Delaware & Hudson Co. v. United States , 5 F.2d 831 ( 1925 )

PER CURIAM.

The issues presented by this motion may be summarized thus:

(a) Section 26 of the statute is an unconstitutional attempt to delegate legislative power.

(b) The action of the Commission was not based upon any special investigation of petitioner’s needs or requirements and was therefore arbitrary.

(c) The orders really do no more than require petitioner and others to experiment at their own charges with devices of an untried nature and doubtful utility.

(d) The order of July 18, 1924, was in substance a new order with new requirements, and the Commission had no power under the statute to require compliance with that order within less than two years from its date.

(a) No one doubts the general proposition that Congress cannot delegate purely legislative power to a commission. Interstate Commerce Commission v. Goodrich, etc., Co., 224 U. S. 194, 32 S. Ct. 436, 56 L. Ed. 729. But equally is it beyond question that the Legislature can delegate to a commission the application of general rules legislatively prescribed to particular situations as ascertained by commissions.

Of course the subject-matter committed to the Commission must be within the power of Congress, and surely the regulation of interstate and foreign commerce is as thoroughly within congressional authority as anything can be. Wherefore any question as to the constitutionality of this statute is limited to the inquiry whether Congress has laid down any general rules and left to the Commission the application of the rules so made, or whether Congress has avoided the making of any rules and left their manufacture wholly to the Commission.

We think it plain that Congress has prescribed sufficiently a rule, to wit, that railroads may be required to install “automatic train-stop or train-control devices or other safety devices.” That is the rule. The application of it consists in choosing what railroads shall install such devices, and laying down specifications and requirements for such installation; and this is left to the Commission. . On reason, we see no objection to this procedure. On authority, the matter is quite within St. Louis, etc., Railway v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 L. Ed. 1061; Union Bridge Co. v. United States, 204 U. S. 364, 27 S. Ct. 367, 51 L. Ed. 523; Avent v. United States, 266 U. S. 127, 45 S. Ct. 34, 69 L. Ed. -.

(b) We can hardly think the complaint serious that in the Commission’s reports of June 13, 1922, and July 18, 1924, this petitioner “is nowhere referred to by name.” No reason appears why this or any other carrier should be referred to by name. The serious inquiry is whether there are findings of fact made by the Commission on the subject of these stop or control devices, which on their face are based upon evidence. It would serve no useful purpose to go through the findings of fact in detail. It is enough to state the inferences that we draw from a perusal of these reports.

We are informed by the opinions of the commissioners that there are numerous and differently constructed devices for train control. They are made by incorporated companies competing with each other for business, and that competition largely consists in as nearly as possible procuring the favor of the Commission for a style of device which would let in say one manufacturer and exclude as many of his competitors as possible. There is no one style of device which has met with the approbation of the majority of railway corporations. In fact, railway opinion is not very friendly to devices which wholly or partially do at times take the control of trains out of the hands of men who have spent their lives in learning to manage them. Yet there is plainly a substantial and growing body of opinion, even among railway operators, that a practicable system of train control is near at hand, and sufficiently near so that a prudent railway manager, who wishes to keep up with the times, would incur no blame for putting in at least experimentally a system of train control or stoppage.

We have stated in a manner perhaps ultra favorable for. plaintiff’s contention the impression made upon us by the recital of evidence set forth in the Commission’s reports, plus the statements of plaintiff’s affidavits. It seems to us too plain for discussion that such a situation is one that ’most plainly requires the intervention of an impartial commission or other fact-finding powerful body to push the matter forward, for no progress will he made if accord is waited upon. Some one must decide the matter both in gross and in detail. Congress has decided it in gross, and it had power to say that the Commission should decide it in detail, and we are of opinion that the Commission has decided in' substance the necessary details, to wit, that what has been doné during the last 15 years has “demonstrated the practicability of and the necessity for automatic train stops or train control.”

(b) The assertion under this head of argument is that “Congress never intended and would never have power if it did so intend to require expenditures of railway capital for experimental purposes.” As a proposition of law we cannot accept this, and deem the statement so unsound as to call for some discussion.

In .the whole field of human effort there is no one definable department that requires experiment for advancement more plainly than does transportation. And it is also true that, when it comes to such a scheme as that of automatically controlling the movements of huge trains normally running at high speed, no experiment is possible, except on the railways themselves, under actual traffic eondi-: tions.

Thus the argument amounts to this: That no railway can be compelled to .conduct experiments, although there is no other place to experiment, and no change in existing conditions can he made until experiments are concluded to the point of demonstration. This is merely untrue. It is really the same argument by which efforts have been made to sidetrack any of the other efforts at improvement stated and declared ‘by Congress and carried out. through the ■ Commission; for example, all the safety appliance statutes, hours of service acts, and the like.

(d) The effect of the Commission’s order of July 18,1924, was this: That whereas, for two years, certain of the railroads of the country had been told to make a choice of a certain number of train-stop or control devices, after that date they were given the option to affect any one of said devices with the element of manual or engine-man’s control; and for all that appears the problem of affecting one kind of device with manual- control was an entirely different problem from that of affecting any of the other devices similarly. It is probably true that, if there were, say, a choice of four kinds of control before July 18, 1924, there were eight kinds to choose from after that date.

To call such a change in the effect of an order . a mere amendment is unfair, if not absurd. It was a new order, and a wholly new choice. How new is plainly .shown by the opinions of 1924, which frankly eat a great many of the words used in 1922. To such a situation the two-year clause of section 26 plainly applies.

The plaintiff petitioner may take an injunction against prosecution or other effort to enforce any penalties for failure to install manual control or permissive train-stop or train-control devices before July 18, 1926. In every other respect, the motion for in-junctive relief is denied.