one State can regulate the length of trains (albeit indirectly) as this statute does, other States can do likewise. The disruption of interstate commerce which such legislation would accomplish was, I submit, the primary consideration in the court’s decision in the Southern Pac. case. See 325 U. S. 761, 774-775.
Faced with statutes or ordinances of a similar type, other courts have construed them to apply only to standing trains. If construed as applicable to moving trains, these statutes, it is held, would collide with the principle laid down in the Southern Pac. case. Two well considered opinions of this sort are Kahn v. Southern Ry. 202 F. 2d 875 (4th Cir.), and Ocean View Improvement Corp. v. Norfolk & Western Ry. 205 Va. 949. As was said in Worcester County Natl. Bank v. Commissioner of Banks, 340 Mass. 695, 701, “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is .unconstitutional but also grave doubts upon that score.”
I am authorized to say that Mr. Justice Cutter joins in this dissent.