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NEW YORK CENTRAL RAILROAD COMPANY ET AL. v. LOUIS J. LEFKOWITZ (10/10/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43079 <http://www.versuslaw.com>; 241 N.E.2d 730; 23 N.Y.2d 1 decided: October 10, 1968. NEW YORK CENTRAL RAILROAD COMPANY ET AL., APPELLANTS,v.LOUIS J. LEFKOWITZ, AS ATTORNEY-GENERAL OF THE STATE OF NEW YORK, ET AL., RESPONDENTS, AND BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN ET AL., INTERVENORS-RESPONDENTS New York Cent. R.R. Co. v. Lefkowitz, 28 A.D.2d 735, affirmed. Counsel William P. Rogers, Gerald E. Dwyer, Caesar L. Pitassy and David F. Dobbins for appellants. Thomas A. Shaw, Jr., Harold C. Heiss and Richard Cain for intervenors-respondents. Counsel Louis J. Lefkowitz, Attorney-General (Joseph A. Romano and Ruth Kessler Toch of counsel), respondent pro se. I. Appellants' proofs failed to establish unconstitutionality beyond a reasonable doubt. (Matter of Spielvogel v. Ford, 1 N.Y.2d 558; Matter or Van Berkel v. Power, 16 N.Y.2d 37.) II. Section 54-b of the Railroad Law is a valid exercise of the police power. Therefore, the first cause of action based on the due process clause was properly dismissed. Chief Judge Fuld and Judges Burke and Eager*fn2 concur with Judge Bergan; Judge Breitel dissents and votes to reverse in an opinion in which Judges Scileppi and Jasen concur. Author: Bergan


New York Cent. R.R. Co. v. Lefkowitz, 28 A.D.2d 735, affirmed.

Chief Judge Fuld and Judges Burke and Eager*fn2 concur with Judge Bergan; Judge Breitel dissents and votes to reverse in an opinion in which Judges Scileppi and Jasen concur.

Author: Bergan

 This action was commenced in 1961 by the 10 major railroads operating in New York seeking a judgment declaring invalid on constitutional grounds the full crew laws then in effect (Railroad Law, §§ 54-a, 54-b and 54-c) and enjoining their enforcement. In a trial at Special Term commencing in October, 1964, there was a comprehensive factual examination into the reasonableness of the effect of the full crew laws on the operation of plaintiffs' railroads under modern technological conditions and operational procedures.

The trial occupied almost four months; 110 witnesses were heard and there were, in addition, tens of thousands of pages of exhibits received in evidence. The court in a careful opinion (46 Misc. 2d 68) directed the complaint be dismissed and judgment accordingly was entered in April, 1965.

While the appeal taken by plaintiffs to the Appellate Division in May, 1965 was pending, the Legislature repealed two of the three full crew statutes (§§ 54-a and 54-c) and this was approved by the Governor on June 27, 1966. The Legislature refused to repeal section 54-b, although the Public Service Commission, one of the defendants in the action, had suggested the repeal of all the statutory full crew provisions.

Accordingly, when the appeal was argued at the Appellate Division, the only remaining issue was the validity of section 54-b. The Appellate Division affirmed the findings of the Special Term but, modifying on a procedural point explicitly to declare section 54-b constitutional, otherwise affirmed on the opinion at Special Term.

Although two of the three sections encompassing the full crew policy of the State, as challenged in this action, have now been repealed, it seems useful to examine their relationship with section 54-b to help understand the purpose of a manifestly deliberate legislative determination to continue in effect that section. The Assembly rejected by a vote of 120 to 20 an amendment to include section 54-b in the repeal. This decision was made against the argument both of the railroads and the conclusions of some other agencies that conforming with its requirements serves no useful public purpose under present-day operational procedures.

Section 54-a was the original full crew law. It was enacted in 1913 (L. 1913, ch. 146; amd. L. 1921, ch. 290) and provided among other things that a freight train of more than 25 cars be "manned with a crew of not less than one engineer, one fireman, one conductor and three brakemen". Section 54-c, enacted in 1937 (L. 1937, ch. 903), provided in switching or transfer operations trains be operated with a crew of "not less than one engineer, one fireman or helper, one conductor or foreman and two trainmen or two helpers".

Section 54-b, the statute now in issue, was enacted in 1936 (L. 1936, ch. 777) and is addressed to the then growing use of diesel engines to replace steam engines. It provides that every diesel engine ("fuel-electric engine") must be "manned with a crew" of not less than "one engineer and one fireman or helper".

Plaintiffs do not argue that the engineer should be alone in the diesel engine of either a passenger or freight train. They concede there ought to be an additional man there as a helper and admit to be valid the general thrust of the statute requiring this. But they say that their operational rules and uniform practice in present-day, over-the-road freight operation is to place a qualified helper, a "front-end brakeman" in the engine.

This, plaintiffs suggest, adequately meets the statutory requirement for the presence of a "fireman or helper" in freight operations, since the term "fireman" derived from the laws relating to steam engines (e.g., former § 54-a) had no literal application to diesel engines.

Consistently with this argument they concede that in passenger trains where the front-end brakeman does not ride in the engine cab, there must be a helper specially assigned for the engineer and that in this effect on passenger train operation the statute is valid.

In order to come to grips with the suggestion of plaintiffs that the statute is unconstitutional, it is necessary preliminarily to decide two things: (a) whether section 54-b must be read as requiring the assignment of an additional engine crewman to help the engineer, and that this is not sufficiently met by the assignment of a front-end brakeman from the train crew; (b) if the statute is construed to require the helper to be a member of an engine crew, whether the requirement is rationally based in the promotion of safety. The opinion of the Special Term must be read as finding affirmatively on both aspects; and, if this is right, the statute is unexceptionable on constitutional grounds.

Some help in deducing what the Legislature intended in 1936 by the expression "and one fireman or helper" is obtainable both by reading section 54-a as it then existed and by reading the closely contemporaneous enactment in 1937 of section 54-c. The older section (54-a), in effect in 1936 when 54-b was enacted and addressed to steam operations, used the expression as to freight trains of more than 25 cars: "one engineer, one fireman, one conductor and three brakemen".

It was easy to draft this because the positions had well-recognized names developed in railroad usage over many years. It was obvious and inherent in the very names used that the crew on the steam engine consists of engineer and fireman, jobs only related to the engine; and the other places of conductor and brakeman are only related to the train.

But, of course, a "fireman" on a diesel engine is a misnomer. There is no fire and no use for a "fire" man. Diesel engines in 1936 seemingly had not had time to develop a special identifying name for an engine crew member additional to the engineer and have not yet done so. If the purpose was to require an additional man on the engine, the safe approach for the draftsman was to use a term which, although not technically and exactly consistent with diesel operations, had come, by long usage in union, management, and operational relations in railroads, to be well understood and the subject of statutes, regulations and contracts.

Thus, a careful draftsman might use "fireman" but would give free scope to the statute by adding "or helper". When that was written in 1936, of course, it had to be read with 54-a as to the rest of the operational crew. Thus, read together after the 1936 enactment and when related to a long freight train pulled by diesel power, the total crew would be "one engineer and one fireman or helper" and also be "one conductor and three brakemen". This language suggests as to the train crew the continuance of a separate entity from the engine crew and the same kind of distinction between the two which had resulted from the earlier differences in the 1913 statute expressed in well-understood job terms. The 1937 enactment of section 54-c is not conclusive on what the Legislature had in mind in 1936, but it is closely enough related in time and subject matter to throw some light on the legislative belief or disbelief that the crews were being kept intact and separate in the legislative scheme. And it indicates rather reliably what the Legislature meant by "or helper" the year before.

The 1937 statute, as it has been seen, dealt with switching or transfer operations. It described all the crew required in such operations and it affected steam locomotives and diesel engines alike. There must be "one engineer, one fireman or helper, one conductor or foreman, and two trainmen or two helpers". It is difficult to read this in a sense other than to mean that the "or helper" following "fireman" related to a specially assigned engine assistant; and the "or helpers" following the plural "two trainmen" related to the train crew. It is reasonable to think that, as used in 1936 in 54-b, the term "one fireman or ...


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