FIREMEN v. CHICAGO, R. I. & P. R. CO.
Legal provision: Article 1, Section 8, Paragraph 3: Interstate Commerce Clause
Argument of James E. Youngdahl
Chief Justice Earl Warren: Number 16, Brotherhood of Locomotive Firemen and Enginemen et. al., appellants versus Chicago, Rock Islands and Pacific Railroad Company et.al.
And Number 18 also, Robert N. Hardin, Prosecuting Attorney for Seventh Judicial Circuit of Arkansas versus the Chicago, Rock Islands and Pacific Railroad Company.
Mr. James E. Youngdahl: Mr. Chief Justice, may it please the Court.
This was an action by six large railroad companies in a three-judge federal court in Arkansas against officials of the State of Arkansas charged with enforcing two statutes.
The first applies to companies with it at least 50 miles of railroad track, when those companies are operating freight train with 25 cars or more, required the crew of an engineer of firemen, a conductor, and three brakemen.
The second statute applies to railroad companies with at least a 100 miles of track, when operating a switch train over public crossings in urban communities.
It requires a crew of an engineer, a fireman, a foreman and three helpers.
I represent four Railroad Brotherhoods which were permitted to intervene in the lower courts, speaking for the employees affected by these statutes of full crew laws in question, and our defendant interveners, the defendant appellants in this case.
At this stage of a case, it's the second time this case has been here, at this stage of a case, there are four constitutional issues.
The court below found that the statutes violated the Due Process Clause of the Fourteenth Amendment and constitute an impermissible burden of interstate commerce.
The railroads also urge in this appeal that there are classification infirmaries in the law in violation of the Equal Protection Clause and indiscrimination against interstate commerce.
The normal statement of the case would not apply in our view to this controversy because it has been 50 or 60 years long, when the opinion of the Court has written in this case, it will be the eleventh entry in the United States' reports on exactly the same Arkansas statutes.
There's been extensive substantive discussion of the same constitutional issues involving the same statutes in five previous opinions of this Court, all of which upheld the legislation challenge.
But evidently, the railroad resources are inexhaustible, and we are back again arguing substantially the same issues in 1968.
The first case on the particular statute was in 1911, where the freight crew statute was upheld against three constitutional contentions.
The railroads there argued that with automatic couplers and air brakes, a third brakeman was unnecessary and required an expenditure of a needless amount of money.
Generally, the Court found and held that those questions even then were concluded by former decisions involving railroads and involving similar constitutional issues.
As to the Commerce Clause, we found no violation until Act of Congress displaces the legislation; as to equal protection, several previous decisions involving mileage classifications were noted; and as to due process, the Court found some room for controversy, but found the statute were to remain to the object for this legislature had in view.
So, even if deemed unwise, where the court would not be overruled by the Court.
The 1916 case in this Court involved the switch crew statute.
More summarily, the railroads again, this Court again upheld the statute in question.
This time there were again Commerce Clause, equal protection, and due process argument.
The only new facts that the railroad brought up with respect to that statute in 1916 was that the switch crew statute does not apply to train of a 25 car length.
And that the exemption results in the fact that the covered railroad switch over the same crossing as non-covered railroads, therefore, having classification infirmities.
The Court know that's impossible for legislation to be all comprehensive, that the grouping was reasonable and the statute should be upheld.
The next attempt resulted in the Norwood decision of this Court in 1931.
This time there were four constitutional arguments: due process, equal protection, Commerce Clause, and the Supremacy Clause, arguing at the Railway Labor Act of Interstate Commerce, Comission regulation that preempted the laws.
The railroad made some new factual contentions, saying if there was improvement in road and equipment, that some collective bargaining agreements permitted a smaller crew, and that other states had smaller crews and operator law rights.
This Court found there was no preemption by the Railway Labor Act.
The other constitutional issues were in substance resolved.
And as a matter of fact, if bad faith of a litigation, dismissed the complaint with an extensive discussion about cost of compliance, pointing out if the railroad have completely failed to show that relative cost of compliance had increased.
That case was in trial on the merits before a three-judge court in the West District of Arkansas in 1933.
The Court after a long trial and extensive consideration issued a long and comprehensive decision going down fact by fact of Arkansas railroading but the three-judge court at that point thought that the issues were limited by this Court to a due process challenge of change of conditions and increased relative cost of compliance.
Both of those arguments so restricted were rejected by the West District of Arkansas which upheld the statues, this Court affirmed in a memorandum opinion of the same year.
The next discussion by this Court of the same statute in question was in the Landmark Southern Pacific against Arizona case in 1945, where while a train length statute of Arizona was invalidated by this Court, this Court in our view took great pains to distinguish the full-crew law decisions to point out for example that those laws do require such impediments of interstate commerce, which are stopping a state lines to pick up crew members.
But that those impediments were not of a kind, it made them constitutionally invalid, and pointed out that there in lay the distinction with the Southern Pacific against Arizona burden on commerce kind of rule.
The next consideration by this Court of the Arkansas full-crew law was in 1966, in this same case.
And I suggest that the off coast to the court on the preemption issue, which was the primary question at that time, the lower court had ruled against this on preemption, and we appeal and this Court reversed.
And in considering a preemption question, the opinion of Mr. Justice Black noted particularly that in view of Norwood and the previous cases, that even the preemption issue was presented narrowly, that it has specific things happens since 1933, to change the 1933 decision about preemption.
The Court found in the '61 decision, it had not.
The law was upheld, the discrimination against the interstate commerce argumentally with the railroads in 1966 was also rejected on the record before the Court at that time.
Further, all recent reported decision on the same issues by course of other jurisdictions, outside of a decision we're appealing from here today, have upheld the constitutionality of similar laws.
The Indiana Supreme Court refused even to take evidence on change of conditions, saying it's a matter for the legislature.
The Ohio open courts rejected all the identical constitutional contentions.
The New York Courts were extremely persuasive opinions, analyzed at great length that New York full-crew statute is very similar to those of Arkansas at time of the trial, rejected the railroad arguments, upheld the statutes.
It was affirmed by the appellate division, and about two weeks ago, it was affirmed 4 to 3 by the New York Court of Appeals.
The record here is massive and it is extremely difficult to brief or argue the detailed facts of dozens and dozens of witnesses who gave opinions and reasons for their opinions.
Pages and pages, and exhibits and huge exchanges of information about railroading.
I question whether would be advisable in any event to reiterate the intensive discussions about the duties of firemen, duties of brakemen and switchmen.
That discussion has been engaged in so many times by so many tribunals and have been substantially the same that there's argument on both sides, that there is room for judgment by reasonable men on both ways.
The judgment in this instance of the State of Arkansas on its legislative process was that it is important to the safety of the state to have these statutes.
As to the duty of the fireman, the most notable kind of situation is that firemen, in the sense of a man shoveling coal into a great have long time seized.
The firemen in the sense of maintaining the mode of power, providing inspection and lookout in relief and emergency duties have under sophisticated modern conditions of railroading have and continued to exercise is extremely important functions.
As to brakemen, the outstanding conclusion from the extensive record in this case is a brakemen do substantially now what they get in 1933.
They do a substantially, then the Court said what they did in 1916 and 1911, the previous analysis of this statute by this Court.
As to equipment and facilities, the evidence is that certainly there have been some improvements in railroad conditions, railroad equipment or railroad facilities.
Certainly as well, there have been some factors which have made railroading more dangerous than railroading was in 1933 and 1960, and 1911, and 1945.
There are faster and longer, and heavier trains, which are deteriorating, and deteriorate the equipment and the crossings over which they pass.
There is this factor combined with items like heavier highway traffic, the school bus program, for example in Arkansas, the record shows, was unknown at the time of the Norwood case.
Now, it's a large program involving the transportation of hundreds or thousand of children over the crossing of these trains passed.
Justice Harry A. Blackmun: Mr. Youngdahl, I gather your position is that whatever maybe the merits and all of these arguments or the bearing of these facts upon the question, it's nothing for courts to be concerned with that the Arkansas legislature is (Inaudible), is that it?
Mr. James E. Youngdahl: Yes Your Honor, that's the most important aspect of our argument.
Justice Potter Stewart: That is your argument with respect to the due process claim.
Mr. James E. Youngdahl: That is also our argument with respect to the burden on commerce.
Justice Potter Stewart: Well, it's not for the Arkansas legislation that it's determined, how much to -- in its unbridled discretion, how much to burden the interstate commerce, is it?
Mr. James E. Youngdahl: That is certainly true, Your Honor.
My response to that would be this, that the first evaluation is by the Arkansas legislature.
The second evaluation is judicial if it has not had held from Congress.
In this instance, there is a legislative evaluation of a kind of thing which this Court did in Southern Pacific against Arizona for example.
The intensive/extensive evidence was taken on the importance of crews to safety before Congress.
And the last decision of this Court analyze some of that legislative history.
Congress decided expressly, at least in expressed legislative history, not to preempt, still this Court found.
The reason for that decision, we would submit is a determination on the merit if there's some ground for states making these decisions.
I would suggest that that would be of considerable impact of the evaluation of this Court, even under the burden on commerce argument.
We contend that there are --
Justice Potter Stewart: What were the other claims that you have to meet?
Mr. James E. Youngdahl: Equal protection and --
Justice Potter Stewart: And discrimination against (Voice Overlap).
Mr. James E. Youngdahl: Yes Your Honor.
Perhaps I might refer briefly to them right now because I had not intended to later on.
Both of them say that they are classifications, which are somehow rigid.
Perhaps the cases aren't firm.
Our first argument as to those is that those questions have been resolved before.
The primary basis for the exemption argument, the 50 and 100-miliage of track made by the railroads is that exempt company switch over the same crossings is non-exempt companies.
This exact point was discussed and was a major element of discussion.
In the 1916 Arkansas full-crew case in this Court, St. Louis Iron Mountain, Southern Railway against Arkansas, fighting that while -- maybe the classification wasn't perfect.
There seem to be a considerable differences between 50-mile and a 100-mile railroads and large railroads.
There was a fact --
Justice Potter Stewart: (Voice Overlap) what happened to the Equal Protection Clause since 1916.
Mr. James E. Youngdahl: Well, that is true Your Honor, but a good deal has not happened in our view to Arkansas railroading with respect to that kind of fact.
Justice Potter Stewart: Well, what is this -- what's the length of the total line have to do with safety as in individual crossing?
Mr. James E. Youngdahl: Well, we can think of several things, the record shows the following kind of fact.
The smaller companies have lower speeds, whereas the companies that are appellees in this case go 75 miles an hour.
The only evidence in the record on the exempted company shows speed limits of 35 miles an hour for the company I happen to recall.
The evidence shows that the railroads represented as the appellees in this case have trains of a 150 cars long.
Whereas the trains represented by the exempted companies, the record shows, have consistently shorter trains.
For example, it is customarily the movement of one or two, or five, or seven cars of this Court in Southern Pacific against Arizona, recognizing -- recognized the increase danger involved in longer trains.
The 50-mile railroad company exemption has been repeatedly upheld by this Court.
And in 1950, in Morey against Doud, this Court observed that there was particularly, that that 50-mile railroad exemption was a kind of classification, which was sustainable as contrasted with the classification which was involved in that particular case.
Justice Potter Stewart: This -- these exemptions are what -- to refresh my recollection, 50 miles and also domestic corporations, is that it?
Mr. James E. Youngdahl: No Your Honor, something of a sort, purely 50 miles and 100 miles.
Now, after the interstate as against intrastate discrimination argument, there is not a perfect correlation --
Justice Potter Stewart: That could also be called as opposed as an equal protection argument, as well.
Mr. James E. Youngdahl: Either way it's in classification is infirmed in some way.
Now, as to those arguments, the record in a number of respects shows important distinctions.
Furthermore, the interstate/intrastate dichotomy does not fit the exemption dichotomy.
In other words, there are interstate railroad not covered by the statute because they do not have 50 or 100 miles of line and vice versa.
And so it is not a perfect as the railroads would probably suggest, but the facts of the record show that it's not.
Again, it seems to me that the class of that particular railroad classification principle by mileage of track has been upheld for a hundred years in respect to regulatory statutes and safety statute by this Court.
Justice Potter Stewart: Did the New York -- did the recent New York decision deal with classifications like that?
Did the New York law have a comparable classifications?
Mr. James E. Youngdahl: Yes Your Honor and the long opinion in the case of the opinion of Supreme Court, the trial court, which is a very careful discussion of that to deal in detail with it, I do not recall whether or not the Court of Appeals refer to that particular thing or not.
One further aspect to the 50 to 100-mile classification, which would support the classification that such in our view, the railroads have make a great argument of the fact that the cost of compliance is high.
I would like to say something about that in a moment, but if the cost of compliance is a factor and clearly it could be, the smaller railroad companies as I suppose are less able to assume the cost of compliance with these statutes and that might legitimately be a factor in a classification, not one which we would rely on wholly but certainly a factor.
Outside of the multitude of evidence on the duties of employees and the equipment and facilities of the railroads, the most persuasive part of a record altogether in our view is a mass of statistical material.
This is the first time in Arkansas full-crew law cases of a many that have been in this Court and the first time in any full-crew law case and other jurisdiction that I know of, where we now have experienced to look at, because in April 1964, with the effect of the 1963 legislation of Congress, railroads did in fact reduced their operating crew substantially.
Most firemen were taken off at a very rapid rate and a good many in a slower rate, brakemen and switchmen were taken off.
As a result of that, we have now a period of time to look at and I submit that the statistics from this period are most persuasive about the connection between these statutes and safety.
And at the very least, establish the right of the Arkansas legislature and the Arkansas people, because it's also been voted on populatory in Arkansas to make the cause and effect determination, resulting from those statistics.
Clearly from this evidence that railroading is a very hazardous business and continues to be, clearly number two, that beginning in April 1964 many crewmen have been take off of trains nationally, large percentage dropped.
Three, clearly since April 1964 or May, railroad accidents have increased substantially.
And number four, that when you analyze those accidents and you find those that are most attributable to crew side and crew performance, those accidents have increased, especially and the rate of those accidents have increased especially.
Now, a causal -- a cause and effect decision we say as primarily legislative, but there are some things to assist in that kind of evaluation here.
For example, collisions, it is conceded by all the parties that collisions are that type of accidents, most attributable to crew performance.
Accidents went up -- have gone up for a period of time, but beginning exactly at the time when many most firemen were taken off of freight trains in this country, collisions sky rocketed.
The rate of increase changed entirely as to collisions.
For example further, causes of accidents, causes such as disregard of stop signals, failure to secure handbrakes, running through switches, failure of the engineer to keep a look out, that kind of thing, most attributable to employee performance.
The rate of such accidents, accidents from such causes also rose sharply beginning in April or May 1964, extremely important causal factor.
Now, the railroads are hardpressed to answer this kind of testimony.
They answer it partly by using improper statistical techniques.
For example, let's say casualties have not gone up, because they measure casualties by billion grossed ton-miles.
A kind of exposure factor which no one else uses and even the railroads and other context, the record shows do not use.
They compare one year with another one year, instead of comparing periods of time.
The claimant there had been reporting defects and that the amount of train accident, dollar damage, in order to justify a report has stayed constant for the last several years.
But the fact that the Department of Transportation of the United States Government has found a startling and alarming rise and it repeatedly has told Congress that we need assistance in the railroad accidents field, which in the last few years had become more and more serious to the point of real dangerous calamity.
They say that the accident rate was increasing all along, but again it's possible to isolate that kind of accident, which is most attributable to crew performance, and furthermore the rate of the increase that the Department of Transportation notes, the rate of increase has gone up higher in the years, since 1964 than it have been going up since that time.
But even under the railroad statistics, comparing 1962 and 1966, the railroads with more firemen had a smaller increase in the collision rate.
Over the largest reported in a full-crew states had better accident and casualty rate experience than non full-crew states.
Arkansas train accidents have been increasing at a slower rate than state with smaller operating crews.
During the period with the same traffic density, casualty rates are no less for diesel and for steam locomotives, and comparing pre-1964 and post-1964 experience, Arkansas now have a smaller percentage of the national casualties, during the time where those crew sides had been proportionately larger.
One aspect of a railroad's case which we contend they have totally failed to prove, is the aspect of cost of compliance.
Both in Commerce Clause, the burden on commerce cases and in due process cases, the cost of compliance had been a major consideration by this Court.
The standards for the full-crew cases have been laid out expressly and in detail by this Court, in the 1931 Norwood decision.
This Court pointed out that it's not enough to say why we have to spend so much money last year, but there has to be a relative cost factor presented to the Court.
It has to relate to the operation of those employees per ton, per car, per mile, per something, and to say that we spent $5.00 more this year than we spent in last, has no due process relevance.
The railroads have this in front of them and yet, they totally failed to acknowledge in this case.
They simply put an evidence saying we spent $7 million in Arkansas in 1966 or 1965 in complying with the statute.
And on cross examination, they said, “Well, we added up all the wages of the firemen and all the wages of the third brakemen or switchmen and that's $7 million.”
Now, that alone is not enough, but we have more in this record, which reveal the deficiency as to this aspect of the case.
We have accidentally the operating papers used by one of appellee railroads, Kansas City Southern, in making their cost of compliance calculations, in which the actual mileage expense in Arkansas for train crewmen, people in the back part of the train, and for engine crewmen, the firemen and the engineer is presented.
And the startling result, totally uncontradictory in this record, the startling result from these figures is that Kansas City Southern did not experience any increase, in cost of compliance per mile of Arkansas railroading after the change in national crews in the other states in which operates and up-to-date or up to the period covered in the evidence.
In other words, railroads have failed generally as to this point.
When we look farther towards the kind of formulas which Norwood command, we find there's some evidence and that evidence show that there's no cost of compliance at all.
I found as startling when I first heard it and we began to inquire and there's evidence about what some of the causes might be.
Certainly, the railroads have ignored for example the fact that in places where engineers ride without a fireman or firemen are not required, the have to pay an extra allowance to the engineers, ignored completely by the railroad.
Certainly, everyone can see in the record, and the railroads make a big point of this in their briefs, that with a smaller crew, it takes a longer time to operate a train, with a longer time, it kicks in certain constructive and progressive allowances, which the people who are on the crew have to be paid.
Certainly, there is substantial evidence in which the Court, I'm certain that legislative could conclude that the accident rate goes up startlingly with a smaller crew, and that this perhaps account for.
But in any event, the only evidence showing related cost of compliance, not related to one year to other as a railroads argue, but related as to the kind of performance of these crew members shows that there is virtually no cost of compliance at all.
This is in our view a perfect case for the application of the principle that this Court does not fit as a super legislature, and a perfect illustration of why that is so is the opinion of a court below, because the opinion of the court below is no more or less in our view than a report of a committee, a legislative committee saying why they would like to change the law.
It does not as was the Norwood case, it does not as was the New York case a careful fact by fact, detail by detail analysis of what firemen do and what brakemen do, and what locomotives do, and what the crossing hazards are and all those things.
It is rather a general discussion of why the judges think that the full-crew library economically unwise, why are they unhappy with them.
They say for example that we suspect their primary paragraph on the evidence in the case.
It says the record is voluminous and massive, and there are films and pictures and testimony of dozens and dozens of witnesses, and depositions and so on, and said, “We are not going to make any attempt to discuss this."
Probably, we suspect that much of it is surplusage.
How can a court suspect that massive record is surplusage, if it has made a factual analysis?
An an analysis which would properly underlie a conclusion that there is no conceivable germane connection between a legitimate state purpose, the safety of its public and it's railroad men and the statue in question.
The court below notes that the legislation hamstrings labor relations and worries about the effect on the railroad in competition with a coming barge traffic in the Arkansas River.
These are classically legislative determinations and certainly not a basis for constitutional invalidations such with that of a court below --
Justice Byron R. White: Do you think there's any different in this respect between the freight crew law in the switching crew law?
Are they -- is that -- is there's a switching crew law involved?
Mr. James E. Youngdahl: Yes Your Honor.
There are two statutes, one freight was generally for over the road service and one switching for a switching in yards.
Justice Byron R. White: But how about the -- does this pass the same argument?
Mr. James E. Youngdahl: As far as -- as far as any legal standard, I don't see a difference at all.
There are some factual differences, a substantial one.
For example, the railroads argue that when a train is on the road, that they can put an extra brakemen in the cab, thereby making firemen unnecessary.
This is not true in a yard, where all the brakemen have to be passing signals and things to that kind and the firemen himself has to be passing signals to their factual differences in the functions of the people involved.
But in so far as the legal arguments, Your Honor, I see no difference whatsoever.
Justice Byron R. White: Yes, but there is a factual argument with in terms of discrimination against interstate commerce.
Mr. James E. Youngdahl: Well, there is the -- that difference and that that applies only to the freight crew law, I presume or the burden on commerce argument would apply only to the freight crew law, because the switching crews are not an interstate kind of situation.
Justice Byron R. White: Well, then why isn't there is discrimination against interstate commerce and the switching crew law?
But the switching crew law applies to all 100-mile railroad, does it?
Mr. James E. Youngdahl: That's correct.
Justice Byron R. White: And yet you say it's a local operation.
Mr. James E. Youngdahl: Well, that's correct, but --
Justice Byron R. White: Well then, why wouldn't it apply to local trains then?
I mean if shortline intrastate railroad, you just said they are --
Mr. James E. Youngdahl: Well, there is no evidence in the record.
Or the evidence in the record consists of this kind of thing, the railroad say that at X location, in X tower in Arkansas, 100-mile companies and less than 100-mile companies switch across the same crossing with different size crew as a result of the statute.
Justice Byron R. White: They do, don't they?
Mr. James E. Youngdahl: That is correct.
That is, however, a limited condition.
The intercity large companies and their distinction in the statute is not interstate/intrastate and the classification does not -- is not contiguous.
Justice Byron R. White: I know, but 100-mile in some other -- but the local railroads, the intrastate railroads, less than 50-mile railroads don't have to comply with the switching crew, do they?
Mr. James E. Youngdahl: That is correct.
Justice Byron R. White: Why don't they?
If the -- if the switching is really a local operation, what difference does it make, whether you own a 100 miles of track or only 50?
Well, I suggest that the longer trains come in, the bigger the companies come in to that switching area, with longer trains, they switch more cars, they have more complicated movements to attend to, they're less able to take care of a cost of compliance, which is involved.
With the facts as which occurred to me offhand, I think that I see no reason to disagree with this Court's 1916 decision in respect to what seems to me to be an identical arguments.
Primarily, we feel, that there are all kinds of basis for factual and opinion clashes and many aspects of this case, and the record is of voluminous and facts can be found to support a judgment of any reasonable man or any reasonable legislature.
And under the rules of this Court about judicial intervention, we respectfully urge that the decision of the court below reversed1 -- reversed and the complaint dismissed.
Chief Justice Earl Warren: Mr. Light.
You are going to complete the argument now, very well.
Argument of Robert V. Light
Mr. Robert V. Light: Mr. Chief Justice Warren, may it please the Court.
I suppose it is not often that a lawyer, even a country lawyer comes to this (Inaudible) chamber and conceived (Inaudible) that he is not prepared to discuss the intricacies of the record or the law in a particular case.
However, that job has been undertaken by the counsel for brotherhoods and that is the case in this instance.
I do simply want to emphasize on behalf of the State of Arkansas, the unequivocal position that the full-crew acts, which are presently under attached by the railroads are a legitimate expression by the people of the State of Arkansas, both through their elected representatives and by the initiative petition process which is granted by the Seventh Amendment in our Constitution.
And that the people all convinced that these full-crew acts are necessary, as well as desirable, both for the safety of the travelers in the state and for the welfare of railroad employees.
The fact that attorneys for the State of Arkansas have not been deeply involved in the details of this case, should not be construed by any means to indicate that the state is disinterested in the outcome thereof.
The appellees have suggested in their brief that the state has made a minimum presentation and that that minimum presentation indicates some absence of conviction on the points.
This is emphatically not so, the State of Arkansas is not a rich state financially.
We've got a rock of fellow there temporarily, but there are many demands made on the Office of the Attorney General and when we learned that the brotherhoods had intended to make a thorough and complete evidentiary and legal presentation, we realized that our limited resources could best be applied elsewhere.
Justice Potter Stewart: How many -- how many states have laws like this?
I know of that course they're not identical.
I gather that Arkansas perhaps (Voice Overlap).
Mr. Robert V. Light: I understand it, five Your Honor, I believe
Justice William O. Douglas: New York.
Mr. Robert V. Light: New York and Wisconsin, Indiana, Ohio, Arkansas.
Justice Potter Stewart: And each is a little different, I suppose.
Mr. Robert V. Light: Yes sir.
It's my understanding that they are.
Justice Potter Stewart: Does Arkansas have a crew concess law relating to passenger trains?
Mr. Robert V. Light: No sir.
I beg your pardon, yes.
Justice Potter Stewart: But it's apparently, it's not an issue here?
Mr. Robert V. Light: No, it is not an issue.
Justice Potter Stewart: Maybe you don't have fast trains anymore.
Mr. Robert V. Light: We have very few, very few.
They have not only discontinued them, they have taken up the tracks in many areas.
Our -- I'm informed by counsel for the brotherhoods that the total legal tab for this case is going to run in the neighborhood of $100,000.00.
Our entire litigation budget for the Attorney General's Office is $15,000.00 a year.
In 1958, it was pointed out in the briefs, this issue was presented once again to the people through the initiative petition process.
And the preamble to the question presented to the people, which is shown on page 12 in our brief, is essentially the same as the in treatise which are now made by the railroad to this Court.
The campaign was as interesting as an Arkansas political campaign can be with handbills, newspaper ads, Radio Times, etcetera.
And the results were decisive.
The people expressed their desire 130,465 for appeal, 162,748 against the appeal, and that's pretty good turnout in 1958 for the State of Arkansas.
This Court has recently had presented to it another case from our state, which was inherited as this one was.
I only want to emphasize that this case -- in this case we're as dead serious as we can be.
The State of Arkansas' position flatly and unequivocally here.
Justice William J. Brennan: You mean unlike the other two.
Mr. Robert V. Light: No sir, just in case that the same newspapers had been circulated up here as were circulated down home.
I wanted the Court to know that we are serious as we can be about this railroad case.
Chief Justice Earl Warren: Mr. Light.
Mr. Robert V. Light: Mr. Chief Justice, may it please the Court.
In my presentation I'll touch on some points concerning the history of this case and also on the legal standards applied by the court below in reaching the unanimous conclusions that are contained in its opinion and decree.
I'll also discuss some phases of the proof that led the District Court to conclude that these statutes in practical operation bear no reasonable relationship to the safety of railroad operations as they are today conducted over the United States and particularly as they are conducted today in Arkansas.
And finally, I'll briefly discuss our position that these statutes constitute an impermissible discrimination against interstate commerce entirely aside from the undue burden against commerce argument and also that they violate the Equal Protection Clause.The District Court find it unnecessary to pass on either of these constitutional challenges because it found the statues to be clearly unconstitutional on two other distinct grounds.
My colleague Mr. Lucente will expand the discussion of the factual basis for the findings of the court below, which will include these statistical evidence relating to the safety of railroad operations as it bears on the question of whether the minimum crew required by these Arkansas statutes of six men on both freight and switch crews makes any contribution to railroad safety.
He'll discuss the findings of the many boards, commissions and other quasi-judicial public bodies that have tried and decided substantially the identical fact issues that are presented in this case.
And finally, he'll describe the staggering burden of these statutes to the appellee railroads in terms of cost of compliance.
When this case was before the Court on the earlier appeal about two years ago, the appellants took the position that the constitutional challenges were so insubstantial as to make the case an inappropriate one for three-judge District Court.
This Court rejected that argument and remanded the case to the District Court for trial and determination of the constitutional issues, which of course have had not undertaken to decide in draining the summary judgment that it had earlier entered.
As we understand the plain language of this Court's decision on the earlier appeal it simply meant that the complaint filed in this case in April of 1964 sufficiently alleged facts that would cause these statutes to be unconstitutional if those facts were proven and if the railroad companies could prove what they'd alleged in the complaint, they were entitled to the relief sought.
It was in this context that the District Court on remand scheduled and then undertook a massive trial on a massive record, as Mr. Youngdahl indicates, over a hundred witnesses testified, a tremendous volume of other evidence and exhibits were received by the Court.
All directed toward permitting the District Court to decide the central factual issue of whether these Arkansas statutes in practical operation today really have any rational relationship to railroad safety.
I stressed that the issues addressed to the District Court were almost entirely factual and not legal as that Court indicated in its own opinion, the opinion from which this appeal is prosecuted, that the governing legal principles are clear and indeed are not substantially disputed.
And the Court then based on the massive record before it made this factual finding.
We find from the overwhelming weight of the evidence by the mid-1950s, if not before, the firemen on a diesel locomotive and the third brakemen or helper had in general seized to perform significant safety functions in the operation and switching of freight trains and cars.
Those findings of fact on this record supporting those findings of fact led inevitably in applying the constitutional principles that have been established by this Court to the lower court's central holding in this case, which was at under present conditions continued enforcement of the statutes makes no significant contribution to railroad safety.
And that statutes as they operate today are unreasonable and oppressive and violate the Due Process Clause and unconstitutionally burden interstate commerce.
I should note that the District Court of three judges in this case did not follow the example of the Norwood case and refer the matter to a special master.
Although quite obviously, it was going to involve a very extensive accumulation of the factual record but the three judges chose to hear the case because of the factual context.
It's necessary for them to pass on the credibility of the witnesses and of course, they enjoyed the superior position of being able to do that of hearing the witnesses that were actually presented and assessing the weight that was to be given to their conflicting claims or conflicting testimony.
The validity of these statutes has always turned on a fact question.
The Norwood case in 1933 involved the same sort of examination of the facts in the District Court after it had been remanded back to the District Court.
The accumulation of the sort of record that we have here today only on 1929, 1930, and 1931 railroad operating facts, and then the appeal from the conclusion of the Court at that time, the District Court, that there wasn't sufficient change to make the statutes then unreasonable, there wasn't sufficient improvement in railroad technology and safety.
When the appeal was taken from that, this Court regarded the entire matter as factual and in per curiam, once in its opinion, it said we see no reason to disagree with the determinations of fact of the District Court, the decree is affirmed.
We submit respectfully that that would be an entirely appropriate disposition of the case at bar.
The substance very briefly of the proof in this great record, and to make it perfectly clear, this is a very much abbreviated portion of the record, abbreviated by agreement of the parties, only typical extracts of the testimony and typical exhibits have put in here.
I would suspect that the whole record if printed would be six or seven times the volume of the three volumes that were printed.
The substance of that proof is that these railroads now before the Court, these six railroads and all the other American railroads are operating all over the United States with crews of less than the minimum of six required by the two Arkansas laws and that they've done it without sacrifice of safety.
The appellee railroads operations outside of the State of Arkansas are down with crews of three and four and in some infrequent situations, five with no sacrifice of safety.
Approximately 40 operating employees of these railroad companies were presented by the intervenors as witnesses in this case to testify as experts on railroad operations.
And each, although expressed in an opinion that it was good for safety to have the six men described by the Arkansas statutes was familiar with railroad operations conducted with a lesser crew.
Many of the them, if not most, had participated in such operations on crews of four and five, and sometimes three, either in other states where the appellees operate or had observed such operations of the exempted railroads in Arkansas, the 17 intrastate railroads that don't have to comply with these statutes and consequently have crews ranging from two up to six.
And none of these employees notwithstanding that opportunity to acquire expertise in railroad operations and to note about what cause the accidents.
None of them could cite a single accident that they could attribute to the absence of additional men on those crews smaller than six.
Mr. Youngdahl referred to the decision a couple of weeks ago of the New York Court of Appeals --
Chief Justice Earl Warren: I thought that the counsel said that many of the accidents were caused by collision, an increased number of collisions and that the collisions were caused by the lack of observation because there were fewer men in the cab.
Mr. Robert V. Light: That's the contention of the other side Your Honor.
We respectfully submit that the facts in the record don't vary out.
Chief Justice Earl Warren: Is it untrue, the fact that there were collision accidents.
Mr. Robert V. Light: As I indicated Mr. Chief Justice, Mr. Lucente is going to discuss the statistical evidence as I understand the statistical evidence --
Chief Justice Earl Warren: Well, but you just made the statement that they couldn't show anything and I just want to ask you if it was a fact that the collision accidents had risen?
Mr. Robert V. Light: As I understand and I'm going to, if the Court permits, make an abbreviated answer to that question because just to say this is a part of Mr. Lucente's presentation, the statistical evidence in the case that there has been a increase in the number of reportable collisions.
And the number of reportable collision is one that produces more than a fix dollar amount as fixed by ICC regulation, I believe.
But the same statistics as I understand it, and I don't offer -- I have no expertise in this, show that that type of accident that produces injuries, that's what we're interested here in safety to persons, that type of accident that produces injuries has been on a decline, there have been a decrease of those.
In the decision a couple of weeks ago, the New York Central against Lefkowitz in the New York Court of Appeals, the Court was divided 4 to 3.
There was a vigorous dissent of the three judges, indicating that they would hold the statute, the single statute that was before them unconstitutional as make work legislation and not a safety legislation, but the majority of (Voice Overlap).
Justice Potter Stewart: They'd hold it unconstitutional under what operation of the Constitution?
Mr. Robert V. Light: I take it under the Due Process Clause.
Justice Potter Stewart: Or was it the state Constitution they were talking about?
Mr. Robert V. Light: Mr. Justice Stewart, I don't recall whether they specified, the entire Court, the only issue upon which the entire seven justices of the New York Court of Appeals were agreed, is that it had to be tested as safety legislation, and if it didn't pass most of their, it failed because it could not constitutionally be justified as an economic measure or a measure to a just employment relationships.
Justice Potter Stewart: That could of course, had been a matter of state constitutional law?
Mr. Robert V. Light: That's possible and I do not recall whether the Court was explicit about which Constitution.
But the majority, four in that case, merely held with on the evidence, the trial courts fact-finding that it was not clearly unreasonable to require a firemen in a locomotive under a certain set of circumstances was supported by the record, it was a permissible fact-finding for him to make on this massive record.
And the majority explicitly distinguished the opinion of the court below and the case at bar and said that was tried on Arkansas facts and the trial court made different fact-findings, so it's entirely a factual issue.
The similarity of the case ends with the fact that both dealt, both this case and that of New York case dealt with state regulation, a railroad crew concepts.
The New York Court was dealing with a statutory requirement of one man on a crew, otherwise composed of two, three or four additional members, fixed by the size of that crew having been fixed by the arbitrational ward 282 or collective bargaining subsequent to it.
The Arkansas Court was dealing with two statutes that have traditionally been the most burdensome railroad crew concess litigation in the United States which accounts no doubt for the frequent occasions, for judicial appraisal of the effect and validity of these statutes.
The six-man requirement in the Arkansas freight crew law is the greatest number ever required by any state.
Only Indiana, also requires six men in a freight crew and it applies it to longer trainings.
The six men requirement in the Arkansas switch crew is the highest requirement, higher than any other requirement ever assessed or fixed by Court of the -- by the State of the United States for a switch crew.
No other state has ever required six men in a switch crew.
I might say, with reference to the four other states Mr. -- and if this information is correct that there are four other states that still have some form of railroad crew concess legislation.
None of it is nearly as burdensome or even comparable to that before the Court today.
Justice Potter Stewart: Has there been a discernable trend, one way or the other legislatively, either toward the enactment of (Voice Overlap).
Mr. Robert V. Light: There's been a clear trend, which is acknowledged by my adversaries in their brief toward the repeal of such legislation.
At one time there was some 20 states with some form of the legislation or the other, it's down to five now, but it's a hall of suggestion to tell the appellees here that they need to go to the legislature of the people of the Arkansas to be relieved of this staggering burden because the railroads project trip by 1958, as our colleagues suggest without much success.
Justice Potter Stewart: Didn't -- this is not really much our point, but haven't I read that New York is talking about the repealing its statute?
Mr. Robert V. Light: Justice Stewart, the New York had three crew concess statutes.
One requiring a freight crew, as I recalled six, and one requiring of switch crew as I recall five.
It repealed those two statutes two years ago.
All three statutes were attacked in their lawsuit which began back in '63 or '64 and after the trial court had entered its decisions, sustaining all three, the legislature repeal those two leaving only the statute that required a firemen in engine crews under many circumstances.
The District Court tested the constitutional standards, are tested against the constitutional standards established by this Court, these laws under both the due process and Commerce Clause grounds.
It correctly apprehended that the statute would be valid if they were reasonably related to the safety of operations and if there were unduly oppressive or restrictive or costly in comparison the benefits if any that they conferred.
And the Court acknowledged that if the reasonableness of the statutes remained after an assessment of the evidence fairly debatable, the statutes would be sustained, because that court like this one does not sit to pass a legislative judgment.
But it found that conceding as late as Norwood that the statutes, the reasonableness of the statutes in that factual context 35 years ago was reasonably debatable that it does not continue to be debatable today on this record and that the continued debate of it by the brotherhoods does not make it so.
On the Commerce Clause test, the Court observed that since the statutes had a distinct impact on interstate commerce, it was required to make the judicial appraisal to weigh the purported local benefits to be derived from the statutes against the national interest in an unfettered flow of interstate commerce free from local restraint.
It relied on this Court's decision in the Southern Pacific against Arizona case, where the Court found on the factual record made there that the safety benefits from the Arizona train link laws were so -- I'm trying to think of the phrase, because I think it's significant, so slight or problematical as not to outweigh the national interest in an unfettered commerce and the train link law was declared unconstitutional.
The Court also relied on Morgan against Virginia decided a year later where the Court measuring the validity of a statue requiring the separation of passengers on interstate conveyances by race against the Commerce Clause only, that was the context in which it was presented, gave great stress to the need and desirability for uniformity of regulation of interstate commerce and found that uniformity in that sort of regulation, ordering the seating of passengers on interstate conveyances was desirable in a constitutional sense and that the statutes therefore must fall.
I point out that the burden here on interstate commerce of the full-crew laws is far greater and the impact far greater than that of the statute in Morgan against Virginia.
There, the passengers could move in accommodation to conflicting state regulations as the conveyance move from state to state and the conveyance didn't have to be stopped and presumably no cost was incurred to the interstate commerce in complying with that statute.
Here, the trains must stop or slow to comply with the statutes.
Here, the impact of the cost of compliance is overwhelming.
The Court concluded and we submit correctly so that the statutes are not reasonably related to safety and that that's not fairly debatable in light of present day railroad operations and it concluded that any contribution that these statutes might be argued to make to safety would be entirely out of proportion and is entirely out of proportion to the purported benefits they concur.
It's suggested in the appellant's brief that an economic justification can be offered as alternative to support the validity of these statutes.
The case made below with the factual case made below is so unwaived that the appellants feel they need to offer an alternative at this stage and in their motion to intervene, they've setup what that alternative was, what their interest in this case.
They said their interest was that they represented the employees whose jobs were protected by these statutes and who might lose their jobs if the statutes were repealed.
And they also had the further interest that if they had a diminution of membership as result of the clarity and validity of these statutes, it would cost them a loss of income, it cause the organization, the brotherhoods a loss of income.
The District Court rejected that argument and said that the earlier cases including the decisions of this Court had authoritatively characterized each statutes as safety statutes and safety statutes alone.
The Supreme Court and then it accepted that characterization and indicated that the statutes might well be violative of the Constitution of Arkansas if it was attempted to measure or support them on an economic justification rather than safety.
The Supreme Court of Arkansas said in the first one these cases coming before it in 1908 that this legislation can only be supported on account of its supposed promotion of safety of the public and the employees.
This Court in its 1916 case, referring to both of these statutes, the 1907 and 1913 statute said that they were designed for the purpose of ensuring or promoting railroad safety.
This entire case, as well as all of these other crew concess cases litigated over the years have been and has been litigated on the issue of safety, that's what the proof in this massive record went to.
And as I've earlier noted, the seven justices of the New York Court of Appeals were unanimous on that issue alone that the statute had the standard followed based on its contribution to safety.
Of all the evidence in the record, the most persuasive and most dramatic I think of the absurdities of these statutes and of the real impact they have on interstate commerce are these absurd rituals at or near the Arkansas state line, they require in putting on and taken off men as a train moves from another state into Arkansas or through the Arkansas unto another state.
There are many examples of these extra employees placed on the train for the sole purpose of complying on the Arkansas statute.
One of the best and I'll cite only one in interest of time is the run of Southern Pacific Railroad Company from the Coffeyville, Kansas to Van Buren, Arkansas, which passes through on most of these run, it's ran through the State of Oklahoma.
From Coffeyville, Kansas to Greenwood Junction, Arkansas, the train is operated by four-men crew.
At Greenwood Junction, the train is stopped, two additional employees climbed aboard and ride the train for the balance of the journey in Van Buren, Arkansas consisting of six miles.
On the northward trip, exactly the same thing in reverse is done, a six-man crew takes the train out of Arkansas for six miles to Greenwood Junction, Oklahoma, where two men get off the train, ride a taxi back to town and four men take the train through Oklahoma to Kansas.
There are many examples in the record of this, the same thing as illustrated by the yards of these railroads where the state line bisects the yards.
The South Pacific yard at Texarkana, Arkansas is bisected by the Texas Arkansas line.
In one end of the yard, four men do the same work that six men have to do, when one of the switch engines ventures into the Arkansas side of the yards.
Justice Byron R. White: That one state can a make different judgment as to what risks it's willing to put up with, couldn't it?
Mr. Robert V. Light: There's no doubt about it, if the judgment is rationally related to do the purported purpose of its regulation, Your Honor.
Justice Byron R. White: But I suppose the yard -- I suppose the same rituals can that take place if it still upholds the Arkansas law.
I mean it doesn't make the Arkansas law bad just because (Voice Overlap).
Mr. Robert V. Light: It just illustrates, Your Honor, that the train safely moves from Coffeyville to Greenwood Junction in charge of four men, and the other two men mounted and rendered no service for six miles.
And this is (Voice Overlap).
Justice Byron R. White: (Voice Overlap) that so.
Mr. Robert V. Light: Yes sir.
In the interest of time, I will not expand on the discussion in the brief concerning the discrimination against commerce contention and the equal protection contention.
Justice Byron R. White: Can I just ask you if the court below make findings on discrimination?
Mr. Robert V. Light: It did not Your Honor.
It founded unnecessary and specific --
Justice Byron R. White: It didn't reach that issue?
Mr. Robert V. Light: That's right.
Mr. Lucente will present the balance of the argument.
Chief Justice Earl Warren: Mr. Lucente.
Argument of Martin M. Lucente
Mr. Martin M. Lucente: Mr. Chief Justice and may it please the Court.
My presentation will deal primarily with the factual basis for the lower court's determination at the Arkansas statutes, they're not reasonably related to safety.
And I will in the course of that, Mr. Chief Justice, discuss the collisions to which you have referred and which you asked Mr. Light about.
If I may, I would like to discuss a preliminary matter before getting to that particular subject.
Chief Justice Earl Warren: All right.
Mr. Martin M. Lucente: Under safety issue, the District Court made several critical findings.
It found first that from the overwhelming weight of the evidence that since the mid-1950s, neither the firemen on the diesel locomotive nor the third brakemen or helper contributed to safety of railroad operations.
The District Court also found without regard to employee categories that trains have been operated safely in other parts of the United States for many years, with crews of less than six men that size required by the Arkansas statute.
And that the training operations with these small crews had been conducted with safety.
And finally, the District Court concluded from the evidence as a whole, under present conditions, continued enforcement of the statutes makes no significant contribution to railroad safety.
In reaching these conclusions and making these findings, the District Court relied heavily on evidence, have comparable and safe operations with smaller crews.
In other cases involving identical issues, the courts have relied on the same type of evidence.
In the Warrenburg case which is referred to and discussed in our brief, the Court relied on evidence of comparable and safe operations with 44 ton yards switching diesels without a fireman and found the ordinance requiring a fireman on that type of equipment to be unconstitutional.
In the Southern Pacific case particularly, this Court relied extensively on evidence of safe operations in states outside of Arizona, operating three of the 70 car limitation imposed by Arizona.
And it concluded on the basis of such safe operations in other states that the Arizona limitation had no reasonable relation to safety.
The record in the present case permits the same type of comparison and strongly supports the District Court's conclusion that the statutory requirements at issue do not promote safety of operations.
This comparative evaluation is greatly facilitated by the changes in crew size, which have occurred since 1964 as a result of the award of arbitration board number 282.
That award which was applicable to virtually every major railroad in the United States has resulted in the elimination of a majority of the firemen's positions and a reduction in the number of brakemen and helpers used on crews in road and yard service.
There's also available for the same period of time, extensive data relating to safety of operations.
This data permits a comparison of the safety of railroad operations over a period of time, and it also permits a geographic comparison between states.
And when this information, with respect to safety of operations is properly related to the change in crew size which have occurred since 1964, it is possible to draw conclusions as to the relative safety of operations with crews of different sizes under comparable conditions.
Justice Potter Stewart: You don't make any claim at the -- that the fewer men on a crew makes for a safer operation.
Mr. Martin M. Lucente: No, we do not Your Honor.
Our basic point is that the extra men required do not make any contribution to safety, the operation is as safe with the four-man crew as it is with the six-man crew.
Justice Potter Stewart: But you don't say, you're not safer?
Mr. Martin M. Lucente: No, we do not make --
Justice Potter Stewart: Because that kind of a claim could be and apparently was made in the Arizona case.
The claim that that being the state law that's limited to length of trains, limited to numbers of freight cars in a train.
The claim being that if there were shorter trains, there would be more trains and therefore, more great crossing accidents and so on, you haven't got that argument available.
Mr. Martin M. Lucente: No, we don't have that argument here, Your Honor.
Perhaps the most graphic of the comparisons which the record permits involves the Arkansas operations of the plaintiff railroads in this case and their operations in other states.
As these railroads reduced the crews under the provisions of the award of arbitration board number 282, it became and it remains common place for trains and through service on this railroads to operate with identical characteristics through Arkansas and adjacent states, except for differences in crew size, the size of the train, its motor power, the frequency or infrequency of stops, the characteristics of tracks, signal protection and terrain remain incomparable.
Only the size of the crew changes from the four-man crew in other states to the six-man crew required by the Arkansas statute.
Trains of the Frisco Railroad operating over its main line to Missouri, Arkansas, on Tennessee undergo these crew changes as they pass in to Weiner of Arkansas.
Trains of the Rock Island operating from Tennessee to New Mexico have the same experience, going from four-man crews in other states to six-man crews in Arkansas.
And the Missouri Pacific and Cotton Belt have a large volume of interstate operations, which also proceeds identical in operating features and characteristics, except for differences in crew size.
Now, in yard services, Mr. Light has pointed out there are instances where a border bisects the yard and where four-man crews do a switching in one part of the yard and six-man crew do the switching on occasions when they are required to go into Arkansas.
The other part of the record on this, in addition to the changes in crew size is the evidence which shows the relative safety of operations of the plaintiff railroads in Arkansas and in other states.
The record shows that during the five-year period, which the most recent five-year period available at the time of the trial, from 1961 to 1966, casualties arising from train operations were reduced by 13% in Arkansas and 16% in other states through which the plaintiff railroads operate.
I'm referring now to the reportable causalities comprehended by the regulations of the Interstate Commerce Commission.
Casualties were reduced in both Arkansas and in other states, but the reduction in other states on the plaintiff railroad is greater than in Arkansas.
Chief Justice Earl Warren: Casualities?
Mr. Martin M. Lucente: Casualities, the injuries to burden.
Chief Justice Earl Warren: How about the accidents?
Mr. Martin M. Lucente: Yes, accidents Your Honor are comprehended under the Interstate Commerce Commission term of train accidents.
A train accident to be reportable to the Interstate Commerce Commission must involve one basic requirement.
It must involve property damage to railroad equipment arising out of the operation of trains of at least $750.00.
Since 1961, there has been a trend of increases in train accidents reportable to the commission, and train accidents also comprehend collisions.
Collisions are one of the categories within the train accident category.
There has been an increase in train accidents reportable to the Interstate Commerce Commission since 1961.
But the fact is that casualties, injuries to people arising out of those incidents has been declining since 1961, so that by 1967, there's a 25% reduction in the casualties or injuries to people arising from these train accidents.
Chief Justice Earl Warren: Might not that be fortuitous, just the fact that you didn't have to happen to have any very large accidents that killed a great number of people and might not that be -- might not that also be to the fact the railroads have taken off most of their passenger trains, where people might be killed?
Mr. Martin M. Lucente: The evidence, Your Honor, shows that the reason for this increase in reportable train accidents is primarily the fact that the standard is stated in terms of damage to equipment and that one of the features involved in determining the damage to equipment is the amount of cost involved in repairing the equipment.
And this $750.00 standard, which has remained inflexible since 1961, has resulted in an increasing number of incidents falling within the reporting requirements, as equipment cost had increased, as labor cost have gone up, the proportion of incidences, in which in this -- becomes a reportable train accident has also increase.
So that the basic point that the record establishes in this connection, is that in so far as safety is concerned, in terms of injuries to people, that there has been improvement in that and that there has been at least a comparable improvement in states which do not require six-man crews.
Justice Potter Stewart: Don't you -- couldn't that be a direct reflection of the fact that there are fewer people in the crew?
In a train accident, the people most likely to be hurt are the crew of the train, if there are only four in there instead of six, that would account for fewer (Voice Overlap).
Mr. Martin M. Lucente: That could account for some of them Your Honor, but the fact is that only a very small number of train accidents have a potential for casualties.
The reported data for 1967 shows approximately 7200 train accidents.
The reportable casualties for 1967 to persons arising out of train accidents is 924, when -- so on its phase, the 924 against the 7000 produces something in the vicinity of 10% of train accidents that result in casualties of any kind.
And when the casualties in train accidents are allocated to specific accidents, so that you take into account the fact that some produce two casualties, others do not produce any, only 6.5% of the train accidents involve casualties.
So, our basic point is that the discussion of train accidents, the emphasis and what has happened to train accidents, is a concern with the mishaps involving property damage, which become increasingly reportable because of the yard stick, which I referred.
Chief Justice Earl Warren: I suppose you would agree that every collision carries with it, the possibility of the casualty, wouldn't you?
Mr. Martin M. Lucente: No, I would not Your Honor.
And may I state my basis for it (Voice Overlap).
Chief Justice Earl Warren: It's just been unlikely nowadays.
Mr. Martin M. Lucente: The collisions that we are referring to here Your Honor are not primarily collisions between two trains moving in same direction or even between two trains moving -- I mean in opposite direction or two trains moving in the same direction.
The commission's classification of collisions also includes collisions from one car raking the side of the other.
And it includes and they are reported as a great many collisions, what happens when a car goes over the hump in the yard at too greater speed, runs into another car at the receiving track and the classification yard and property damage of $750.00 occurs.
That's a collision, there may not be an employee within a great distance of that event.
So I would have to disagree with the statement that collisions inevitably involve a potential for casualties, because many of them occur when there is no potential for casualties.
Chief Justice Earl Warren: I suppose when the car went over an embankment, it might be of casualty so far as some of the employees are concerned, wouldn't it?
Mr. Martin M. Lucente: It might be, yes sir, if there were employees in that area.
Chief Justice Earl Warren: Wouldn't it be?
Mr. Martin M. Lucente: Yes, if there were employees in that area --
Chief Justice Earl Warren: Well, wouldn't there be employees on the train if one of them went over the embankment?
Mr. Martin M. Lucente: Not the switching cars to which I'm referring, you're referring to a train operating over the line which goes over an embankment.
Chief Justice Earl Warren: Yes.
Mr. Martin M. Lucente: The employees are in the caboose and on the head in.
If the derailment occurs in the middle of the train, the employees maybe a long distance from the point of derailment.
Chief Justice Earl Warren: Does that mean they wouldn't be hurt?
Mr. Martin M. Lucente: They might be hurt in the caboose from a sudden stop, but the likelihood of any injury in the locomotive would be fairly remote, with a 150 car train where one of the middle cars derails and goes over the embankment.
Chief Justice Earl Warren: You don't think that would endanger anybody who happen to be in the caboose?
Mr. Martin M. Lucente: If there would be a sudden stop in the caboose and unless the men weren't properly braced, there might be an injury.
But the caboose itself would not necessarily go over the embankment and --
Chief Justice Earl Warren: (Voice Overlap) to the embankment in order to have a casualty, would it?
Mr. Martin M. Lucente: It might, that is correct Your Honor, there could be a casualty from that type of an accident.
Chief Justice Earl Warren: It seems to me we've had recent cases in this Court or eight cases, I believe, where someone sitting in the caboose for a -- in times of a very slight accident up above was hurt very severely.
Mr. Martin M. Lucente: It is possible for that type of casualty to occur when a caboose -- when a train stops suddenly and the occupants of the caboose are not braced and they bounced around in the caboose that does happen.
But to return just a moment, Your Honor, to the collision -- the collisions that you inquired about earlier, page 985 of the record --
Chief Justice Earl Warren: Would you -- would you say from just as a matter of common sense that an increase made number of collisions was not a safety factor but it could be seriously considered in the matter of this kind?
Mr. Martin M. Lucente: I would not say that Your Honor.
I think an increase in the number of collisions without any explanation of why they are increasing would be something of the very great significance in a case of this kind.
But what I've tried to do is to explain the reasons why the reportable statistics do not pertain to anything of great significance with respect to the safety of individuals.
Chief Justice Earl Warren: Well, is there anything in the reportability of accidents that would effect the collision part of your argument, as to whether there might be casualties or not?
Mr. Martin M. Lucente: No, the standard to which I refer is $750.00 standard does not relate directly to casualty potential of the collision.
Chief Justice Earl Warren: But I understood counsel to say that in Arkansas or in other states, there was a much greater increase in collisions during a given period recently than in Arkansas.
Mr. Martin M. Lucente: I do not understand, I don't believe there is data there where it shows collisions by states.
Now, there is (Voice Overlap).
Chief Justice Earl Warren: Not by states by the rest of the country, the rest of the country was considerably higher than in Arkansas.
Mr. Martin M. Lucente: The data with respect to that --
Chief Justice Earl Warren: Is that true?
Mr. Martin M. Lucente: No, the data that I'm familiar with in the record does not permit a comparison between Arkansas and the rest of the country in so far as collisions are concerned.
It does in so far as the entire category of train accident is concerned, but I'm not aware of any breakdown with respect to collisions.
But there is a page in the record --
Chief Justice Earl Warren: We couldn't assume, could we, that if it were related to all accidents, some of them didn't relate to collisions?
Mr. Martin M. Lucente: Yes, that is correct Your Honor.
But the data with respect to collisions does permit a breakdown between railroads operating with firemen and railroads operating without firemen.
And at page 985 of the record there is such a breakdown.
The collisions reportable reported since 1961 are broken down at page 985 of the record into two categories: the collisions experienced by those carriers operating their freight and yard services with 33% of the positions occupied by firemen and railroads operating their freight and yard services with 67% of their service using firemen.
And that breakdown with respect to collision shows that from 1964 to 1966, the group operating predominately with firemen experienced an increase of 31% in collisions by the group operating predominately without firemen experienced an increase of 17%.
Chief Justice Earl Warren: That's yard service not --
Mr. Martin M. Lucente: That's freight and yard service, includes both of them Your Honor.
Chief Justice Earl Warren: We'll recess.
Mr. Martin M. Lucente: Thank you Your Honor.
And I wish to refer particularly to a report made by a so-called National Joint Board with respect to safety of operations following the award of Arbitration Board number 282.
The National Joint Board consisted of representatives of the railroads and of the two brotherhoods representing engine crew employees, the firemen and the engineers.
And the board's report discusses the safety of operations, which the parties make.
I emphasized particularly that the studies made by the Brotherhood of Locomotive of Engineers, which is discussed in this report disclose that the elimination of firemen's jobs had not adversely affected safety of railroad operations.
This report is made in January of 1966, almost two years after the effective date of the arbitration award.
The engineers, I emphasized, as a remaining members of the engine crews and freight in yard service have a most immediate and direct interest in safety of operations.
When the report in question was made, the engineers have been participating in such operations for a period of almost two years.
And the organization undertook to make it study representative of railroads throughout the United States.
The grand chief of the brotherhood relying on these studies stated in a letter to the Chairman of the Committee on Commerce of the United States Senate that the removal of firemen under the award had not aversely affected the safety of the remaining employees and I am quoting "that engineers are now efficiently and safely moving their trains over the road."
I emphasize again that this was a study by the Brotherhood of Locomotive Engineers based on data submitted by its members who had been observing operations without firemen for two years and that study supports the judgment of the District Court.
Chief Justice Earl Warren: Was there any question in there about the engineers getting more money if they didn't have a fireman?
Mr. Martin M. Lucente: Under agreements made with the Brotherhood of Locomotive Engineers, there have been wage increases, which were applicable to operations without firemen.
In other words, the first agreement, the only one which I'm familiar provided that engineers operating in freight service without a fireman would receive an additional of $1.50 per day, that type of agreement was made.
Thank you Your Honor.
Justice Byron R. White: May I ask you this one question, what if the Court didn't reach to (Inaudible), have you lost the case there?
Mr. Martin M. Lucente: I take it under the authorities, Your Honor, that we do have the burden of showing that the safety benefits if any arising from the statute are --
Justice Byron R. White: So, about the (Inaudible), do you still ask that the -- if we disagree with your path, do we then have to base the discrimination purpose?
Mr. Martin M. Lucente: I think the discrimination and equal protection argument --
Justice Byron R. White: (Inaudible) will make it discriminatory.
Mr. Martin M. Lucente: Yes, the discrimination and equal protection arguments might still be valid despite the finding with respect to safety.
Justice Byron R. White: Lower court did not have such --
Mr. Martin M. Lucente: That's right Your Honor, the lower court did not pass on any of those two points.
Justice Byron R. White: You don't think that the -- do you think that the very factors which would show that these laws are related to safety would also show that there's a difference between 50-mile trains and longer trains?
Mr. Martin M. Lucente: Now, the statutes in question Your Honor --
Justice Byron R. White: Roads not trains.
Mr. Martin M. Lucente: The statutes in question Your Honor apply with respect to length of road in the state and switching operations for large railroad can be precisely the same as switching operations for a small railroad.
Justice Byron R. White: Unless your opponents are right in saying that the longer roads have longer trains.
Mr. Martin M. Lucente: But in switching operations, Your Honor, the longer trains would not affect the movements of cars within the switching yard.
When the train first comes into the yard has broken up and operations thereafter are in terms of cuts of cars.
In fact in most instances are the same regardless of the size of the train that comes into the yard.
Justice Byron R. White: What about the freight?
That just go for the switching statute though.
Mr. Martin M. Lucente: The freight operations -- the question of whether the length of line means anything with respect to size of crew Your Honor is answered I believe in the evidence by the fact that the arbitration award of Board Number 282 laid down a series of guidelines, which provided considerations to be taken into account by special boards in determining what the size of the crew should be on particular runs or assignments.
Justice Byron R. White: This is the same kind of an argument that goes to whether or not these laws are related to safety at all or not.
Mr. Martin M. Lucente: The argument does depend ultimately on that, yes.
Justice Byron R. White: And so, if the laws are not related -- are related to safety, you would also lose your discrimination argument, at least in the freight area?
Mr. Martin M. Lucente: If the -- I believe though there is still a valid inquiry as to whether the 100-mile limit and the 50-mile limit is a differentiating circumstances as far safety is concerned.
Justice Byron R. White: Even in the freight area?
Mr. Martin M. Lucente: Even in the freight area.
Justice Byron R. White: Even though it has (Inaudible) on the road?
Mr. Martin M. Lucente: Over the road, a 100-mile railroad might hold a 150 car train, which is then interchanges with --
Justice William J. Brennan: Well, you think the record is such that we can decide that issue here or what we remanded if we don't agree on you --
Mr. Martin M. Lucente: The record does contain a great deal of evidence of the operation --
Justice William J. Brennan: It does?
Mr. Martin M. Lucente: It does, yes Your Honor.
Justice William J. Brennan: We don't have any findings, now do we?
Mr. Martin M. Lucente: There are no findings on that point, but there is a great deal of evidence on the record on the operations of the smaller railroads.
Justice William J. Brennan: Well, ordinarily we don't make findings of that kind, I guess.
However, complete the record, do we?
Justice Potter Stewart: Would you say there's enough evidence -- would you say that we should -- if we -- I suppose you would object just to our even doing it if we did it and ruled against you.
Mr. Martin M. Lucente: Yes.
Justice Potter Stewart: I mean even that you -- would you -- what would be your position if we should remand this case or not?
Mr. Martin M. Lucente: If the question turns on equal protection commerce and the discrimination against commerce points, I believe perhaps it should be remanded to the lower court for taking further evidence and for findings on those issues.
Justice Hugo L. Black: Was there no evidence taken under that issue?
Mr. Martin M. Lucente: There was evidence taken on it Your Honor, we put in a considerable amount of evidence on that point.
And if the question were only one of the adequacy of the record, I don't believe it would be necessary to remand, but Mr. Justice Brennan suggest the lack of findings may require remand in that respect, the findings I felt to be essential, then perhaps it should be remanded for both purposes rather than for just the one.
Chief Justice Earl Warren: Mr. Youngdahl.
Rebuttal of James E. Youngdahl
Mr. James E. Youngdahl: Mr. Chief Justice, may it please the Court.
With reference to Mr. Justice White's last point in the general issue about the justification of a 100-mile classification in switch crews -- switch yard, to be overly candid perhaps, I shutter at the fact of going back to try those case, again we've (Voice Overlap).
Justice Byron R. White: Well, what's the matter of trying it again or weren't these issues involve -- weren't the issues made up -- the issues which were made up in the trial court included discrimination and equal protection?
Mr. James E. Youngdahl: Certainly that is correct.
Justice Byron R. White: And so the case was tried with those issues in it?
Mr. James E. Youngdahl: Certainly, that is correct.
Justice Byron R. White: The record was made close.
Mr. James E. Youngdahl: Yes.
Justice Byron R. White: Which is the question of findings?
Mr. James E. Youngdahl: Well, I understand Your Honor that the compelling principle in a constitutional challenge is that the plaintiffs had a burden of showing that the laws is unconstitutional.
Now, there are cases that the Court is well familiar with, which state that if any state of facts known a reasonably can be conceived that would support the classification if that's sufficient.
Now, there's a good deal of evidence in here that the covered companies --
Justice Byron R. White: That maybe -- some cases that may have said that in equal protection area, but you think they've said that in the commerce area?
Mr. James E. Youngdahl: Well, I don't understand commerce to be involved in a particular --
Justice Byron R. White: Or the discrimination against interest commerce?
Mr. James E. Youngdahl: Well, Your Honor, as to discriminate against interstate commerce, our primary answer would be that the two groups are not all contiguous well-formed interstate covered, intrastate not covered, to the contrary without going into detail at this time.
As to the question of whether or not there's justification for 100-mile classification in yard operations, the evidence shows that companies operate longer trains that are covered, that are not covered, and that longer cost of cars are operated in contrary that as Mr. Lucente said that are covered, that are not covered.
The evidence shows that the companies that are covered carry more volatile materials for example.
Materials that tend to have more opportunity to blow up and blow up a whole town and company that are not covered.
Furthermore, we would rely heavily on the many years of decisions by this Court about mileage classifications and particularly the 1916 decision in this case, in which equal protection involve and all classification arguments involved only the Arkansas switching crew as distinguished from the road freight statute.
In reference to the question about one of the New York Court of Appeals rule on this point, if I may quote just a sentence or two from the decision of the New York Court of Appeals about two weeks ago, “Plaintiffs do not establish on the record, that the statute deny them equal protection of the laws.
Differences in the impact of statutes depend for validity and the rationality, the difference, citing Morey against Doud, and some differences applying to specifically the railroad have been sustained by this Court, citing New York Central against Williams, which was one of the case that we rely on in the previous Arkansas full-crew case.”
It goes on to discuss that further at length.
I'm sure the Court rule for me where I result with.
As to --
Justice William J. Brennan: Are copies of that opinion available?
Mr. James E. Youngdahl: We would be glad to make them available Your Honor, it was just issues about two weeks ago.
Chief Justice Earl Warren: Will you do that please?
Mr. James E. Youngdahl: I will, yes Your Honor, thank you.
As to the question about whether or not there's a passenger crew statute, I want to emphasize that there is a full-crew law statute in Arkansas applying to passenger trains.
The railroads have on some past instances challenge that statute, they do not hear, for reasons which I suggest to have some value in this Court's consideration now.
As to the questions of collision --
Justice Potter Stewart: I don't understand that --
Mr. James E. Youngdahl: I don't understand --
Justice Potter Stewart: What business do you suggest?
Mr. James E. Youngdahl: I don't understand why, if they contend that it's just as safe not to have a fireman, and not just a safe on a passenger train as it is on a freight train.
That -- that's what I mean.
As to the question of collisions, I urge the Court to look at the record in this respect, because I think that that contained extremely persuasive information.
On pages 419 to 500 of the appendix, on pages 48 through 53 of our brief in chief, we answer these or we discuss this matter, and a powerful evidence of the fact that the kind of accidents attributable to crew performance in absence of crew have gone up startlingly.
Since the crew was reduced nationally, now --
Chief Justice Earl Warren: What page was that in the appendix?
Mr. James E. Youngdahl: In the appendix it was pages 419 to 500, a testimony of Mr. Homer.
There were charts , particular charts involving collisions on many pages, including pages 11, 68 to 69, and those are discussed thoroughly in pages 48 through 53 of our original brief.
The railroad suggest that the whole matter here can be explained in terms of reporting requirements.
I point to pages 6 and 7 of our reply brief, with the Department of Transportation quotation, in pages -- issued on April 10, 1968, deals with the matter of railroad accidents and their alarming circumstances, under present and recently developed conditions.
Same thing such as the national transportation safety board review of data, during the past several years for train accidents shows progressively worsening trend in rates, occurrences, deaths, and damage.
Now, as the Court observed in questioning Mr. Lucente, the fact that the casualties may have dropped, could be explained by many thing.
Now, it was a very easy way to handle that, used as an exposure factor, as a factor for measuring casualties main hours, that's what everybody uses as the record shows.
That's what the railroad use in other context, but here they chose to measure casualties by such things as billion gross ton miles.
Obviously, the ton miles per employee is going up great as the crews go down, as passengers go down, as passengers crews go down, as maintenance of rail employees go down, etcetera and as car loading increases.
Obviously, when you measure casualties in terms of billion gross ton miles, you're going to get some kind of a drop, but casualties in terms of some of kind meaningful explanation do not at all result, the fact is they have risen along with train accidents since 1964.
But in any event, about all these statistics, and all of this information, there's a great deal of it in the record.
It seems to us that this is a peculiarly legislative decision, the cause and effect kind of thing, deciding whether it really was caused or really wasn't caused by something which follow another.
And we submit that this is a matter for the Arkansas legislature to determine.
We concede that there's been trend, legislative trend to eliminate full-crew law.
We think we can reverse it with these statistics I just been talking about, and we look forward to any opportunity we have on that respect, but hoped that it not be done to this traditional process.